By Mark A. Lies II & Elizabeth Leifel Ash  

Editor’s note: This is the first part of a multiple-part series offering advice on interactions with an increasing level of OSHA inspection activity. Perhaps the number-one inquiry received right now at CFA headquarters is for advice on how to handle these inspections and, at times, the citations that result. Remember, no matter how prepared you believe your company to be or how infrequent this issue comes to you, with the rising number of critical safety issues found in the new regulations – such as fall protection, silica and now crane operator certification – it is only a matter of time before these conversations come to you. CFA is an advocate for the concrete contractor in all of these situations.

INTRODUCTION

Fortunately, most employers will likely never be involved in an OSHA inspection. For those employers who do become involved, however, the initial response can range from mere annoyance to sheer panic. Unfortunately, if the employer does not respond appropriately from the outset, there is a potential for waiving important legal rights, civil citations, and, if there has been a fatality, potential criminal liability. This article (Part One) will identify a general strategy that can be utilized at the outset of the inspection. Subsequent articles will discuss recommendations to implement once the inspection has commenced.

OUTSET OF INSPECTION

When OSHA seeks to conduct an inspection, it must have legal probable cause to do so. Thus, when the inspector arrives and announces his or her intent to conduct an investigation, the employer representative should be prepared to ask the inspector for his credentials and then inquire as to the basis for the inspection, before agreeing to allow the inspection to proceed. Typically, the inspector will inform the employer representative that he is there because:

• There has been a written employee complaint filed alleging a hazard.
• There has been an accident (since the employer must notify OSHA of an accident within eight hours of an employee fatality, or of three or more employees getting injured in one incident and requiring medical treatment).
• The agency has selected the employer for an inspection based upon a program developed by the agency to address or target a specific workplace hazard (e.g. lead, asbestos, forklifts).

The compliance officer is required to inform the employer as to the basis for the inspection. In the event that it involves an employee complaint, the employee representative should ask for, and is entitled to receive, a copy of the written complaint (without the name of the complaining employee). Likewise, the employer representative should ask for information on the specific programmed inspection that the inspector is relying upon. Once this information is provided, again, before deciding whether to allow the inspection, it is critical for the on-site employer representative to immediately contact senior management, as well as legal counsel, particularly if there has been an accident involving personal injury or significant property damage. The senior management can then discuss whether or not to allow the inspection, who the employer will select for its inspection, who the employer will select for its walk-around team, and what the scope of the inspection will be at the site. The employer representative should inform the inspector that this contact is occurring and that the employer will respond in a timely fashion as to whether it will voluntarily (without a search warrant) allow the inspection. The inspector is required to wait a “reasonable time period” before commencing the inspection, to allow these communications, where senior management and the employer can designate walk-around representatives.

EVALUATING PROBABLE CAUSE

The employer’s senior management, now confronted with the potential inspection and the basis for it (i.e. employee complaint, accident, programmed inspection), must decide whether to allow the inspection, and they must decide this in a timely manner. In deciding, management should consider the following matters:
Employee Complaint

• Is the complaint valid?
• Does it identify the correct workplace, employer or equipment?
• Does it identify a hazard that does, in fact, exist at the worksite?

Accident

• Did an accident involving the employer, in fact, occur?
• Is the accident scene still in existence, or have the conditions changed? (Note: If the accident involved a fatality, the scene is considered immediately “frozen” and cannot be changed until OSHA commences its inspection and “releases” the site. The only exceptions are to allow the employer to shut down equipment that may be hazardous to employees; to respond to a hazardous materials incident, such as a spill or release; or to remove human bodily remains resulting from the accident.)

Programmed Inspection

• Does the employer fall within the criteria for the programmed inspection (i.e. does the hazard exist at the workplace)?
• Does the employer have another basis to challenge its selection under the program criteria (e.g. its accident, injury or illness statistical data fall below the criteria for authorizing the agency to conduct a programmed inspection and thus the employer should be exempted from the inspection)?

The process of evaluating the foregoing inspection bases should include the employer’s safety and health professionals; senior operations personnel; and, particularly when there has been a fatality, serious personal injury or significant property damage, legal counsel.

SCOPE OF INSPECTION

Assuming that the employer has decided to allow an inspection on a voluntary basis (the employer also has the option to demand a search warrant from the agency, which is a technical legal decision that must involve legal counsel), the next issue will involve the scope of the inspection – that is, where will the inspector be permitted to go at the worksite and what operations will the inspector be allowed to view. This determination is also critical. If the employer allows the inspector broader access than would be allowed to evaluate the “hazards” identified in the employee complaint, the “accident” site area, or hazards that are outside the scope of the hazard referenced in programmed inspection, then the employer is subject to citations for anything that the inspector observes. This is because the employer voluntarily allowed a broader inspection to occur. Whatever the inspector observes during the walk around that is in plain view is subject to citation.

Of necessity, this employer determination is on a case-by-case basis, considering the differing worksite operations and the bases for the agency’s inspection. Once this determination has been made by management, which should occur expeditiously, it will be necessary to communicate this determination to the inspector. This way, the employer and inspector can reach an informal agreement, if possible, regarding the scope of the inspection.

CONCLUSION

The on-site employer representative must immediately initiate the employer’s assessment of the bases for the proposed inspection. This initial work must involve appropriate senior management and legal counsel in the proper circumstances. Unless the employer has preplanned for this contingency with the onsite representative initially interfacing with the inspector as indicated above, the employer’s ability to control the inspection will be lost through confusion and indecision.

About the author:

Mark A. Lies, II is a labor and employment law attorney and partner with Seyfarth Shaw LLP, located at 233 S. Wacker Drive, Suite 8000, Chicago, Illinois 60603. He can be reached by phone at 312-460-5877 or by email at mlies@seyfarth.com. He specializes in occupational safety and health law, related employment law, and personal injury litigation.