How to Prepare for an OSHA Inspection - Part III: The Walkaround Inspection

by Rod Smith and Patrick Miller

As part of an ongoing series, OSHA Update is providing information to employers on how to prepare for an OSHA inspection. Our first installment in the series covered the issue of "Selecting a Company Representative". Last month, we addressed "The Opening Conference and Records Requests". This month we discuss the Walkaround Inspection.

The actual inspection of the workplace is the most critical phase of OSHA's inspection. In many cases, all of OSHA's evidence as to whether a violation exists results from the efforts of the inspector during the walkaround inspection. Here are points to remember when it comes to the walkaround inspection:

• The law provides that a representative of the employer shall be given an opportunity to accompany the inspector. Always exercise this right. As we have discussed in previous Updates, employers should designate a company representative far in advance of any OSHA inspection. If that representative is not immediately available when the OSHA inspector arrives, request that the inspector wait patiently until that representative can arrive to begin the inspection.
• The law also provides that a representative authorized by the employees, usually a union representative, shall have the right to accompany the inspection. Generally the employer has no say in the selection of the employee representative.
• Typically the inspector will photograph or videotape the workplace, take critical measurements and conduct environmental samplings, such as air samples or noise measurements, depending on the type of inspection involved. Unless trade secrets are involved, the employer generally has no right to object.
• If the inspector wishes to inspect areas that are not related to the purpose of the inspection, the employer representative should inquire as to the reason for such an inspection.
• Caution should be exercised if the inspector attempts to videotape statements by employer representatives. Politely inform the inspector that you do not wish to be videotaped.
• The employer representative should take his or her own photographs and measurements either during or immediately after the OSHA inspection. Also, take good notes of what the inspector does during the inspection.
• Complex health inspections, involving air contaminants, noise or "ergonomic hazards" pose special issues as the employer representative may not have the expertise to effectively monitor or replicate OSHA's scientific monitoring. In such cases, the employer should consider designating its own expert to accompany and monitor those portions of the inspection and, if appropriate, do side-by-side testing and observation.
• In many cases, unsafe conditions are observed during the walkaround inspection. If possible, the employer should always correct unsafe conditions observed during the inspection as soon as possible or after the inspector departs. In the event a citation is issued, this corrective action will demonstrate the employer's good faith and may result in a lower penalty. On the other hand, failure to correct an unsafe condition pointed out by the inspector could result in higher penalties or a willful violation.

Next month, we will be discussing management and non-management interviews.

Who We Are
Rodney Smith, Pat Miller, and Chuck Newcom are part of Sherman and Howard's Labor & Employment Law Department practicing in the areas of occupational safety and health law. We routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.

For more information please contact one of the members of the OSHA Practice Group: