OSHA Alert: How to Prepare for an OSHA Inspection - Part I: Selecting a Company Representative

by Rod Smith and Patrick Miller

In the coming months, OSHA Update will discuss how to prepare for an OSHA inspection. Advance preparation not only eases the disruption of an OSHA inspection, but can minimize a company's legal liability for citations, penalties and abatement.

In this installment, we discuss the most important step to take before an OSHA inspection even takes place -- selecting a company representative. The company representative is the individual charged with representing the company's interests during an OSHA inspection. The representative, ideally the Safety Director or someone in upper management, should be well-versed in OSHA standards applicable to the business, health and safety conditions of the workplace under inspection, location of required records to be kept under OSHA (such as OSHA 300 logs) and the company's health and safety program. A well-versed representative is also familiar with OSHA's own internal procedures for handling an OSHA inspection, the Field Inspection Reference Manual or FIRM at http://www.osha.gov/Firm_osha_toc/Firm_toc_by_sect.html.

The company representative should accompany and supervise all aspects of OSHA's inspection. This can be accomplished by asking the OSHA inspector to wait for the arrival of the designated representative before starting the inspection. In most cases, OSHA inspectors are willing to wait a reasonable time, up to one hour, before proceeding. Where the inspector refuses to wait or where it is impossible for the representative to personally appear, designate a back-up to fill in. The designated representative can then supervise and monitor the inspection by telephone, giving instructions to the back-up until he or she arrives on site.

The company representative should monitor and supervise the inspection to the maximum extent possible. This includes:

• Attending the opening and closing conferences.
• Accompanying and recording all aspects of the walk-around inspection, including: areas of the workplace inspected, names of all employees and supervisors interviewed and identification of any photographs, measurements and samples taken. The representative's notes of the inspection should remain confidential.
• Photographing all areas of the facility inspected, making certain to take "side-by-side" photographs of all areas photographed or video-taped by OSHA.
• Responding to all document and other information requests by the OSHA inspector.
• Making sure that non-managerial employees are aware of their rights during an OSHA interview. (A later installment of OSHA Update will discuss the do's and don'ts of employee interviews.)
• Attending and assisting in all interviews of management employees.
• Keeping the inspection under control. The OSH Act provides that the inspection shall take place at "reasonable times and within reasonable limits." Within the exercise of good judgment, the representative should not allow the inspection to unreasonably interfere with work in progress or run beyond normal working hours. "Partial" inspections should not be allowed to unnecessarily expand into "wall-to-wall" inspections.
• Never admitting violations or unsafe practices, but correcting observed violations as soon as the inspector departs.
• Consulting with the company's legal counsel about difficult or special problems, such as search warrants or subpoenas. As necessary, allow counsel to deal directly with the OSHA inspector.
• Being courteous and polite, but firmly exercising the company's legal rights.

In the case of catastrophic accidents, including as fatalities or accidents resulting in multiple serious injuries, special care must be taken when it comes to the designation of company representatives. OSHA inspections under these circumstances may last several weeks or months, require several inspectors, involve the issuance of subpoenas for the production of records and testimony, and present a number of legal issues not present in a routine inspection. In many instances, OSHA citations resulting from fatality or catastrophe inspections can carry very significant penalties B some in excess of $1 million. Willful violations of OSHA standards resulting in death can carry criminal penalties. Because of the potential liability, added complexity and legal issues involved in a fatality or catastrophic accident, the company should insist that legal counsel be contacted immediately and, if at all possible, before OSHA is allowed to start its inspection or any information is provided. Legal counsel, or the designated representative acting with the advice of counsel, should then closely supervise and monitor all aspects of the inspection.

An effective company representative is essential to the company's success in minimizing OSHA liability. What the representative says or does during an inspection -- and what they don't say or do -- can have a significant impact on how quickly and smoothly the inspection goes and the number and severity of citations issued. Good documentation of what happened during the inspection is essential to defending any citation issued. Without good documentation, especially photographs, the company and its attorneys may have no choice but to rely on OSHA's file and photographs instead.

Advance preparation is everything. When OSHA arrives at the door, it may be too late to decide who handles the inspection and what they should do. Companies are urged to develop an OSHA inspection procedure, executed by a knowledgeable representative, before OSHA arrives.

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:

Rod Smith

Patrick Miller

Chuck Newcom