The whys and wherefores of OSHA inspections and compliance

By G. Phillip Shuler

Occupational Safety and Health Administration (OSHA) compliance is certainly nothing new for contractors. Some, or perhaps many of you, likely spend a lot of time each week, month and year ensuring that your company and its worksites are OSHA compliant.

From periodic toolbox talks with your crews about OSHA regulations to the day-to-day practices that prudent contractors implement to make certain that they are in full compliance with OSHA regulations, the business of becoming and remaining compliant is not always business friendly.

So what should you do if or when OSHA inspectors appear to inspect your worksite?

Here are some practical guidelines that may help you prepare for such a visit, whether announced or not.

Perhaps the first and best thing you can do as an employer is to ensure that your employees are properly trained and know what to do when an OSHA inspector presents him- or herself at your worksite. Your supervisor or responsible employee should:

• Make certain that the OSHA inspector presents appropriate credentials

• Have the OSHA inspector wait in a designated area if those responsible for interfacing with the inspector are not present

• Have the OSHA inspector articulate the reason for the inspection - is this an imminent danger inspection, a fatality or catastrophe inspection, a complaint or referral about a safety hazard, or simply a programmed inspection?

• Determine the scope of the inspection - is it limited to a specific area, piece of equipment, period of time?

• Be truthful in responding to questions - facts, even bad facts, are better than misrepresentations.

• Be specific in responding to questions - answer the question that has been asked and do not feel compelled to volunteer information about which the inspector has not inquired.

• OSHA 300 logs - make sure they are complete and up-do-date, and be prepared to open them to an inspector if asked. Again, do not simply volunteer this information, but be prepared to comply with a request for its production.

• The walk-around with the inspector is important - be cognizant of people, times, machinery etc. Reduce your observations to writing, take pictures, or do anything of the sort that may later help to establish the company's position or refute an incorrect assertion or citation.

• If one or more citations are issued following the inspection, do not hesitate in taking responsive action. OSHA enforcement regulations contain specific time periods that you must comply with and your failure to do so timely may result in a bad outcome.

• Attend an informal conference with OSHA and make a very strong and compelling showing why the citation is without merit, if that is in fact the case. Be prepared to argue why, for example, a regulation allegedly violated is inapplicable, or why a proposed penalty is excessive.

• Arguments such as these, even at an informal conference, should be well-reasoned and presented by one who understands the issues. It is often helpful, though not required, to have counsel attend the informal conference.

• If, after the informal conference, an agreement cannot be reached regarding one or more of the citations, be prepared to litigate the issues if there are sound bases for doing so. Multiple OSHA citations can prove extremely costly.

This list of OSHA compliance pointers is, of course, not exhaustive.

There are many of the OSHA compliance and enforcement process: the investigation, preliminary administrative proceedings, proceedings before the Occupational Safety and Health Review Commission and the list goes on.

Employers who are proactive about OSHA education, training, worksite safety and general compliance clearly are in a much better position in the event of an inspection. It may be worthwhile to periodically review your company's education, training and OSHA compliance programs to make certain that they are what they should be.

The time to find that out is not when an OSHA inspector comes knocking.

Editor's Note: G. Phillip Shuler is a partner in the New Orleans office of Chaffe, McCall, Phillips, Toler & Sarpy.