What do you do if an Occupational Safety and Health Administration (OSHA) inspector arrives at your door and asks you to consent to an inspection of your workplace?
Are you required to consent? And what if you refuse?
As you can see, even before an OSHA inspector is through the door, there are important questions to answer.
Although many issues and questions may come to mind, there are certain “best practices” that any employer can implement – before, during and after any OSHA inspection.
The first best practice is to start preparing before any inspection occurs. Perform a self-assessment: consider how your organization has been performing in terms of safety.
For example, have you received any OSHA citations previously? Have there been any workplace accidents? Do you have a written safety and health program?
These are the types of questions to ask.
It is critical to have an effective, written safety program and implement effective workplace protocols that address (at a minimum) the safety hazards your employees are most likely to face.
There needs to be sufficient training, communication and accountability.
Another important best practice is to designate one person (most likely a safety employee) to serve as the company representative for any future inspections. In such case, if an inspector shows up, you will know who to call and there will be one consistent voice for the company.
It’s important to note that an OSHA inspector will usually show up without a warrant.
Although you have the right to refuse consent, it will only be a matter of time before the inspector returns with the warrant.
In certain instances, you might consider withholding consent temporarily, for example, to permit a key employee to arrive at the site. Further, you can condition your consent on negotiating a reasonable scope and conditions for the inspection.
Once the actual inspection is underway, your designated company representative has the right to, and should, accompany the inspector wherever he or she goes during the inspection.
The representative also has the right, during the inspection, to duplicate any tests conducted by the inspector, take side-by-side photographs, conduct his or her own measurements, etc. Your representative should take detailed notes of everything.
In the event that you later receive a citation, there is one critical deadline to keep in mind: you have 15 working days from your receipt of the citation to request an informal conference with the OSHA area director and/or formally contest the citation.
Do not miss this deadline. If you do, the citation will become final.
When receiving a citation, informal conferences are popular because they present an opportunity to negotiate a penalty reduction, extension of abatement dates, deletion of violations, and/or reclassification of violations.
Note: appearing at an informal conference does not extend your time to contest the citation (the same 15-working-day period applies).
Finally, even if you cannot refute that the alleged violation occurred, one or more procedural and/or substantive defenses may provide a basis to contest the citation. Any decision to contest must be made in good faith.
About the author: Michael Rubin is a Partner with Goldberg Segalla LLP. Mike focuses his practice on complex and high-exposure litigation, New York Labor Law, and OSHA liability and citations and is a frequent author and lecturer on these matters. He is a co-editor of Goldberg Segalla’s OSHA: Legal Developments and Defense Strategies blog.