Author: Edward V. Walsh, III
Reed Smith Client Alert
Reprinted with author's permission. © 2013 Reed Smith LLP. All rights reserved.
This client alert is presented for general information purposes and is not intended to be and should not be taken as legal advice.

A workplace inspection by the Occupational Safety and Health Administration (OSHA) can result in substantial penalties where violations are found. Employers need to know their rights during an inspection, including the right to say “no” to an OSHA compliance officer (inspector) when he or she seeks to inspect a work place. The protocols to be followed by your company need to be established and understood by supervisory as well as non-supervisory employees ahead of time, and reinforced from time to time. All supervisory employees should be well-versed in the company’s OSHA access policy and must have familiarity with OSHA regulations and the company’s programs for compliance. Non-supervisory employees should understand that they have no right to grant OSHA access and should refer any such attempt to management. They also should be briefed on their rights if interviewed by OSHA in the course of an inspection.

When to Expect OSHA

OSHA is likely to show up in one of four situations, which are listed below in the order of priority given by OSHA:

• Imminent danger inspection, which arises out of a complaint about workplace conditions, usually by a current or former employee
• Fatality/catastrophe inspection, which as the name implies, immediately follows a fatality or catastrophe (the latter defined as an accident causing five or more employees to be hospitalized) at the workplace
• Follow-up inspection, which occurs in connection with violations found during prior inspections
• Targeted or programmed inspection, which is a planned inspection generally in high-hazard industries.

Of the four types of inspections, the second type is predictable, and the third somewhat less so. The other two, often arising from employee complaints, are essentially unpredictable and thus difficult to prepare for, thus reinforcing the need to have a policy in place in the event of such an inspection.

What to Expect From OSHA

An OSHA inspection should start with an opening conference that OSHA is required to conduct by law. OSHA personnel are expected to present their credentials, state the nature of their visit and if they have a search warrant, produce it. A company representative should verify the inspector’s credentials, determine why the inspection is sought and, determine whether the inspector has a search warrant and if so, review it and obtain a copy of it along with any other documents presented. The inspector can then be asked to wait until a company safety officer or other official is present or consulted. (OSHA will usually wait a reasonable amount of time.) If the inspector does not have a search warrant, and your company policy requires one, you must instruct the inspector to leave the work place immediately, i.e., do not allow an inspection to start in the first place in order to avoid an argument later that the company waived the right to require a warrant. At the opening conference the company should establish the protocols covering the scope of the inspection including any employee interviews. The opening conference and all subsequent contact with OSHA during the inspection should be handled by company personnel familiar with the company’s inspection policy and able to make decisions on access, etc., or who know to call for such authority. An agreement should be struck with the inspector that any crucial work in process will not be interrupted by the inspection.

The actual inspection, if permitted by the company, follows the opening conference. OSHA inspections can vary in scope from comprehensive “wall-to-wall walk-arounds” to partial inspections focused on a particular operation or location. The type of inspection sought, and the type of inspection that will be allowed, should be established in the opening conference. Do not allow OSHA to turn a limited inspection into a comprehensive one “on the fly”. Do not allow OSHA to have access to any part of your facility unaccompanied.

What Restrictions Are Placed on OSHA

The company has the constitutional right to demand that OSHA obtain a search warrant before conducting an inspection. As noted, care must be taken to not waive this right by allowing OSHA to start an inspection before the right is invoked. The decision to invoke the right should be made in the opening conference once the purpose of OSHA’s visit is determined. Only those personnel with authority can grant access to OSHA, and those lacking such authority need to understand this, e.g., a “line” employee must understand that he or she has no authority to allow an inspection by OSHA if asked.

Whether the company should invoke its constitutional right to require a warrant can be a tough call. Denying access may make sense where the company knows that a serious violation is likely to be found if the inspection proceeds at that time. Conversely, denying access may cause OSHA to have a heightened interest in a facility or facilities in the future. In addition, employees may wonder “what the company has to hide” if OSHA is denied access. Knowing why OSHA is there in the first place, and what it is likely to find if granted access will inform the decision whether or not to grant access or to require a warrant. Keep in mind that OSHA can generally obtain a warrant relatively quickly, i.e., within days. Alternatively, the company may also be able to “buy time” without invoking the warrant requirement. OSHA is likely to accept - for a limited time - that an inspection is inconvenient because of work load at the location or because of the absence of key personnel, or simply because the company would like to confer with its lawyer first. Offering to provide access “in a few days” may make sense and probably reduces OSHA’s fear, compared to a blank refusal, that the company is buying time in order to rectify a known safety violation. This also allows the company some time to prepare for an inspection by making sure that housekeeping is in order, required documents such as injury logs and safety data sheets are in hand and that employees are aware of what is about to happen.

What to Do During the Inspection

The company should designate a safety officer, or other tasked employee, to accompany OSHA at all times during the inspection. Notes chronicling the inspection should be taken (avoiding any editorial comments or admissions that could later be subject to discovery in litigation). It is important to ensure that OSHA’s record of the inspection is not the only “evidence” available should the matter proceed to litigation. Photos, measurements, and the like taken by OSHA should be duplicated by the company. Inaccuracies in measurements or depictions of the worksite, equipment, etc., should be noted and pointed out to OSHA at the time. The company should make no concessions of violations or operational deficiencies because it is unlikely to buy the company goodwill at the time and, worse, can be used against the company later.

OSHA’s Right to Interview Employees

Unless it is beyond the scope of any warrant presented, OSHA has the right to interview employees, including privately. For management employees, the company can insist on the presence of company legal counsel. The company can also insist that employees be interviewed after work hours and off of the premises. Where possible, the company safety officer (or legal counsel) should seek to interview the employees that OSHA is targeting in order to determine what relevant information they may have. Employees are entitled to a copy of any statement that they make to OSHA. All employees should be advised that they only need to answer the questions asked and need not feel compelled to volunteer information of any type.

After OSHA Leaves

Once the inspection is over, a closing conference should be held in which the OSHA inspector should describe any violations found. When the closing conference concludes, and particularly if violations have been alleged, a record in the form of a memorandum from management to legal counsel should be made. A memorandum in this form provides a basis for insulating the record from discovery under the attorney-client privilege. The memorandum should detail the topics discussed with OSHA, who was present, who OSHA spoke with and what was said, and other pertinent details including a chronology of the visit.

With proper planning the company can exert reasonable control over an OSHA inspection, and where violations are found can preserve necessary evidence for later use in litigation or in negotiation of a settlement.