The Occupational Safety and Health Administration (OSHA) has jurisdiction over approximately 7 million worksites in the United States. In 2020, OSHA conducted 21,674 inspections, a number that was significantly down from previous years due to the COVID-19 pandemic. Many of these inspections (60%) are unprogrammed and result from employee complaints, injuries, and fatalities or referrals. An additional 40% are programmed inspections that specifically target industries with known hazards.
OSHA investigations, particularly unexpected visits, can be stressful, but knowing what to expect can help. Here is what you need to know about OSHA investigations so that you and your team can be fully prepared and knowledgeable about what to expect, should an investigation arise.
Before the Inspection
It's too late to appoint a company representative once OSHA arrives at your worksite. Be prepared for a possible investigation by selecting a company representative who understands safety regulations to help manage and supervise the OSHA visit, whenever one may occur.
Documentation is critical. Ensure your representative takes notes and pictures wherever possible of any noted infractions or issues. These should also be corrected as soon as possible at the direction of the representative. The representative can help ensure employees understand their rights during the OSHA interview process. In the event of a catastrophic event or fatality, you should also contact legal counsel as quickly as possible to help mitigate further risks and liabilities.
The Opening Conference
The opening conference with the OSHA inspector is your chance to find out what will happen during the inspection and to ask questions. This is also the time to confirm the inspector's credentials and request a copy of the complaint, if there is one. Labour and management participate in the initial conference, but both can request a separate meeting. This meeting can also include other employer representatives if, for example, you have contractors or other non-employees working on your site. Before the walkaround occurs, the inspector may request to view your OSHA required records and logs.
The walkaround is the most crucial aspect of the inspection. This is where the inspector will tour your worksite. By law, your company representative is allowed to accompany the inspector, and your employees are also entitled to a representative if they request one. The inspector will often document what he or she sees with notes, photographs and video. Inspectors will not share these with the employer, which is why it is essential to have your employer representative collect similar evidence. Inspectors may also videotape discussions with employees, and it's crucial that employees understand their rights concerning taped interviews. They can request that no audio or video recordings be made of their statements.
During the walkaround, the inspector may point out issues and violations. When this occurs, it is important to correct them as soon as possible, even during the walkaround, as a gesture of good faith. This good faith may help you later in the process.
Many citations are mainly based on the statements of employees or supervisors. Employees have the right to request that a representative — union, supervisor or interpreter — be present during the interview. However, management does not have the right to insist that their representatives be present during the employee interview. OSHA also offers an interpreter service via headset.
Supervisors may also be interviewed, and it's important to note that what a supervisor says can be binding for a company. The inspector may elect to record these interviews, but both employees and supervisors have the right to refuse or to bring their own recording device. OSHA will expect timely interviews but will also attempt to minimize disruptions to your operations whenever possible.
The Closing Conference
The inspector will meet with the employer to discuss violations in a closing conference that can be held immediately after the walkaround, or within a few days or weeks of the walkaround. Employee representatives may also attend. The inspector will explain the citations and the options available to the employer, including settlement or appeal. This meeting provides an additional opportunity to request clarification about any infractions and ask any questions about the inspection or process. It is important to note that challenges to the citation are rarely successful at this point. The inspector may suggest that you make your objections during the settlement proceedings or as part of an appeal of the findings.
Immediately address any violations or safety hazards you didn't deal with during the walkaround, even if you plan to contest the inspection results. Again, this is a sign of good faith. OSHA will mail citations to you with a few days or weeks of the closing conference, and you must post a copy at your worksite.
OSHA's primary consideration is with keeping workers safe and not collecting fines or enforcing penalties. So, OSHA and the employer can often work out an informal settlement to correct the hazards and resolve any citations.
If the situation is unresolved, the employer has fifteen days after receiving the citation to appeal either the citation or the penalty. This can be done by sending a written notice to the OSHA Area Director. The director will forward the citation to the Occupational Safety and Health Review Commission (OSHRC) for an independent review. If the settlement is not settled or successfully challenged, it will become a final order of the OSHRC.