21 Jun Tips for Handling the OSHA Inspection Walk-Through

Being prepared for an OSHA inspection is a must. When the OSHA inspectors actually show up at the door, though, there’s much to be considered from a legal and cooperation standpoint.One initial question that we get often — from that client who has an OSHA inspector waiting in the lobby — is whether they should turn the inspector away and require the inspector to obtain a warrant. That certainly is an option, and one that may be considered. We have never actually seen that occur, or advised anyone to do it, though. In an extreme circumstance where there is an on-going problem that you know is severe, then that may be a worthwhile approach to buy more time. But, that would be quite rare. In most other circumstances, requiring the inspector to leave and obtain a warrant will only increase the odds that the inspector comes back with less incentive to cooperate.

In our experience, though, inspectors usually understand that there is an appointed person or two that is supposed to handle OSHA inspections for each company, and they are normally willing to wait a reasonable amount of time (in the lobby or job trailer) for that person to arrive. This happens quite often with our construction clients, when OSHA inspectors arrive at job sites away from the home office, and will wait (especially if the company has been cooperative in the past) for the company’s safety director to arrive. There is a limit to that time, however, and someone who is on the site should be prepared to handle the inspection if necessary. Likewise, if it is a situation involving an accident or imminent danger of an accident, then the inspector is much less likely to wait for any particular person to arrive. Be aware, though, that the inspectors can, and do, sit off-site before inspections of construction and other visible sites and take videotape of on-going work.

Preliminarily, whenever the inspector arrives and is ready to start the inspection, it is absolutely necessary for the company representative to determine why the inspector is there. Normally this will occur during the “Opening Conference,” and the company representative should ensure that there is some “sit down” time before the walk-around occurs. Why is the scope of the inspection important? Because if the inspector is there for a general, scheduled inspection then he or she is most likely to want to see the entirety of the workplace, e.g., the entire factory floor. If, on the other hand, the inspection is the result of a specific complaint or an accident involving a particular piece of machinery, then that is not a general inspection, and the employer can limit the inspection (and the observations) to just that targeted area of the facility. In either event, the inspector is likely to ask for basic safety & health documentation to be provided.

During the time that all of this is occurring, it is acceptable to remove employees, subcontractors, workers, etc. from doing what they were doing, and to even take a break so there is not activity occurring during the walk-through. This also might provide a chance for a quick safety overview by everyone on the site, including getting all PPE (personal protective equipment) in place if it isn’t.

Once the actual walk-through begins, there are some specific tips to remember when the inspector walks around the premises, which will help avoid any unnecessary problems that could otherwise arise.

As the inspector performs the walk-through inspection, he or she will be asking questions, interviewing witnesses, taking information and photographs. During the inspection, there are some important things to remember:

• Only take the inspector to the area in question (if the inspection is other than a general one). This might include taking the inspector outside the building and entering from a side, or back entrance that is closer to the targeted area. Even on a targeted inspection, whatever the inspectors see while there is fair game for a citation.
• Walk with the inspector and stay with him or her at all times. Make sure you have any necessary PPE.
• Do not agree or disagree with any findings by the inspector, and certainly do not admit any violations.
• Politely give the inspector any information that he or she requests and be honest, but only answer questions asked and do not give additional information beyond the specific questions asked.
• Allow the inspector to take photographs, video and measurements, but take your own photos and measurements that track what the inspector takes. Also, take notes of all comments made by the inspector. Realize that the inspector can talk with employees privately so you may not be able to be present during those discussions. If you are, then take notes on what is asked and said.
• If the inspector identifies any problems that are easily corrected, then correct those right there, or have someone do that.

Overall, keep in mind that an attitude of cooperation and respect is important at this point in the process. The inspector has some latitude in how he or she handles certain aspects of the inspection, whether every little thing gets cited, and at what level the citation and penalties are recommended. You must be prepared to limit your company’s exposure, though, and knowing these tips can be quite helpful.

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This article comes to us from our friends at Gentry Locke Attorneys (www.gentrylocke.com). With more than 50 lawyers practicing across a range of disciplines from their offices in Lynchburg and Roanoke, VA, they help companies, institutions, organizations, and individuals meet their legal and business challenges.