by Roger Francoeur
You just made it out of a weekly construction project meeting relatively unscathed, having had to broach the subjects of scheduling overruns and shrinking contingency funds with your customer. Now it’s back to the work at hand and hounding the masons (or was it that demo crew?) who are holding the schedule up by a week. Then you get the unexpected site visitor, an area OSHA compliance inspector.
It happens frequently and to be proactive, it is a good idea to have a basic plan to deal with that contingency. Needless to say, having adequate safety programs, regular safety meetings, management participation and wholehearted implementation and compliance efforts are the first steps. Diligent inspections for hazards by each contractor and subcontractor’s OSHA-competent person at the site are also necessary. After that, a basic checklist for handling an OSHA inspection will allow you to approach an inspection in a planned, consise manner.
First, it is always a good idea to check the inspector’s credentials and have the inspector identify the type of inspection to be conducted. Ask for copies of formal complaints, if any were filed. Check with management and/or legal counsel to determine if a warrant should be requested.
Designate a team to meet with the inspector and accompany the inspector during the inspection. Someone should be appointed as the team leader and liaison. Your safety department should also have a representative on the team. Team members should be familiar with the Occupational Safety and Health Act and your company’s rights and responsibilities. For the opening conference, introduce team members and ask for details on the purpose and scope of the inspection. For the inspection, bring along note pads, cameras, copies of the OSHA standards, and site logs. The inspector should be escorted at all times and all document requests or subpoenas should be directed through the team leader immediately. Answer all questions truthfully and clearly, but often times you will be better off not volunteering information – just give the facts in your answers. Take copious notes.
You have the right to insist that all document requests made by OSHA be made in writing and to screen such documents for trade secrets, confidential information, or attorney- client privilege. Obviously, if the inspection is the result of a serious injury or death, consult with your legal representation immediately.
Ask for copies of all pictures taken by the inspector and if any industrial hygiene sampling is to be performed, find out the details and make arrangements with a Certified Industrial Hygienist to complete side-by-side sampling. Always be professional and courteous with the inspector, and do not argue if you disagree with his or her opinions.
If the inspector requests to interview employees, remember that the employee has the right to refuse to speak to the inspector, ask that you be present during the interview, or the employee can request to speak privately with the inspector. You can insist that interviews do not interfere with your business operations and that lengthy interviews be scheduled in advance.
If the OSHA compliance inspector brings to your attention a potential violation, review corrective actions with the inspector and implement corrective measures immediately, if at all feasible and without admitting guilt.
Finally, insist on a closing conference with the inspector and team members. Identify misunderstandings, if any, and correct them as much as possible. However, do not make unwarranted admissions. Come right out and ask what, if any, citations may be issued and if they will be classified as serious, non-serious, repeat or willful. Be sure that all reports to be made by the company are completed on time and are reviewed by your counsel prior to submission.
If you do receive a citation, you can request a follow-up informal conference to review other information you may wish or to discuss an informal settlement. Typically, you will have 15 working days following the citation to file a notice of contest.
If you haven’t had the pleasure of an OSHA inspection yet, you may also want to consider a mock audit by an ABIH-certified industrial hygienist and/or certified safety professional. Your best defense for an OSHA inspection is to identify your regulatory needs and come into compliance before an accident and before OSHA arrives at your doorstep. Work well and be safe.
Roger Francoeur, president of RPF Environmental, has been providing EH&S consulting, hazmat assessments and indoor air quality testing services throughout New England since 1986.