Chapter Corner

How to Handle an OSHA Investigation

Posted in: Features, May/June 2016

OSHA-Investigation.gifEvery company cares about safety and health in the workplace and want their employees to remain healthy. In an effort to protect their employees, companies invest substantial time, effort, and money in trying to create safe and healthy work environments. They would do this without regard to government regulation. Managing compliance with federal and state Occupational Safety and Health Administration (OSHA) requirements, however, is an indispensable part of managing safety in this day and age.

In an OSHA investigation, there is not only a review of on-site conditions or records, but also a concentrated effort to unearth information from the past as well as the present. This is done partially through observation and casual questioning regarding conditions; but more importantly, it is done through an in-depth examination of documents and utilization of private one-on-one witness interviews, including both hourly and supervisory personnel.

An OSHA compliance officer is a professional investigator, whereas a contractor is not. Contractors must be aware of and prepared to respond to the questions that may be asked in interviews. Will the questions be properly phrased to illicit the truth or will they be confusing to the witness? Can the witness have assistance from the contractor? What if OSHA demands documents that you do not believe you should have to turn over? Can OSHA hold a contractor responsible for past events? Can OSHA increase enforcement because of conditions a contractor had notice of previously? 

These are all questions that contractors need answered so that they can protect their employees and their company if an OSHA compliance officer happens to come knocking at their door.

WHAT TO DO WHEN OSHA IS ON THE JOB SITE

When an OSHA compliance officer  shows up at your job site, it is almost  always an enforcement event and not just an inspection related to specific conditions or an audit of records – and it is rarely, if ever, a “random” inspection. Prudent contractors should be prepared in advance because OSHA has shifted to an enforcement strategy involving inspections and citations, rather than a compliance strategy involving education and prevention.

It is in every contractor’s interest not only to be safe, but also to have a good safety compliance record. It is important to safeguard the company’s interest in all types of OSHA events. Many companies receive regular OSHA inspections, while many other companies never get inspected. All companies have continuing affirmative obligations and all are potentially subject to an investigation by OSHA at any time. It is also in every company’s interest that it not be subjected to unfair investigative techniques and that OSHA’s factual findings are not based on inappropriate speculation.

Inspections and investigations by OSHA are initiated for any number of reasons. If a compliance officer is on your job site, you first need to know why. And the answer can significantly affect how you respond. In the case of a fatal accident, you know why an investigation is being initiated.

A fatal accident is the worst thing that can happen at the job site. It affects every employee. One minute, everything is fine and no one can imagine that something terrible is about to happen. The next minute, everyone on the property is in shock. The unimaginable has happened. Not only is the event emotionally devastating, it also throws the company immediately into a legal morass.

Company officials need to be prepared to respond to serious situations that they hope will never happen. They need to be prepared and then hope that their preparations are merely “insurance” and will never have to be implemented. Accidents and all other circumstances that prompt OSHA investigations must be prepared for well in advance so that the company will know what to do immediately when dealing with the unexpected.

No OSHA inspection is routine. Agency investigations and audits can give rise to very serious legal consequences. Civil penalties can be extremely costly. Even criminal prosecutions are a possibility in extreme circumstances – and you never  know what is extreme until the facts  are uncovered during an investigation.  Accidents can give rise to civil liability and they can raise potentially complicated workers’ compensation and insurance  issues as well as lead to regulatory liability. On top of all that, inspections conducted by OSHA can have an impact on workforce morale, which can result in major sanctions against the company.

These tips can help a contractor through an OSHA investigation and are important, but not exhaustive, elements of an OSHA inspection response plan:

  1. Immediately alert the company’s on-site safety director, company-wide safety manager, other senior management, and, possibly, the company’s OSHA counsel. Know who your response team will be in advance.

  2. Review the OSHA compliance officer's credentials and determine the purpose of the inspection. Ask about the officer's background. Does he or she have construction work site safety experience? What did he or she do before OSHA?

  3. Determine whether to require a search warrant before permitting the inspection to proceed - consult with your OSHA counsel for this determination. If not, establish the scope of the inspection before it begins. If that scope is not respected by the compliance officer, you may stop the inspection by withdrawing your permission to continue the inspection without a warrant.

  4. During the opening conference, confirm the ground rules about the scope and other details of the inspection, such as the areas to be entered or operations to review.

  5. During the inspection, stay with the OSHA compliance officer at all times. Be the officer’s “shadow,” which includes taking the same photographs and measurements. If unsure of the compliance officer’s actions, ask him or her why they took a photograph, video, or measurement. Take extensive notes of what the officer observes, people spoken to, and what is said.

  6. Be careful what you say to the compliance officer; it may be considered an admission. Never argue with the officer, although you may point out that there is no hazard, employee exposure to any hazard, or that the standard does not apply.

  7. If the compliance officer believes there is a violation and it can be corrected or abated immediately, then do so. If it cannot be abated immediately, try to determine exactly what the officer believes is required for abatement.

  8. During the closing conference, focus on seeking information from the officer rather than providing information to him or her, and ask the officer specifically why an apparent violation exists: what is the hazard, where is the exposure, why does the standard apply, etc.

  9. Based on discussions with the compliance officer and his or her actions during the inspection, plan your next actions in the investigation. OSHA has strict time limits on investigations.

  10. For example, do not agree that any hazardous condition exists or that any particular time for abatement is adequate or reasonable.

Having and maintaining a robust safety program and culture will help keep OSHA off your front steps, now and in the future. However, following these tips places you well on your way to properly handle an OSHA investigation and mitigate legal consequences should an investigation occur.

Phillip B. Russell is an OSHA lawyer who represents electrical and other contractors in all matters relating to workplace safety and compliance, among other labor and employment law issues. He is a shareholder in the Tampa office of the international labor and employment law firm, Ogletree Deakins. Phillip can be reached at phillip.russell@ogletreedeakins.com and (813) 221-7265.