NEW YORK—The federal Occupational Safety and Health Administration is poised to begin 2016 with new challenges and increased on-site employer inspections. With that as the backdrop, how should you react if an OSHA inspector shows up at your office?

Typically, the responses of employers, their workers’ compensation insurance carriers, insurance brokers and company counsel are varied. To help avoid possible errors that may be unforgiving, here are some practical tips on how best handle an OSHA inspection at each phase of the process, so you can stay focused on your business.

Before the Inspection
Do…
Always protect your trade secrets. Identify records containing trade secrets now, especially safety audits.

Consult with your workers’ compensation broker or insurer. Their advice is invaluable.

Review your policies and procedures. You really cannot claim employee misconduct if your policies are not documented in advance.

Don’t…
Falsify reports. You can be criminally liable for falsifying data on OSHA 300 logs or other records.

Fire an employee for absence due to a work-related injury. Termination could be deemed an unfair employment practice and invite a discrimination claim.

When OSHA Appears at your Office
Do…
Show courtesy. Being professional and courteous can go a long way in opening the lines of communication. You can reduce penalties significantly by demonstrating good faith, so set a constructive tone.

Ask questions. You are entitled to know what is being inspected and how the process will proceed. Take advantage of the opportunity to learn what hazards exist at your workplace, and whether other employers have found quick, inexpensive ways to fix them.

Take pictures. If you get cited, you will not have immediate access to the case against you. Have someone walk with the investigator, ask what he or she sees, and take the same pictures, video and measurements he or she is taking. This information helps immensely in defending citation contests.

Let an employee representative participate. Employees may select a representative to accompany the inspector during the inspection, and receive continued notice after the inspection. This occurs more often when employees are represented by a labor union.

Don’t…
Fail to meet them when they arrive, or shut down. Interference could be viewed as obstruction, which can carry criminal penalties and make the process worse. Remember, your obstruction can result in the inspector obtaining a warrant and you will be inspected nonetheless. You can request a short wait while you get a manager or safety director. If you’re busy, have another safety professional or manager stand in for you.

Falsify any information. Obstructing an inspection can carry criminal penalties. So answer each question honestly and succinctly. Once you have answered a question, let the inspector lead the conversation.

Coach employee responses. Pressuring employees to answer questions your way could backfire. You do not want your employees telling the OSHA inspector one thing while you are in the room, and then giving a different story once they are in a private interview.

If You Receive a Citation
Do…
Post the citation. Employers are required to post citations. Your employees probably know (and may have reported) the hazard, so using this opportunity to acknowledge any deficiencies and address them could enhance employee confidence in your efforts on their behalf.

Consider the cost of contesting. Once you receive a citation, you have just 15 business days to make an important decision. If the citation includes heavy penalties, or if abatement requires an unnecessarily burdensome change to your core business model, you may wish to contest. But contesting a violation not deemed “serious” may drain time and resources unnecessarily. Good advice from experienced counsel can help you evaluate whether a legal contest is worth it.

Consider early settlement. By requesting an informal conference, you can get quick answers as to whether OSHA might reduce, group or eliminate the initial penalties. Come in the spirit of cooperation, with knowledge of the regulations, safety technology and the personnel in the regional office.

Consider voluntary compliance. Employers with consistently low injury and illness rates and strong safety process management systems may be eligible for the Voluntary Protection Programs or the Safety and Health Achievement Recognition Program. Participants in these programs are removed from scheduled inspection lists. They also enjoy significant workers’ compensation, insurance and other cost-savings, and are billed as preferred businesses and contractors.

Don’t…
Assume a long waiting period means you are in the clear. OSHA can take up to six months to issue a citation. The more serious ones generally take much longer to prepare.

Fail to abate. This is a great time to be proactive in showing you are serious about safety. You want to be ready in case you get a follow-up inspection, as OSHA multiplies penalties if you fail to abate a cited hazard, repeat a violation or willfully fail to abate a known hazard.

Presume you are being targeted. Many inspections are directed by a random list of employers in high-hazard industries. Other inspections are opened because of a complaint or referral, a reported incident, or because an inspector noticed a hazard while driving by. Leave the conspiracy thinking to the conspiracy theorists.

Avoid Retaliation Claims
Do…
Be on your best behavior. Call in your management team and make sure it is treating everyone well and fairly.

Be hands-off regarding complainants and interviewees. Even casual questioning by a manager can give the perception of retaliatory action.

Don’t…
Terminate a worker for absence due to a work-related injury. An employer policy of discharging employees absent from work less than six months due to a compensable absence under a state workers’ compensation statute may constitute an unfair employment practice.

Retaliate for whistle-blowing.

Being on pins and needles after an inspection is natural. Use the occasion as an opportunity to implement or reinforce your safety program and incentive system.

Hedley Lawson, Contributing Editor
Managing Partner
Aligned Growth Partners, LLC
(707) 217-0979
hlawson@alignedgrowth.com
www.alignedgrowth.com