What to expect when OSHA is inspecting: Former OSHA compliance officers offer advice

Alan Ferguson | May 26, 2019
Key points
  • An inspection usually includes an opening conference, walkthrough, employee interviews and a closing conference.
  • Employer attitude, organization and good housekeeping all can make a positive impression, experts say.
  • In addition to ensuring safety programs and training are in place, employers should make sure these things are documented.
   Years ago, while working at a wood and paper products company, John Vasquez had an electrician and a mechanic accompany him and an OSHA compliance safety and health officer during an inspection. It was an effort to show good faith.
   “The compliance officer was impressed,” said Vasquez, who is now a National Safety Council safety consultant. “He said, ‘I’ve never had a company that was this responsive to even just a walkthrough.’”
   In contrast, Paul McNeill, an OSHA CSHO in New York from 2001 to 2013, visited one business that he says was indifferent during an inspection despite the discovery of a litany of hazards. The employer then failed to make corrections and ignored citations, which led to nearly $350,000 in fines.
   An employer’s attitude can play a significant role during an OSHA inspection – an inspector’s report includes a place to note an employer’s lack of cooperativeness, McNeill said. So, too, can organization and preparedness.
   The likelihood of being inspected is slim. According to the latest statistics, 8 million workplaces are under the jurisdiction of either OSHA or its State Plans, which together average nearly 73,000 annual inspections. Still, experts say having a plan in place in case an OSHA inspector comes knocking goes a long way.
Drawing OSHA’s attention
   Several scenarios may trigger an investigation. Topping the priority list are imminent danger situations and fatalities, followed by (in descending order):
  • Severe injuries or illnesses.
  • Worker complaints.
  • Referrals of hazards from other federal, state or local agencies; individuals; organizations; or media outlets.
  • Programmed inspections, including those that fall under an OSHA emphasis program.
   The agency also targets for inspection establishments in certain high-hazard industries or workplaces that “have experienced high rates of injuries and illnesses.” In October, the agency brought back its Site-Specific Targeting Program and is using Form 300A data to craft its inspection lists for non-construction workplaces with 20 or more employees.
Advance notice of an inspection is rare – except as detailed in OSHA regulation 1903.6, which states that one major reason to give notice is to provide an employer the opportunity to correct imminent danger hazards quickly.
   In addition to ensuring safety programs and training are in place, employers should make sure these things are documented. This is especially true for any activity or equipment central to an employer’s industry, whether it’s machine guarding for manufacturing, powered industrial trucks in warehouses or fall protection for construction.
   Injury and illness logs should be up to date going back at least three years. Employers should also be ready to produce personal protective equipment hazard assessments covering the past five years, an emergency action plan and a hazard communication program.
   “The 11th Commandment with OSHA is, ‘If it’s not in writing, it never happened,’” McNeill said.
What (former) OSHA inspectors want you to know
   One misconception about OSHA inspectors is the idea that they get “points” or bonuses for how many safety hazards they cite, said Paul McNeill, a former compliance safety and health officer with the agency from 2001 to 2013.
   “I wish [people] understood that we don’t get paid a penny more if we issue citations or no citations,” he said.
   In fact, such practice is barred by law. Added in 1998, Section 8(h) of the Occupational Safety and Health Act of 1970 states that the secretary of labor “shall not use the results of enforcement activities, such as the number of citations issued or penalties assessed, to evaluate employees directly involved in enforcement activities under this act or to impose quotas or goals with regard to the results of such activities.”
   As far as employer attitude during an inspection, John Newquist, a certified safety and health official at three different times between 1983 and 2012, said many of those he encountered were nervous because it was often their first experience with OSHA. He estimated that a good majority (70%) were courteous, and only 5% were “mad or angry.”
   Newquist, also a former OSHA area director and former assistant regional administrator in his 29 years with the agency, said that most employers attempted to comply with OSHA standards and “maybe 5%” had nothing in the way of training or safety programs.
   To help that latter group, McNeill suggests getting a free OSHA or State Plan consultation that typically involves a wall-to-wall review of safety deficiencies. Finally, he said organizations should understand the true costs of injuries, no matter how small, by using the agency’s Safety Pays calculator, available on the OSHA.gov website.
   “What you think is a ‘boo-boo’ costs you money,” McNeill said. “All the time (even in the event of a minor injury), people are tied up, production might get behind, customer goodwill might leave you if your orders are late, stuff of that nature. When I was an OSHA inspector and they showed interest, I was happy to sit down at their computer and walk them through it.”
Greetings from the ‘host with the most’
   When an OSHA inspector arrives, typically he or she will wait a “reasonable” amount of time – usually an hour – before making note of any delay on the inspection form, McNeill said. It’s a good opportunity for employers to correct small hazards, such as clearing areas in front of walkways, exit doors or fire extinguishers.
   “Use that time to your advantage,” McNeill said. He also recommends designating your organization’s “host with the most” – someone who will remain friendly and neutral – to meet with the inspector. Don’t give the role to someone who will be defensive or challenge the compliance officer on who knows the most about safety.
   Who greets the inspector, how the facility will correct small hazards, who’s in charge of gathering documents, and who will accompany the compliance officer(s) should all be part of an OSHA inspection preparation plan. The plan also should include a union representative if the facility has union workers, especially if it’s part of a contract. Designate backups for workers assigned to accompany an inspector.
   Experts advise employers to check the OSHA inspector’s credentials, which usually are presented before the inspection. If unsure, get the inspector’s information and call the local OSHA office or the Department of Labor Office of the Inspector General to confirm.
   Cases of scammers posing as OSHA inspectors, going to worksites and requesting payment of a fine – something an OSHA inspector would never do – have been reported.
   In general, requesting to see a warrant before allowing an OSHA inspector to enter the workplace is likely to bring enhanced scrutiny. Experts interviewed by Safety+Health had mixed opinions on whether notifying an area or local office ahead of time would mitigate that, if it’s corporate policy to ask for a warrant.
   “If the explanation is, ‘We don’t want you here, go get a warrant,’ that’s one thing. But if they explain that, ‘It’s our corporate policy, this is your first time visiting our facility,’ they don’t mind. They will say, ‘Fine, we’ll come back,’” Vasquez said. “As long as they know what the reason is, that you’re trying to be cooperative, that you’re not being confrontational, you’re just explaining what your policy is, then that’s usually not an issue.”
   John Newquist, a former OSHA area director in Peoria, IL, and an agency employee from 1983 to 2012, contends that’s “a poor policy based on bad legal or association advice,” in an email to S+H. He added that an OSHA office might respond by sending its most experienced compliance officers, who are more adept at spotting hazards.
The ‘Scary 13’
   John Newquist, former OSHA area director in Peoria, IL, and an agency employee from 1983 to 2012, identified the following records/documents – what he calls the “scary 13” – employers often can’t produce during an inspection:
1             Lockout authorized employee training
2             A current list of chemicals used at the facility
            Temporary employees’ OSHA 301 or state workers’ compensation report of injury
4             Training records for electrical safe work practices
            Annual respirator training
            Lockout/tagout audits
            Personal protective equipment training
8             Noise exposure training
9             Bloodborne pathogens training
10           Confined spaces – non-permit certification
11           Forklift recertification
12           Written PPE hazard assessment with certification
13           Hazard communication training for all employees with current chemicals
Opening conference and walkthrough
   During the opening conference, the CSHO will explain the reason for the inspection. If it’s in response to a complaint, the employer will receive a copy of the report with identifying information redacted.
   The inspector will describe the scope of the inspection and procedures for the walkthrough. Any hazard in plain sight, such as a misaligned machine guard or a missing handrail, can be investigated during a walkthrough, even if it’s not part of the initial scope of the inspection.
   OSHA inspectors will probably take notes and pictures – and even record video – during the walkthrough. These won’t be shared with employers. The employer may mirror what the inspector is doing and should feel free to ask questions.
   If the compliance officer asks a question that warrants a more detailed response, Newquist said a good response is, “Let me get back to you on that. I don’t want to give you an incorrect answer.”
   Most inspections take one day, but some might require multiple visits, depending on factors such as the size of the facility or the number of hazards identified. Sometimes, a visit from an industrial hygienist will be included in the inspection if testing is needed. During testing, employers should take their own samples alongside the hygienist, as OSHA personnel also won’t share sampling information with an employer.
Interviews
   An employer’s plan for an OSHA inspection should include a designated place where a CSHO can interview a random selection of employees. These interviews only take a few minutes, McNeill said, and cover basic topics such as how long an employee has worked at the business and what kind of safety training he or she received. Employees have the option of having a supervisor present or answering questions alone.
   If a translator is needed, OSHA provides a service available via a headset or phone. If a worker is occupied with a crucial production job, the inspector might select a different employee or just wait until he or she is free to talk.
   “Compliance officers try to minimize work interruptions during the inspection and will keep confidential any trade secrets observed,” OSHA states.
Closing conference and after
   After the walkthrough, the CSHO will conduct a closing conference with the representatives involved. Newquist said the conference often takes place over the phone one to six weeks after the inspection. The officer will go over his or her findings, violations that might result in a citation or fine, potential corrective actions, and reasonable timelines for corrections, and then refer the employer to free consultation services that can assist in making corrections.
   This is “an excellent time,” Newquist said, to show that any hazards identified during the inspection have been corrected or abated. OSHA, however, still could propose a fine. A prompt correction might help the employer qualify for OSHA’s Quick-Fix Penalty Reduction program, although not all violations fall under the program.
   Citations and fines aren’t official until an area office review takes place and the employer receives the notice by certified mail. The employer then must post a copy of the notice “near the place where each violation occurred to make employees aware of the hazards to which they may be exposed,” OSHA states.
   Once the certified letter is signed, the employer has 15 business days to request an informal conference with the area director. This conference is another opportunity to show corrective actions have been made, possibly resulting in reduced or voided penalties.
Don’t fake it
   Taking proper precautions from the get-go, especially when safety is involved, can only help your cause. When an OSHA inspector shows up, it’s too late to try to fake your way through it. Compliance officers normally receive years of training and practice before going on inspections alone.
   “You can’t backfill if you’ve paid no attention to safety,” McNeill said. “I’ve been around the corner. I’ve done too many OSHA inspections.”