By Robert K. Tuman
There’s no better adage when dealing with an OSHA inspection than “the best defense is a good offense.” A little planning and some organization can make your life easier when OSHA comes to call.
Preparing for an OSHA Inspection
• Have your safety documentation (i.e., Hazard Communication program, material safety data sheets, OSHA log, safety meetings, site-specific safety plans, pre-task plans) readily available. Post your OSHA log and have subcontractors post theirs from Feb. 1 through April 30. Have copies of all employees’ licenses (i.e., hoisting engineers, crane operators, etc.) and certificates of trainings (i.e., OSHA 10 Hour cards) on-site.
• Implement a zero tolerance Personal Protective Equipment (PPE) program. Require risk and exposure-specific PPE and document the disciplinary actions you’ve taken against offenders.
• Implement a tool and equipment self-inspection program. Ask employees and subcontractors’ employees to bring extension cords and tools to weekly safety meetings, and to take damaged or inoperable tools, equipment, and cords out of service.
• Hold employees and subcontractors accountable for weekly equipment tests and inspections. For example, electrical subcontractors should inspect and test GFIs weekly and submit completed inspections.
• Perform and document (and hold subcontractors accountable for) daily safety inspections of their work areas.
• Designate an experienced, trained, and personable manager as the company go-to person during an OSHA inspection. Document that this has been done.
• Have and maintain a digital camera on each jobsite. Keep it in a sealed bag, keep it charged, and if necessary, add additional memory.
During the Inspection
• An incident occurs and a worker is taken by ambulance to the hospital. An OSHA compliance officer shows up at the trailer the next day to investigate and inspect. Here’s how to proceed:
• Introduce yourself and be friendly and courteous. Ask your designated OSHA liaison to join you.
• Ask for identification and a business card. If there is no accident or apparent reason for an OSHA inspection, ask why the officer is there. He or she should conduct an “opening conference,” during which it’s detailed why OSHA is inspecting your jobsite. Was there an anonymous complaint? Ask for a copy. Did OSHA observe a fall hazard while driving by the jobsite? Or, is the inspection part of a local, regional, and/or national Emphasis Program?
OSHA cannot and will not provide the complainant’s name or any other identifying information. You may know or suspect who the complainant is, but do not fish for it. This could backfire on you in the form of a complaint for retaliation.
• Provide information and documentation only when asked. Sometimes you can compound matters by providing potentially incriminating documentation. For example, if you wish to provide a copy of an unsatisfactory self-inspection, make sure you provide the completed corrective action plan.
• Accompany the compliance officer during the inspection. If he or she takes photos, follow suit and do the same. Note what’s observed.
• Be polite but do not overdo it. OSHA inspectors have a keen sense when they are being played. Many have worked in construction.
• Make employees available to the compliance officer if they are asked to be interviewed in private. OSHA has the right to talk to employees without their managers present. Employees can have a union or employee representative present during these interviews. Arrange for private space where they can talk in confidence. After the interview, employees might want to discuss what they told the compliance officer, but wait for them to come to you.
• Ask the compliance officer to do a face-to-face “closing conference,” a summary of his or her findings. OSHA may prefer to conduct a closing conference by phone; this is perfectly acceptable.
After the Closing Conference
• Review the findings with impacted employees and subcontractors.
• Correct safety deficiencies as soon as possible, document your corrective actions, and provide OSHA with copies. If you need additional time to correct deficiencies (i.e., scheduling and completing OSHA 10-hour training), provide the compliance officer with your timetable and provide updated progress.
• Update the compliance officer as you complete each action item or have completed a group of action items.
When a Citation is Received
• Always schedule an informal conference, as you want to have the opportunity to present your case. You have 15 work days from the date you receive the citation to participate in an informal conference. For example, if you receive the citation the afternoon of Dec. 24, you have until Jan. 16 to complete the conference. However, you want to have the informal conference well before the “contest date,” the deadline for contesting one or more citations. You want to give yourself enough time before the “contest date” to make a deliberate and informed decision whether to contest or pay the fine.
• Send copies of the citation to your OSHA liaison and to affected employees and subcontractors. Meet to determine the accuracy of the citations.
• Fact find with employees or subcontractors’ employees who claim they “didn’t do it.” You do not want an employee who vehemently claims he was not exposed to a fall hazard unexpectedly admitting he was during the informal conference.
• Remember, compliance officers sometimes make unintentional mistakes.
The Informal Conference
• Never make excuses, play the blame game, or complain that the citations will put you out of business. If one or more of the citations are factually incorrect, bring convincing evidence supporting your request to delete them. However, if you were clearly in violation, try to reduce the fine and change the citation’s category (i.e., from “serious” to “other”).
• If guilty of the cited violations, ask for whatever consideration the hearing officer could give. The extent of this “consideration” will be based on a number of factors, including but not limited to, your OSHA history and what you are doing now to keep your employees safe, and corrective actions you took between the inspection and informal conference. Accordingly, if you were cited for lack of a specific safety training (i.e., fall protection training), bring copies of training records and safety training rosters with attendees’ printed names and signatures.
• If an employee or subcontractor’s employee repeatedly violated an OSHA standard or generally accepted safe work practice, bring a copy of current and prior disciplinary memoranda evidencing your long-standing safety disciplinary program.
• At the end of the informal conference the hearing officer will detail terms of a settlement agreement. If you perceive these to be fair, sign the agreement and arrange to pay the fine or opt for a payment plan.
• If, however, you have convincing evidence that one or more citations are factually inaccurate, submit a “contest letter.” OSHA will help you with the wording.
If and When OSHA Returns (or Doesn’t)
• OSHA may return to your jobsite. Hopefully with an initial inspection behind you, the learning curve is as well. However, it might not be a bad idea to enroll in an industry-sanctioned inspection program and/or have your safety officer perform regular unannounced “mock OSHA” inspections, with a “how did we do” discussion after the inspection, asking participants to take corrective actions.
OSHA jobsite inspections are inevitable: the bigger the project, the greater the probability of an inspection. You can look at them as annoying, disruptive, or counterproductive, or you can view them as learning experiences and an integral part of your efforts to keep employees safe. You can emerge from OSHA inspections at times a bit poorer, but certainly better informed and more enlightened.
Robert K. Tuman is an independent construction safety consultant living in San Luis Obispo, Calif. He can be reached at bobtuman@gmail.com.
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