By Jim Rhoad
Ottawa Kent Insurance
"Hello. I’m from OSHA and I am here to help you."
If you own or operate a business, chances are good you’ve heard these dreaded words before. Next to, "Hello. I’m from the Internal Revenue Service," there are few greetings more inclined to make your knees weak. But it doesn’t have to be that bad.
Even with the seven million workplaces it covers each year, OSHA will most likely find its way to your location. When they do, here are some tips to help you survive your OSHA audit.
Plan for an inspection by making sure you have three key items in place prior to the arrival of the OSHA compliance officer (CO):
1. A determination if you will ask for a warrant;
2. A form to document what occurs during the inspection;
3. All pertinent documentation such as written programs, training records, inspection records, etc.
We recommend you do not require the CO to obtain a warrant before entry unless you need to gain time, such as when a manager or counsel needs to be present. It is your legal right to ask for a warrant but this might trigger a stricter audit (and raise possible red flags). It’s wiser if you simply work with the inspector. Answer questions honestly and fully, but don't offer additional information unless it will help you avoid citations. Cooperate as long as the inspector remains ethical and reasonable.
Be prepared. These inspections are without notice so you will want to have all information readily available in anticipation of an impending audit. Here are some items to have prepared:
- Assignment of responsibilities, to include a "greeting team" to meet the CO
- Documented training logs
- Recordkeeping
- Equipment inspection records
- Safety and health policies
- Review of insurance and third-party audits
- Hazard assessment and abatement
- Review of previous audits and citations.
It is also wise to have a form available to record the inspector's actions and comments during the inspection. This information will help you understand what transpired and will assist your attorney should you contest the citation or penalty. Items you should record on this form include:
- The inspector's name and office telephone number
- The documents that the inspector reviewed and copied
- The attendees at the opening and closing conferences
- The areas that were inspected
- The employees and union representatives who participated
- The dates and times when the inspector was onsite
Almost all OSHA inspections begin with a review of written documents. These documents include your injury and illness records, safety manual, OSHA-required programs, OSHA-implied programs, safety procedures, and training records. There are many records and written programs that OSHA does not specifically require to be in writing, but you should have them anyway. These documents are referred to as OSHA-implied records. For example, although OSHA requires every employer to conduct frequent ladder inspections, there is no specific requirement to keep a written record of ladder inspections. The written record in this case could be a log of all ladders with initials and dates of inspection or a tag attached to the ladder with spaces for the inspector to initial and date.
Just to get you used to what you’re in store for, here's a mock OSHA audit walk through:
1. The knock at the door. We recommend escorting the CO to your office or waiting area. This will give you time to gather your documents and "greeting team" to accompany the CO through the inspection.
2. The opening conference. The officer will explain why OSHA selected your workplace for inspection and describe the scope of the inspection. Have your "greeting team" here to accompany the CO during the inspection. Make sure you set ground rules for the inspection, get a copy of the complaint if applicable, treat the CO in a professional fashion, coordinate with onsite contractors and vendors, bring up any trade secret issues you may have, but DON’T volunteer any information unless asked.
3. The walk-around/inspection. Make sure you have an employee representative attend the entire inspection and take accurate notes on areas reviewed and all discussions and comments from the CO, as well as any photos, videos, air monitoring, etc. Keep in mind whatever is in the CO’s sight is subject to inspection. But maintain control. Remember, it’s your facility and you have rights. But don’t try to talk your way out of an apparent hazard. It will not help and probably make it worse. And above all, don’t destroy evidence. The CO may also want to interview employees. Make sure to schedule these away from your work area. It’s up to your hourly employees if they want company representation during the interview. Advise the employee of his/her rights, your appreciation of their cooperation, and to tell the truth. Be aware that employees do have whistleblower rights. As for management and supervisor interviews, always have another management/counsel present during the interview. If there is a fatality investigation your attorney should always be present. No tape recording is permitted and you will need a signed statement upon completion.
4. The closing conference. During the closing conference the CO will review any apparent violations and discuss possible methods for correcting the violations within a reasonable time period. The CO will explain that the violations found may result in a citation and a proposed financial penalty, then describe the employer’s rights and answer all questions. Remember, this is not a time for debate. The law requires OSHA to issue citations for safety and health standards violations. The citations include:
- A description "with particularity" of the violation
- The proposed penalty if any
- The date by which the hazard must be corrected
Citations are usually prepared at the local OSHA office and mailed to the employer via certified mail. OSHA has up to six months to send a Notice of Penalty. Employers have 15 working days upon receipt to file an intention to contest OSHA citations, and/or to request an informal conference with the area director to discuss any citations issued. Common causes to dispute citations include:
- The citation is false
- The citation’s dollar penalty is excessive
- You disagree with the citation’s contention that the danger was real, serious, and that an accident was likely to occur
- The contention that you are responsible for causing the unsafe conditions
Finally, contesting may not relieve you completely of a penalty, but it may help you negotiate a lesser fine. Contesting is usually a good idea. OSHA typically negotiates with employers to a lesser penalty amount.
There is no way to avoid an OSHA audit, much like there is no way to avoid having a root canal. But similarities aside, you can lessen the pain by being well-prepared.
Jim Rhoad is an outsource risk manager with Ottawa Kent Insurance, Jenison, Mich. He has experience in dealing with workers' compensation issues across all industries, including construction and manufacturing. He can be reached at Jrhoad@ottawakent.com.
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