Employers beware: Prepare now for a more aggressive OSHA inspection

More than two years into the Biden Administration, federal OSHA is making good on its promise to significantly ramp up enforcement and expand the tools in its regulatory toolbox. The number of federal inspectors has increased over 20 percent, inspections have returned to pre-COVID levels (approximately 32,000 annually), and new ways to calculate fines mean onerous penalties. Employers have received a record number of citation packages over $100,000 with 343 issued in 2022, an increase of more than 57 percent from the previous high of 218 in 2017.

Coupled with this hardline enforcement, the agency has created new ways to proactively inspect employers with follow-up inspections, targeted enforcement initiatives, and emphasis programs while expanding punitive measures such as the Severe Violator Enforcement Program (SVEP) and the new Instance-by-Instance citation policy. Conn Maciel Carey LLP, a boutique law firm focused on labor & employment and workplace safety, warns that these actions create minefields for even the most conscientious employers. "In short, the consequences for employers being caught ill-prepared for an OSHA inspection, and making bad choices during an inspection, are more dire now than ever."

The firm provides a free OSHA inspection toolkit to help prepare before, during, and after an OSHA inspection. Here are some highlights:

Before an inspection

• Review the applicable Emphasis Programs and Directives for your industry and/or region. Under these programs, even without a report of injury, complaint, or observation of violation, OSHA can show up unannounced. Although inspectors (CSHO) must focus on the scope of the emphasis program or directive, they can expand the scope based on injury and illness records, plain view hazards, or employee interviews. Be proactive and target safety efforts in identified, high-hazard areas and processes.
• Review OSHA's Field Operation Manual. Used by CSHOs to guide their inspection activities, this handbook is helpful to prepare for an inspection and avoid costly compliance problems.
• Designate the walkaround route. The plain view doctrine applies to OSHA inspections. If a violation or hazard is observed, such as use of PPE or failure to lockout machinery during maintenance, CSHOs can issue a citation. Determine the shortest route directly to the area at issue.
• Decide if you will require a warrant. While there may be special circumstances to require a warrant, most experts recommend permitting a consent-based inspection because it gives the employer more control to negotiate the scope of the inspection and does not create an adversarial relationship.
• Determine where the CSHO will work and where the opening conference and employee interviews will be held. Be mindful of what CSHOs can see on the walls, through windows, etc.
• Designate the inspection team. The size of the team will depend on the operations, scope of inspection, and union and contractor involvement. It should include a leader (senior management or OSHA counsel), a walkaround representative to be constantly with the CSHO, someone to take the same photos, videos, and sampling as OSHA, and someone in charge of document production. Assign responsibilities.
• Train front office. Be sure they know whom to contact.
• Know your rights. The inspection must be "reasonable" at "reasonable times." OSHA can't require you to open on weekends, stay late, run processes that are not scheduled, require equipment to be positioned in a certain way, or ask that an accident scene be re-enacted. If an investigation was triggered by an employee complaint, employers have a right to obtain that complaint with the employee's identity redacted.

During an inspection

An unexpected visit from OSHA creates anxiety and employers may feel pressure to act or make decisions quickly, but that's a mistake. It's important to focus on controlling the flow of information, minimizing business disruption, casting the workplace in the best light, and identifying potential problems early. It's reasonable to have the CSHO wait while the pre-designated personnel gather and counsel is contacted. Stages of the inspection include:

• Opening conference. Employers should insist on an opening conference when OSHA will explain the purpose of the inspection and the employer can negotiate the scope and duration. Ground rules for document requests, employee interviews, management escorts, confidential or proprietary information/equipment/processes, etc. can be established. It's a good idea to arrange for daily close-out meetings where you can ask about concerns and tasks for the next visit.
• Document production. On the first day of the inspection, the CSHO will ask for the OSHA 300 logs, 300A summaries, and 301 forms. Review them carefully but remember these documents must be provided within four business hours of the request. If an extension is granted for some reason, it's critical to get the extension in writing, as failure to produce the forms is a violation. The CSHO may also ask for relevant SDS, which should be provided fairly quickly since they must be readily accessible to employees in the workplace. Employers should not and are not required to provide other documents within a certain time, although the response time should be reasonable. Insist on written or electronic requests for documents and review the requests and responses with counsel to ensure they fall within the scope of the inspection and that proprietary/confidentiality concerns can be addressed. Do not volunteer additional documents. Keep a copy of all documents produced, a record of when they were sent to OSHA, employee responsible, bates range, and flag trade secret or confidential documents.
• Walkaround inspection. While the scope will depend on the nature and purpose of the inspection, the designated escort should always accompany the CSHO and be trained to protect the employer's rights. Be professional with the CSHO, but don't allow the walkaround to become a substantive interview, which should be done during the formal interview process. "Stop and talk" with employees should not become interviews - limit this interaction to five or fewer minutes. Take detailed notes and take the same photos and videos as OSHA, but if this unnerves an employee, discuss with the CSHO to avoid creating a hazard. If sampling is required, ask for notice. Be sure the CSHO follows your safety protocols, such as wearing a hard hat. If a hazard is identified and easily fixed, such as a blocked eye wash station, do it immediately to show the commitment to safety.
• Interviews. Employers have the right to and should participate in all supervisory employee interviews, but non-supervisory employees have the right to a private interview. Interviews should be arranged in advance, be in a quiet place away from the active workplace, and scheduled later in the day. Supervisor interviews are critically important because their knowledge is imputed to the employer; they should understand they speak on behalf of the company and their comments can form the basis for a citation. Recently, a federal appeals court denied a review petition by Massachusetts-based Riverdale Mills Corp. after the Occupational Safety and Health Review Commission (OSHRC) upheld three citations. While the company argued the case was flawed by misinformation from employees, instrumental in the decision was the testimony of a maintenance supervisor. Employers should also confirm they are on the same page with the CSHO about the status of the employee. OSHA's definition of a supervisor is quite broad.
  
  Do not coerce or intimidate employees but prepare them by reviewing their rights, providing interview tips, encouraging honesty and sticking to the facts, and reminding them of the safety training they have received. While it is their right to sign the notes of CSHO, they should know it isn't required and should be sure they are correct if they do sign.
• Closing conference. The closing conference is held at the end of the inspection, which could be weeks or months after the close of the on-site inspection. The CSHO will communicate the standards allegedly violated, the bases for the violations, and possible abatements and dates. They generally will not share the classification of the violation, the amount of the penalty, or the actual citations. Conn Maciel and Carey LLP recommend employers take the following actions during the closing conference:
  
  
  • Listen carefully, take detailed notes, and don't debate.
  • Make no admissions.
  • Identify any alleged violations that have already been corrected.
  • Make no abatement or abatement date promises.
  • Ask the CSHO about characterizations and penalty amounts.
  • Ask when the employer can expect to receive the citations and confirm the address.
  • Request time to provide supplemental information to correct factual errors that form the basis of proposed citations.

After the inspection

OSHA has six months to complete an inspection from the time it opens the investigation and citations must be issued within this period. For larger penalties or unique regulatory violations, OSHA will issue an inflammatory press release before the employer has a chance to respond. While in the past, resolving citations at an informal settlement conference was a viable option for many employers, many experts feel this is a less effective option today, given the onerous nature of repeat or failure to abate violations, the implications for sister facilities, and the potential for placement in the SVEP. A potential repeat or willful violation carries a maximum penalty of $156,259 per violation and triggers greater enforcement activity.

Many experts suggest that contesting a citation is well worth the effort and cost. One way is to negotiate a formal settlement with OSHA's counsel and another way is a hearing before an administrative law judge under the OSH Review Commission. The time to contest is very short - a Notice of Intent to Contest must be submitted in writing to the OSHA area office within 15 working days after receipt of the Citation and Notification of Penalty. However, it can be a short letter and does not have to explain why you are contesting. Before accepting any citation regardless of dollar amount, employers should work with counsel and understand the long-term implications.

Note: State OSHA programs have different inspection procedures and requirements, and you should consult with counsel if you are facing an OSHA inspection under a state plan.