Handling an OSHA Inspection From A Foreman’s Perspective

Words: Michael Rosser

Every employer should strive to maintain a good OSHA record. Not only are customers, insurers, and others increasingly scrutinizing employers’ OSHA records as a condition of doing business, but OSHA penalties and citations can be substantial—over $165,000 for a single willful or repeat violation. Citations and penalties not only impact a company’s bottom line but also its ability to do business.

Understand that an OSHA inspection is not a friendly visit—OSHA’s purpose is to gather evidence so that citations and penalties can be issued and later affirmed. This article is designed to help employers be prepared and exercise their rights—prior to, during, and after OSHA inspections—with the goal of minimizing your company’s OSHA liability. And it all starts with your foreman.

Over the years, I’ve run into many experienced masonry foremen who’ve never been through an OSHA inspection. And the odds are they won’t. But in the off chance that it does happen, they should be trained in how to conduct themselves and deal with the OSHA Compliance Safety and Health Officer (CSHO). I’ve seen OSHA issue citations because the foreman didn’t do the right things or said the wrong things. Just like having an injury on the job, we don’t want it ever to happen, but if it does, we need to be prepared.

Before OSHA Arrives

Selecting a Company Representative

Most on-site inspections begin with an unannounced visit by an OSHA compliance safety and health officer (CSHO). When OSHA arrives at the job site, it may be too late to decide who handles the inspection and what to do. Before OSHA arrives, your company should develop an inspection policy or procedure that includes designating a representative to supervise and handle all aspects of an OSHA inspection. Since your on-site foreman or superintendent is already there, this responsibility usually falls to them.

What if your representative is not available?

When OSHA arrives, you may ask the OSHA inspector to wait for the arrival of your designated representative before starting the inspection. In most cases, OSHA inspectors are willing to wait a reasonable time, up to one hour, before proceeding. Do not simply use this time to correct hazards because if this is observed by the inspector, it could result in Willful citations.

What if OSHA refuses to wait?

If the inspector refuses to wait, or if it is impossible for the representative to personally appear, designate a backup representative to fill in. Your designated representative can then supervise and monitor the inspection by telephone, giving instructions to the backup until he or she arrives at the site.

After OSHA Arrives

Managing the Opening Conference

Most OSHA inspections begin with an opening conference. The purpose of the opening conference is to discuss what will happen during the inspection. This is your opportunity to start managing the inspection. Here are some recommendations:

Ask to see the inspector’s official credentials if they do not offer them. A business card is not an official credential. Don’t be apprehensive about calling the local area OSHA office to confirm the inspector’s credentials.
Identify yourself as the company representative and inform the inspector that all inspection activities should be coordinated through you and no one else.
Don’t be afraid to ask questions, including why your facility or worksite was chosen for inspection (employee complaint, referral by another agency, etc.).
Ask to see a copy of the written complaint, if there is one.
Confirm with the inspector what they want to see and do, and how long they expect to be at your workplace. Be courteous but keep the inspection moving toward completion.
Discuss any safety issues that may be encountered during the inspection, including personal protective equipment required by your company. Require the inspector to abide by all company safety rules.
Take good notes of all matters discussed at the Opening Conference.

Handling Record Requests

During the Opening Conference, or sometime during the inspection, the inspector will ask to see certain records and documents. As a general rule, you should not volunteer documents that are not specifically requested.

Generally speaking, you should take the following steps when responding to document requests:

To avoid later misunderstandings, have the inspector put all document requests in writing or in an email.
Obtain a clear understanding of when and where the inspector wants the documents to be produced.
Before producing any records, make sure that they are complete and accurate. For example, are the company’s OSHA 300 forms completely filled out? Are they accurate?
Keep a copy or a list of all documents provided.

Overseeing the Walk-Around Inspection

OSHA’s actual inspection of your job site—known as the “walk-around”—is one of the most critical phases of the investigation. The efforts of the OSHA inspector during the walk-around inspection will produce much of OSHA’s evidence as to whether a violation exists. Here are points to remember:

Accompany the Inspector: The law provides that your representative shall be given an opportunity to accompany the inspector. You should always exercise this right. If your designated representative is not immediately available when the OSHA inspector arrives, request that the inspector wait until your representative can arrive to begin the inspection.
Employee Representative May Accompany Inspection: The law also provides that a representative authorized by the employees, usually a union steward, shall have the right to accompany the inspection. Generally, you have no say in the selection of the employee representative.
Photographs, Videotapes, Measurements, and Environmental Samplings: Typically, the inspector will photograph or videotape the workplace, take critical measurements and conduct environmental samplings, such as air samples or noise measurements, depending on the type of inspection involved.
Video or Audio Taping Employer Representatives: Caution should be exercised when the inspector attempts to videotape or audio tape statements by your employer representatives. They have the option of telling the inspector that they do not wish to have their comments recorded.
Take Your Own Photographs and Measurements: Your employer representative should take their own photographs and measurements either during or immediately after the OSHA inspection. Your representative should also take good notes of what the inspector does during the inspection.
Consider Using Your Own Experts: Complex health inspections involving, for example, air contaminants or noise, pose special issues. Your employer representative may not have the expertise to effectively monitor or replicate OSHA’s scientific monitoring. In such cases, you should consider designating your own expert, such as an industrial hygienist or safety consultant, to accompany and monitor those portions of the inspection and, if appropriate, do side-by-side testing and observation.
Correct Unsafe Conditions As Soon As Possible: In many cases, unsafe conditions are observed during the walk-around inspection. If possible, you should always correct the unsafe conditions observed during the inspection as soon as possible or after the inspector departs. In the event a citation is issued, this corrective action will demonstrate your good faith and may result in a lower penalty. On the other hand, failure to correct an unsafe condition pointed out by the inspector could result in higher penalties or a willful violation.

Preparing for Employee Interviews

OSHA interviews are also one of the most critical aspects of the inspection. An alarming number of citations are based on statements of employees or supervisors. Advance preparation for these interviews can lessen your company’s liability. Be aware, however, that the guidelines for non-supervisor and supervisor interviews are different.

Guidelines for Non-Supervisor Interviews

The OSHA Act gives your employees the right to speak privately with OSHA. For that reason, employer representatives are generally not entitled to be present for non-supervisory interviews. “Non-supervisory” employees are typically defined as those without the authority to hire, fire, discipline, or direct the work. Even though your employer representatives may not be permitted to be present during non-supervisory interviews, you can take the following steps to prepare employees:

Inform employees that they have the right to speak or not speak to OSHA.
Inform employees that they may request a representative, including a supervisor, a union representative, or an interpreter, to sit in on the interview. Understand, however, that OSHA may resist the presence of any management representative during the interview.
Put employees at ease and give them a “heads-up” as to what the OSHA inspector is likely to ask. For example, employees are almost always quizzed about their safety training and the facts surrounding any alleged violations or an accident.
Always advise employees to tell the truth.
Intercede on behalf of employees who may be distraught or physically unable to speak with OSHA, particularly after a fatality or catastrophic accident. Employees and supervisors should not be interviewed until they feel they are physically and emotionally able to do so.
Inform employees of their right to request that they not be tape-recorded and that they have the right to bring their own tape recorder.
Conduct a voluntary debriefing of all employees interviewed by OSHA.

When informing employees of their rights or debriefing them, you must avoid any pressure, coercion, or retaliation. The OSH Act prohibits retaliation or discrimination against an employee participating in an OSHA inspection, including OSHA interviews. You should always tell employees that it is their free choice as to how they wish to conduct their OSHA interview—you are simply advising them of their rights.

Guidelines for Supervisor Interviews

Unlike regular employees, the statements and admissions of a foreman or supervisor may legally bind the company. When responding to management interviews, the following guidelines should be observed:

Your company representative has the right to be present for supervisor or management interviews and should always exercise that right. In a fatality, catastrophe, or other inspection involving significant potential liability, it is often advisable to have legal counsel prepare supervisors or managers for interviews and have legal counsel attend all supervisor or management interviews. Besides providing moral support, your representative or your legal counsel can assist the supervisor in making sure that questions are clearly asked and correctly answered.
Management witnesses should be prepared in advance as to possible subject areas during their interview, and the “dos and don’ts” for giving testimony, including just answering the questions, avoiding speculation, and the importance of telling the truth.
During the interview, or anytime during the inspection, avoid admitting to violations or hazardous conditions.
Supervisors also have the right not to be tape-recorded or to bring their own tape recorder.

Managing the Closing Conference

At the conclusion of the inspection, the inspector will hold a closing conference to discuss observed violations. The closing conference may occur immediately following the walk-around inspection, or several days or weeks later. Here is some final advice:

Ask questions: What specific standards are being cited? Why? What is the classification (serious, repeat, etc.)? How much is the penalty?
Attempts to argue or settle the citations with the inspector at the closing conference are usually unsuccessful. The inspector’s boss usually decides what citations will be issued and what the penalties will be. Instead, the inspector will encourage you to attend an informal settlement conference after receiving the citations.
Even if you agree with the proposed citations, avoid admitting violations or recognizing hazards. There may be defenses to the citations that you have not considered.
Tell the inspector where to send the citations.
Take good notes.

Remember, CSHOs never issue citations in the field, and they do not assess fines in the field. Someone who offers you a “break” on fines if you will pay in advance is a fraud.

Correct Violations or Other Safety Hazards

If not already corrected during the walk-around inspection, you should begin to address and correct violations or other safety hazards observed during the inspection, even if you intend to challenge or contest the proposed citations. Correcting known hazards shows your company’s good faith, an important factor in resolving the citations later. Failure to correct could result in higher penalties.

Handling an OSHA Inspection From A Foreman’s Perspective

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