How to Deal with an OSHA Inspection

Dealing with an OSHA inspection requires some knowledge of the Washington, D.C.- based Occupational Safety and Health Administration’s history and its background. OSHA is part of the U.S. Department of Labor and was created through the Williams-Steiger Occupational Safety and Health Act of 1970, which was signed into law on Dec. 29, 1970, by President Richard M. Nixon. Before OSHA, there were nearly 6,000 workplace fatalities annually, 50,000 deaths from workplace-related illnesses and 5.7 million non-fatal workplace injuries. Injuries alone cost American businesses more than $125 billion.

OSHA is responsible for worker safety and health protection, and it has made a significant difference in the safety and health of workers in all industries. Since its inception, OSHA helped cut the work-related fatality rate in half; worked with employers and employees to reduce injuries and illnesses by 40 percent; and reduced trenching and excavation fatalities by 35 percent. To accomplish these goals, OSHA encourages employers and employees to reduce workplace hazards and implement new safety and health programs, as well as improve existing ones.

Consequently, all U.S.-based businesses covered by the OSH Act are subject to inspection by OSHA compliance safety and health officers (CSHOs). Most inspections are conducted without advance notice. Because OSHA cannot inspect all 7 million workplaces it covers each year, it seeks to prioritize its focus on those that present imminent danger situations—hazards that could cause death or serious physical harm.

Keep in mind that OSHA considers an employee on a roof over 6-feet high without fall protection imminently dangerous.

Other high priorities include fatalities and catastrophes, which are any incidents involving the deaths or hospitalizations of three or more employees. These catastrophes must be reported to OSHA within eight hours. In addition, employers must report any employee hospitalizations, amputations or loss of an eye within 24 hours. Complaints, allegations of hazards or violations also receive high priority. Referrals of hazard information from other federal, state or local agencies; individuals; organizations; or the media receive consideration for inspection. Follow-ups—checks for abatement of violations cited during previous inspections—are conducted by the agency in certain circumstances. Planned or programmed investigations will sometimes be aimed at specific high-hazard industries or individual workplaces that have experienced high rates of injuries or illnesses.

Roofing is considered a high-hazard industry. Roofing job sites are highly visible and working roofers can be seen from several blocks away; therefore, possible infractions or violations are much more visible. As such, it is likely OSHA may come to visit your job site.

When a CSHO comes onsite, the first thing he or she is supposed to do is announce himself or herself to the management representative (the owner, superintendent, foreman or safety consultant). At this point, the CSHO will show his or her credentials—these credentials are similar and carry the same weight of law as those of an FBI agent. CSHOs also have a working relationship with other governmental agencies. An OSHA compliance officer can call in the U.S. Environmental Protection Agency, local Department of Environmental Protection, Department of Transportation, or U.S. Immigration and Customs Enforcement if he or she suspects other regulatory infringements.

At this point, the CSHO will conduct the opening conference and explain why this workplace was selected for inspection and describe the scope of the inspection. The employer will choose a representative to accompany the officer during the inspection. An authorized representative (often a union representative, someone designated by employee consensus or even the complainant) of the employees has the right to join the inspection. Regardless, the officer will consult privately with a reasonable number of employees during the inspection. The company representative may not be allowed to participate in these consultations. (Learn more in an OSHA Inspections Fact Sheet.)

Following the opening conference, the compliance officer and representatives will walk through the portions of the job site covered by the inspection, looking for hazards that could lead to employee injury or illness. The compliance officer also will review workplace injury and illness records and posting of the official OSHA poster.

During the walkthrough, the compliance officer may point out some violations that can be corrected immediately. Although the law requires these hazards be cited, prompt correction is a sign of good faith on the part of the employer. Compliance officers try to minimize work interruptions during the inspection and will keep confidential any trade secrets they observe. The only time a CSHO can stop a job is if an employee is in immediate danger.

As a professional safety consultant, I have been involved in numerous OSHA inspections. During these inspections, I collect information. I listen to what the CSHO has to say and take copious notes. I know the rules OSHA must follow and I note every possible mistake or shortcut the officer may make during the information-gathering process. While doing this, I am cordial with the officer; I speak politely and respectfully and as little as possible. The information I gather can sometimes be used at the informal hearing to get some of the citations lowered or, if OSHA is mistaken or has not followed its own protocols, removed completely.

In the meantime, I make sure my client immediately fixes any issues that OSHA has cited us on. Just like OSHA, I want all employees to be able to work safely and without the fear of injury and illness.

A Roofer’s Guide to Safely Navigating an OSHA Inspection

Almost every American can recite his or her Miranda rights. We have all seen enough cop dramas and world’s wildest police chases on prime-time television to know that when the police, FBI or other law-enforcement agencies get involved that we have the right to remain silent, and we know that everything we say can and will be used against us in a court of law. Unfortunately, many roofing contractors in the construction industry do not remember their rights when an OSHA inspector arrives at their job sites, and this can lead to hefty fines. It is very important for residential and commercial roofing contractors to remember OSHA inspectors are adversaries when they visit your job site, and they are not inspecting your equipment and interviewing the crew out of curiosity. When an OSHA inspector arrives onsite, he or she is usually there to gather evidence to issue a citation.

One of the most discouraging situations that we have seen from OSHA’s recent push for larger fines and more citations occurs when honest men and women in the roofing industry open their arms to OSHA inspectors who arrive at the job. Roofing contractors and their crews are not criminals, and most truly have nothing to hide. The majority of contractors in the industry are hesitant to take a firm stance against an apparently well-to-do government agent on their job site. However, a roofer who opens up and allows OSHA inspectors free and unlimited access to a construction site is making a costly mistake. Therefore, it is important to remember that when OSHA visits on your next project, there are a few key questions that every roofing contractor needs to be able to answer about the inspection.

WHY IS OSHA ON MY JOB SITE?

OSHA will investigate a job site for a number of reasons. Inspectors will show up if an employee has issued a complaint against you, if there is a recent fatality or if there is an imminent threat identified. However, in recent months, OSHA has been after
the residential and commercial roofing industry through a systematic targeting method. The dangers of fall-related injuries in the industry have been well-documented, and this has prompted inspectors in your area to be on the lookout for roofers. Additionally, roofers are the easiest to cite due to the fact that roofing is a highly visible construction trade and an inspector does not have to use much effort to determine the likelihood of a dangerous situation that needs inspecting.

DO I HAVE TO COMPLY? HOW SHOULD I COMPLY? WHAT HAPPENS IF I REFUSE OSHA ACCESS?

First and foremost, you need to know that OSHA has a legal right to inspect your job site. OSHA has what is called “administrative probable cause” to inspect and investigate your project. OSHA’s probable cause is more easily obtained than that of other agencies. An officer of city, state or federal law enforcement needs a much more specific probable cause to enter a private citizen’s property. When an active construction job is taking place, there is an inherent risk of danger and injury, and this gives OSHA all the administrative probable cause it needs.

This is not to say that you or your site superintendent does not have the right to deny OSHA access to the project and demand that the inspector get a warrant. The site superintendent has the option to consent to OSHA’s inspection or deny the inspector access to the project. The superintendent is well within his or her rights to tell the inspector to get a warrant. This is not an easy fix, however. If you tell OSHA to get a warrant, it most certainly will. Because of OSHA’s broad power to oversee safety within the U.S., the agency can obtain a warrant from a judge or magistrate. Once OSHA obtains a warrant for a site inspection, its inspection can become much more invasive. This means OSHA inspectors can get permission from a judge to examine documents; conduct extensive interviews; and also perform scientific tests on items, such as air quality, presence of combustible material or any other danger.

The bottom line is that it is rarely a good idea to tell an OSHA compliance officer to get a warrant. The reasoning behind this has to do with the scope of OSHA’s inspection rights under the Code of Federal Regulations (CFR). The CFR demands that OSHA’s inspection be “reasonable.” This essentially means that the agency is limited to inspect only the men, equipment and materials that are within “plain sight.” “Plain sight” is a doctrine borrowed from criminal law and the Fourth Amendment, which says that a government agent may not sample or manipulate anything that is not within his or her reasonable line of sight. If an agent violates this doctrine, it is possible all the information he or she obtained during the inspection may be suspect.

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