The OSHA Inspection: Part I – Preparing for a Future Inspection
Part I – Preparing for a Future Inspection
For nearly 15 years, I was a contractor. I attended many safety courses and contributed to dozens of “tool box” talks. While sitting behind my desk in 2007, I received a call from one of my Superintendents. When I answered the phone, he asked if I was sitting down, and then he said, “A GUY JUST DIED OUT HERE.”
Every contractor dreads the day that he will get a phone call regarding a job site injury or fatality. My first reaction to the call was shock, then I started asking questions to determine: who, how, when, and who else knows about this incident. My second reaction was relief, because I learned the victim was not one of my employees, the death occurred as a result of natural causes, and the victim left the job site before he passed away. I escaped a nightmare, and I knew it. Fortunately though, for my company, that fatality set in motion my need to understand what would happen if a job site fatality occurred and OSHA came to visit.
When contractors think of an OSHA site visit, numerous negative images come to mind, and every contractor is nervous. While being nervous is normal, remembering and implementing three rules will help alleviate some of the stress that comes with an OSHA inspection. The rules are: (1) Plan for the OSHA Inspection; (2) Maintain a Culture of Safety; and (3) Remember that OSHA is not here to help.
This is the first of a three part series that explains these rules.
As stated, the first rule is to Plan for the OSHA inspection. Regardless of the reason for the inspection, if you have not planned in advance for the inspection, you will make mistakes. When developing your plan, there are several key decisions that must be considered which are discussed more fully below. These decisions, and how you plan for them, will determine not only how successful your OSHA inspection turns out, but also the consequences after the inspection.
The first decision you must make is deciding who will determine if OSHA is allowed to inspect. The person with this authority needs to know and understand the company, its safety culture, and the project that the OSHA inspector wants to inspect. The person also needs to understand the consequences of the decision, and be able to weigh the consequences of allowing the inspection versus making the inspector get a warrant. For large companies, the person making the decision may be the Superintendent; while for small companies, the person making the decision may be the Project Manager or Company President. Regardless of who is making the decision, the competent person and superintendent on every project must know the identity and contact information for this person so that they may be contacted immediately upon OSHA’s arrival or a jobsite injury or fatality.
Another decision that must be made to prepare for an OSHA inspection is to determine the person that will be the company’s liaison with OSHA during and after the inspection. This person must know and understand OSHA’s regulations, will follow the OSHA officer during the inspection, take all phone calls from OSHA, document everything that occurs related to the inspection, arrange and schedule employee interviews, and assure compliance with any agreement between OSHA and the company related to the inspection. It is best to select someone who is well organized and careful about what he/she communicates.
Perhaps the most important decision is whether the company will allow the OSHA inspector to make the inspection without a warrant. While in some circumstances OSHA has the right to inspect your project without a warrant, in most cases, particularly a random visit, or a visit where there is no imminent danger to human life or health, OSHA must have your consent or a warrant before it can conduct an inspection. In many cases, this decision cannot be made in advance, but the person making the decision needs to fully understand the benefits and consequences of this decision. More often than not, the best decision is to let the OSHA officer inspect without a warrant. If you are considering telling the officer to get a warrant, consider several factors before making this decision: (1) what is OSHA’s stated reason for the inspection; (2) what is your company’s safety culture (in other words, do you have any idea about whether your site has significant violations); (3) do you know that you have violations that you can correct before the OSHA officer gets a warrant; (4) will the fact that you knew the inspection was coming create an implication that any violations found are willful; (5) are the expected violations so harmful that it is worth having the inspector look for every violation he/she can find upon their return with a warrant; and (6) how will the decision look to the project Owner?
In addition to the decisions discussed above, another important step to take in preparation for an OSHA inspection is employee training. A well-trained employee will understand that he/she does not have to answer an inspector’s questions (unless subject to a subpoena), that the inspector is not on site to help the company, to always tell the truth, and that a company representative has the right to be present during all employee interviews.
Keep in mind that safety is a state of mind. Your culture should promote safety. A culture of safety starts with a commitment by leadership to safety followed by a thorough safety plan. The culture must be enforcement from the top of the chain to the very bottom and requires up to date training to adapt to the ever changing conditions of the industry. If you make safety a priority, your employees will do the same. If you don’t, they won’t.
Don practices in the areas of construction law and business litigation. His construction law practice emerged from his deep experience in the construction industry. As a teenager and college student, Don worked as a laborer and carpenter for his father’s construction company. At Clemson University, Don earned a degree in Construction Science and Management. After graduating from Clemson, he worked as a project manager for several construction companies and eventually started a small general contracting business in Greenville, SC which he operated for almost ten years. Realizing that he could bring an insider’s perspective to the practice of construction law, Don went on to earn a law degree at the University of South Carolina School of Law. He can be reached at 704-944-3244 or dterry@smithterrylaw.com.
