By: Steven G. Gatley

In 1970, Congress created the Occupational Safety and Health Administration (OSHA) to ensure safe and healthy working conditions for working men and women. Over the past few months, I have been inundated by employer inquiries on how to deal with OSHA and COVID-19 issues.

Since the pandemic started, there have been over 31,000 COVID-19-related complaints to federal and state OSHA offices. OSHA has a number of ways to investigate these complaints, including written inquiries, document requests, and inspections. An OSHA inspection can sometimes be quite intimidating for employers. Therefore, employers should know their rights before OSHA shows up for an inspection. Seven key elements of OSHA inspections, along with employers’ corresponding rights, are described below.
 
Inspection – Some inspections are planned, but OSHA can also make unannounced visits, such as in response to an employee complaint or following an accident or exposure. An employer’s primary objective should be to limit the scope of the inspection. OSHA can cite for any observable offense, so limiting the area that inspectors examine is vitally important. Never offer to give the inspector a tour of your entire facility. 
 
Opening Conference – This is the most important part of the inspection, and is usually your first contact with the inspector. The opening conference allows you to learn why OSHA is conducting the inspection. If the inspection is due to an employee complaint, ask to see the complaint so that you may limit where the inspector goes in the facility according to the area(s) implicated in the complaint. 

Let’s assume the visit is unannounced. Employers should have a plan in place to address an unannounced visit. They should designate one person, such as a member of the Human Resources (HR) department or someone responsible for employee safety, to engage with the inspector. If the designated person is not located at the facility where the inspection is occurring, ask the inspector to wait for the designee. Inspectors usually will wait up to one hour. If it is not possible for your designee to attend every inspection, then have the most senior management personnel meet and accompany the inspector. 
 
 Walk-Around – Employers must have someone accompany the inspector at all times who will take the same photographs and measurements as the inspector. If the inspector needs to enter an area that requires Personal Protective Equipment (PPE), make sure that the inspector has their own. Do not lend them yours, or the inspector could find fault with the type or condition of your equipment.
 
Interviews – OSHA may interview employees, but the employees are also permitted to refuse to consent. Ensure that employees are aware of their right to refuse to be interviewed. If OSHA asks to interview anyone in management, you may ask for another manager, or preferably counsel, to be present. Counsel should be present when managers or supervisors are interviewed because their statements can legally bind the company. Do not volunteer any information during the interview or the inspection. 
 
Documents – The inspector can ask to review documents such as your logs or, in places like California, your written Illness & Injury Prevention Program (IIPP). Failure to have an adequate IIPP is one of the most citable offenses, so it is best to have your plan reviewed on an annual basis. Although OSHA may ask for other documents, you should not feel rushed to provide them if they are not readily available, or if the request seems unreasonable or unrelated to the complaint. Instead, ask the inspector to put the request in writing so that counsel can review it and possibly limit its scope. Also, be wary of requests for video surveillance. The accident or exposure may have been caught on video. Usually, OSHA is entitled to obtain the video, but employers should only provide footage of the time and location of the incident. Producing too much video opens up the employer to other unrelated citations if the inspector sees any observable violations. 
 
Abatement – If there are any violations that can be fixed during the inspection, fix them while the inspector is there. This will usually decrease the fine and possibly the severity of the offense.
 
Closing Conference – The inspector must provide you with the preliminary findings. Preliminary findings, however, do not indicate that you will get cited. Thus, this is not the time to argue. If you do get cited, there is a process to seek early resolution via an Informal Conference. If that is not successful, employers may appeal. 

In summary, employers should design a plan to execute when OSHA arrives for an inspection. Given the high volume of COVID-19-related complaints recently, the likelihood that employers will have to face an OSHA inspection rises every day.