Anticipating, Preparing for, and Handling Surprise OSHA Inspections

by King & Spalding
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Under the Occupational Safety and Health Act of 1970 (the "Act"), the Occupational Safety and Health Administration ("OSHA") has very broad powers, including the authority to conduct workplace inspections without providing notice. It is key that energy industry professionals know how to prepare for and correctly handle these types of inspections.

The Act has been interpreted to provide broad authority to OSHA, and authorizes OSHA inspectors to:

Inspect and investigate during regular working hours, and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent, or employee. 29 U.S.C. § 657 (a).

Because there are over 7.2 million workplaces within OSHA's jurisdiction, around 2 percent of American workplaces are inspected per year.

In 2012, for example, OSHA proposed $140,000 in penalties against a Louisiana pipeline construction company after an OSHA inspector noticed "two willful violations for exposing workers to the possibility of a trench collapse." Similarly, OSHA proposed $180,180 in damages against a Colorado pipeline construction company after an inspector observed "seven safety violations for exposing workers to cave-in hazards." In 2011, as part of OSHA's Oil and Gas Regional Emphasis Program, a Texas oil drilling company was cited for over $53,460 after an inspection uncovered "12 serious violations, including exposing workers to electrical hazards, unguarded floor holes, inadequate eye protection and hazards involving unguarded machinery."

Anticipating and Preparing for an Inspection

Although the frequency of OSHA inspections is unpredictable, it is important to anticipate inspections and to be prepared for the possibility of an OSHA inspector arriving unannounced.

A company can better identify the likelihood of an OSHA inspection by understanding OSHA's inspection priorities. Industries or workplaces falling within these priorities are the most likely to be subject to inspection. There are five priorities: (1) investigating conditions posing an imminent danger; (2) investigating catastrophes or fatal accidents; (3) responding to employee complaints; (4) high hazard industries; and (5) follow-up inspections. While a catastrophe or fatal incident makes a workplace extremely likely to be subject to an OSHA inspection, merely being in a "high hazard" industry also increases the likelihood of inspection.

There are several recommended steps to preparing for an OSHA inspection:

  • Appoint an OSHA point person to be responsible for the site visit if an OSHA inspector shows up on site;
  • Make sure the receptionist, front desk, or security personnel know who to call and what to do if an OSHA inspector arrives;
  • Keep a camera and video camera on hand to use simultaneous with any OSHA inspection (make sure to take photos and videos of any items an inspector observes); and
  • Have a route in mind that illustrates safety achievements and strengths, although remember that an inspector has the authority to choose a route.

The Inspection

If an OSHA Compliance Officer (CO) shows up at the workplace unannounced the employer should try to identify how the workplace was selected for inspection and what the scope of the inspection will be.

At any point, the employer may request a warrant, as OSHA cannot inspect a workplace without the employer's consent or without a search warrant. If the employer requests a warrant, OSHA may get a warrant based on administrative probable cause or upon evidence of a violation. The resulting inspection may be more thorough than the informal inspection would have been—as a result, it is not always advisable to press the CO for a warrant.

During the inspection, the employer representative may accompany the CO during the walkthrough. The CO may choose the route of the inspection, and is authorized to take photographs, video recordings, instrument readings, and samples. The employer should take careful note of the photographs and readings the CO takes. The CO is also authorized to examine records and talk to employees, so long as it does not disrupt the operations of the workplace.

At the end of the inspection, the CO may conduct a closing conference in which he or she informs the employer of any violations or hazards, prior to issuing a citation. During the closing conference, the employer may choose to produce additional records illustrating its compliance efforts, especially if the CO has identified an alleged violation.

For further information on OSHA inspections, please visit:

Neville C. Tompkins, A Manager's Guide to OSHA: What Every Manager Should Know (available at www.cert-press.com/proddesc/courseware_sample/1418862606.pdf)

U.S. Department of Labor, OSHA Inspections (available at www.osha.gov/Publications/osha2098.pdf)

 Martha Buttry Daniels
 Houston
 +1 713 276 7305
 mdaniels@kslaw.com

 View Profile »

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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