Common Mistakes to Avoid During an OSHA Inspection
BY AsphaltPro Staff
Undergoing an inspection from the Occupational Safety and Health Administration can be a stressful and intimidating experience. However, going into the process informed can not only help you reduce stress, but can also reduce the chances of making one of the following mistakes.
During his 33 years in the occupational safety and health field and 25 years as an OSHA compliance safety and health officer, Matthew Humphreyville has seen it all. Now a senior industrial hygienist and safety consultant at Universal Engineering Sciences (UES) following his retirement, Humphreyville shares some of the mistakes he’s seen during OSHA inspections.
Mistake #1: Not having a safe, OSHA-compliant job site in the first place
This one may be obvious, but the biggest mistake a company can make is not having a safe job site in the first place.
“We all understand a solid safety and health plan is important,” Humphreyville said. For example, he added, “When the compliance officer is on the job is the wrong time to be thinking about fall protections.”
“Preparing an inspection plan helps you avoid penalty fees and abatement costs into the thousands of dollars,” Humphreyville said. In the example of fall protection, the gear, the procedures, and training should be purchased, discussed and implemented long before OSHA shows up. “The capital costs can be high getting these things figured out up front, but in the long term, you’re going to save yourself money,” he added.
Mistake #2: Not understanding what prompts an OSHA inspection
“A lot of people believe an inspector can just drive down the road, pick out a site, drive in there and do an inspection,” Humphreyville said. “But that’s not legal. If [an inspector] does that, you need to call their department on it.”
Reasons for an OSHA inspection include catastrophes, fatalities, complaints, referrals from other government agencies and program inspections for construction.
Under the plain view doctrine, a compliance officer can also cite any imminent dangers he or she may see. For example, if an officer is driving down the street and sees a 20-foot trench with type C soil with water in the bottom, spalling off the side, the spoil pile right on the side and three guys inside, Humphreyville said the officer can stop and inspect the site. “The plain view doctrine means that if I see a hazard not related to my inspection, I can start investigating that hazard,” he said.
Mistake #3: Not resolving citations by pre-inspection, when possible
When OSHA receives a report of a lower risk hazard, Humphreyville said OSHA may not send out an inspector. Instead, they might call, fax or email the employer to let them know they’ve received a complaint.
“They give [the employer] five working days to look into the issue and reply with a written response,” Humphreyville said. Some of the information that may be helpful in resolving a complaint without an inspection include photographs showing resolution of the issue, safety product purchases and invoices, or conducting employee training.
“If [your response] satisfies the OSHA office, they’ll normally close that [complaint] out,” Humphreyville said. “If you don’t respond, or they have additional questions, they’ll call you. Sometimes, they may actually perform an inspection.”
Mistake #4: Not notifying OSHA yourself in the event of a qualifying incident
“In the event of a fatality on your job site, you have eight hours to call OSHA,” Humphreyville said. “You have 24 hours for loss of an eye, amputation or an inpatient hospitalization other than for observation.” Humphreyville notes that if a person is hospitalized overnight for observation, it may be recordable, but it’s not reportable.
“A lot of times, what happens is the employer thinks the worker’s compensation company is going to report it [to OSHA],” Humphreyville said. Although some districts may be okay with the report coming from other organizations, such as workers compensation or the police department, others want the report to come directly from the contractor. Ultimately, filing that report in the proper time frame is the contractor’s responsibility.
Mistake #5: Not establishing a point of contact within your company to work with OSHA
“You should always have a point of contact with the company to deal with OSHA,” Humphreyville said. “I don’t know how many times I walked onto a site, introduced myself to the foreman, and they didn’t know who to call.”
When that would happen, he would usually suggest calling the person’s direct boss. “But instead of me walking that person through what I think is best, the company should have that process in place.”
The OSHA contact point should have information on the company’s safety program, injury/illness prevention program, the company’s safety manual, hazardous assessments, PPE requirements, logs, equipment records, daily inspection reports and the like. “You don’t have to give all this to the compliance officer right off the bat, but you should have them ready in case they ask for it,” Humphreyville said.
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Mistake #6: Not knowing your rights when OSHA shows up at your job site
“The first thing [an OSHA compliance officer] is supposed to do when they show up to your site is show you their credentials,” Humphreyville said. “They should also be able to tell you why they’re there. Always ask the reason for the visit.”
Humphreyville also recommends checking the officer’s paperwork during the opening conference to ensure the address listed is actually your address. It’s not unheard of for officers to show up at the wrong address; if you don’t check, you may undergo an unnecessary inspection. “It’s incumbent on you to ask those questions, to verify these things when they get there, to know your rights,” Humphreyville said. “They aren’t going to get mad at you; they expect you to ask questions.”
During the opening conference, the officer should provide you with a copy of any complaints and review the employer’s rights, including the right to refuse entry. Although Humphreyville was only refused entry once in his career, it is the employer’s right. In that event, he said OSHA must be granted a warrant before returning for the inspection, which can take anywhere from a few days to a few weeks.
“I don’t recommend this because, in the inspector’s mind, they’ll wonder why you’re refusing them,” Humphreyville said. Although officers aren’t supposed to treat a company differently, he said refusing entry could cast suspicion in the officer’s mind. “They might look a little closer than they normally would.”
During the opening conference, the officer will ask basic questions about the company, including number of employees, management structure, contact information and similar details. “They may ask if there’s a union representation, because the union has a right to be a part of [the inspection], either in the same opening conference or in a separate opening conference,” Humphreyville said.
Mistake #7: Being a jerk to the compliance officer
“Be respectful and courteous,” Humphreyville said. “Even if they’re a nitwit or act like a cop who wants to flex their muscles, just be professional. If you have a problem with a compliance officer, you can always take it up with the area office.”
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Mistake #8: Not following proper safety procedures during the inspection walk-around
Humphreyville said the officer may conduct a walk-around, if necessary. During the walk-around, be sure to wear the appropriate PPE and ensure the OSHA representative also has the appropriate PPE. “You want to show some initiative here,” he said.
If the compliance officer sees something during the walk-around, Humphreyville recommends taking some kind of immediate corrective action if possible. For example, taking the machine in question out of service.
Mistake #9: Not taking your own photos and notes during the inspection
“As the walk around occurs, if the [compliance officer] takes a picture, I recommend you take the same picture,” Humphreyville said. If they write down an issue, you should write it down, too, he continued.
Mistake #10: Giving the compliance officer more information than requested
“Don’t offer information unless the compliance officer requests it,” Humphreyville said. “Don’t be evasive and don’t lie, but don’t roll out the red carpet and start throwing information at them.”
Although it’s an obvious mistake to lie during an OSHA inspection, Humphreyville said the types of actions that are most likely to result in a criminal review include mail fraud, lying to investigators or sending false documents. “Those are the types of cases that tend to get picked up by the Department of Justice,” Humphreyville said.
There’s also some information you aren’t required to supply. For example, a copy of your incident report. Although this was something Humphreyville always asked for, he added that “the investigator is supposed to investigate that on his own. The reason I asked for it was I wanted to see what internal processes [a company] has in place to investigate these events for future improvement.”
Furthermore, Humphreyville stressed the importance of providing the officer with copies of any documentation you supply. “Don’t ever give them your original.”
Mistake #11: Not understanding your employees’ rights
According to Humphreyville, OSHA now performs employee interviews at almost every inspection. During these interviews, the officer will ask employees questions, write down his or her answers, and request that the worker sign his or her statement.
“Employees have the right to talk to the [compliance officer],” Humphreyville said. “They can request to talk to them and the employer cannot refuse the employee’s request.” If an employee cannot speak English but wants to speak to the officer, OSHA will get an interpreter.
If an employee brings up issues beyond the scope of the investigation, Humphreyville added, the officer is supposed to focus on the specific inspection. However, any additional information provided may be featured in the report or may instigate a separate complaint.
On the other hand, employees also have the right to refuse to talk to OSHA. They also don’t have to sign their statement if they don’t want to. Humphreyville said he’s seen some employers’ lawyers advise them never to sign a statement or even read it. “[These attorneys] look at [the statement] as if it’s notes on the conversation,” he said.
Humphreyville said it’s also relatively common for employers to try to oversee employee interviews. Although some employees may agree to this, he adds that the employee has the right to talk to OSHA by themselves or have their own designated representative with them.
“When you cross the line into management personnel, then you can have a company representative in there,” Humphreyville said.
Mistake #12: Not asking questions during the closing conference
After the inspection is concluded, the compliance officer is supposed to hold a closing conference. Humphreyville said this is an ideal time to ask any questions and request an abbreviated version of what they’ve found.
“I’d also ask if they think they’ll need to come back for more interviews, more walk-arounds, etc.” Humphreyville said, to get an idea of what’s to come. He said this also provides a time to review citations and even to request that serious citations be reduced to other than serious. “Sometimes that’s a way to settle [disputes],” Humphreyville said.
Mistake #13: Not following proper procedure in the event of a citation
“When you get a citation, you’re supposed to post that for employees to view,” he said, for three days or until the hazard is abated.
“Failure to abate is when you don’t abate a violation; a violation repeat is when you fix the violation but it reoccurs,” Humphreyville said, adding that OSHA can cite you for a repeat on a different standard so long as it’s closely related to the original citation.
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Mistake #14: Promising corrective measures you can’t deliver on
In the event of OSHA proposing corrective measures, Humphreyville said it’s acceptable to request more time to research potential solutions “so long as it’s in good faith.”
“Take the time to look into solutions, to research them, to see if that’s really something you’re going to be able to do,” Humphreyville said. “You don’t want to tell OSHA something and then have to backtrack.”
Mistake #15: Not going above and beyond OSHA’s standards when necessary to maximize employees’ safety
“Remember, OSHA standards are minimal safety standards,” Humphreyville reminds us. There may be safety best practices above and beyond OSHA’s requirements, including state or local standards or even requirements from the general contractor on the job.
“OSHA can’t cite you for [breaking] an employer’s rule,” he said. For example, if a GC requires hardhats on a site where OSHA doesn’t require them and a subcontractor doesn’t follow the GC’s rule, that is not an OSHA issue. But, it may still be necessary to improve safety on that particular job site.
And we should all be doing our best to maximize employee safety—not only to avoid OSHA citations, but because it is the right thing to do.