Maintaining a good OSHA record is more important than ever, as OSHA citations can be as much as $70,000 for a single repeat or willful violation. Not only are fines going up under OSHA’s increased emphasis on enforcement, but customers, insurance companies and others are increasingly scrutinizing a company’s OSHA record as a condition of doing business. Proper handling of an OSHA inspection can help minimize this liability, say attorneys from Sherman & Howard’s Occupational Safety and Health Law Group in their new “Employer’s Guide to OSHA Inspections.”
During the inspection, these attorneys recommend you know your rights regarding the following:
• Accompanying the Inspector. The law provides that your representative shall be given an opportunity to accompany the inspector. You should always exercise this right, these attorneys state. If your designated representative is not immediately available when the OSHA inspector arrives, request that the inspector wait until your representative can arrive to begin the inspection. The law also provides that a representative authorized by the employees, usually a union steward, shall have the right to accompany the inspection. Generally, you have no say in the selection of the employee representative.
• Photographing, Videotaping, Measuring and Environmental Sampling. Typically the inspector will photograph or videotape the workplace, take critical measurements and conduct environmental samplings, such as air samples or noise measurements, depending on the type of inspection involved. Unless trade secrets are involved, you generally have no right to object.
• Video or Audio Taping Employees. Employer representatives have the option of telling the inspector that they do not wish to have their comments recorded.
• Taking Your Own Photographs and Measurements: Your employer representative should take his or her own photographs and measurements either during or immediately after the OSHA inspection. Your representative should also take good notes of what the inspector does during the inspection.
• Considering use of Your Own Experts: Complex health inspections involving, for example, air contaminants or noise, pose special issues. Your employer representative may not have the expertise to effectively monitor or replicate OSHA’s scientific monitoring. In such cases, you should consider designating your own expert, such as an industrial hygienist, to accompany and monitor those portions of the inspection and, if appropriate, do side-by-side testing and observation.
This firm also recommends correcting unsafe conditions as soon as possible.
“If possible, you should always correct unsafe conditions observed during the inspection as soon as possible or after the inspector departs,” the firm states. “In the event a citation is issued, this corrective action will demonstrate your good faith and may result in a lower penalty. On the other hand, failure to correct an unsafe condition pointed out by the inspector could result in higher penalties or a willful violation.”