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OSHA Inspections: Know Your Rights, Responsibilities (Part 1)

ALEXANDRIA, Va. — Visit the Occupational Safety & Health Administration’s (OSHA) newsroom page and you’ll see them—“whistleblower” news releases detailing companies that have been fined by the agency for violating workplace safety regulations.

In addressing these fines, Edwin G. Foulke Jr., partner for the Atlanta office of law firm Fisher & Phillips LLP, stresses the need not only for workplace safety programs, but also for employers to know their rights during OSHA inspections.

Foulke addressed these topics in a recent Textile Rental Services Association (TRSA) webinar titled Effectively Handling an OSHA Inspection: How to Legally Protect Your Rights.

Workplaces, from small companies to major corporations, have all faced citations from OSHA in some form, according to Foulke, which, in recent years, have ranged from $509,000 to $87 million.

“Don’t think that because you’re a small- or medium-sized employer that you can’t have citations like this,” says Foulke.

THE SUPERVISOR’S/EMPLOYEE’S LEGAL ROLE

Before issuing a citation, however, OSHA must have “burden of proof” that the employer “had knowledge of the safety hazard, or the violation,” Foulke explains.

Because of this, above all, Foulke stresses the importance of having a list of safety rules established, and ensuring that all employees are aware of these rules as part of a safety program.

“Make sure that they are aware of that list and then when they violate those programs, they can be disciplined,” he says, adding that discipline can be used as an “affirmative defense” to demonstrate to OSHA that the employer has taken steps to prevent employee misconduct.

Foulke also emphasized the importance of documenting employee training, and that not only should workplace safety accountability fall on employees, but on supervisory personnel as well, since they will be the ones assisting the OSHA compliance officer during inspections.

“[The OSHA officer] may be asking questions and that’s why it’s very critical that the person who’s answering the questions understands his/her responsibilities because whatever he/she says as a manager or supervisor [is] going to be imputed to the company, and that’s going to be evidence of knowledge of the violation [and] it could be used for basis for a willful violation,” says Foulke.

Frequently cited OSHA standards in the commercial laundry industry, according to Foulke, are violations in lockout/tagout, hazard communication and general requirements for walking/working surfaces, among others.

PRE-INSPECTION PLANS

In the event of an OSHA inspection, Foulke explains, one of the “pre-inspection action plans” employers should have established is their “assignment of responsibilities.”

“If OSHA shows up, who’s responsible to meet with [them] and handle that inspection?” he asks.

One other preparation employers should be mindful of is having record-keeping of training on hand.

“If you don’t document [employee training], you’re not going to have anything to prove that you did it.”

Another document to keep updated is OSHA’s 300 form for logging work-related injuries and illnesses, according to Foulke, who adds that though OSHA can only cite companies for occurrences in the last six months, it can be used as an indicator for repeat violations.

“It’s a road map for them to [see] where you’re having most of your injuries. This is a way to expand the inspection because they’re entitled to the OSHA 300 logs,” says Foulke. “They’re going to look at that and if they see [that] 60% of the injuries they see in the logs are all occurring in Department A … obviously, there’s some safety hazards there. Now, they have a basis for [inspecting] that area.”

Staying on top of previous citations is key, he adds, particularly for those with multiple facilities.

“OSHA is going to know your previous history. They’re going to know what you were cited for,” says Foulke. “If you’ve been cited for the same thing at that facility, or another facility, in the last five years, they can cite you for that as a repeat [violation].”

INSPECTION RIGHTS

The depth of OSHA inspections can vary, according to Foulke.

While employee-based inspections are “limited to the complaint itself,” other inspections, like “high-hazard industries” and “special emphasis programs” inspections, may provide for “wall-to-wall” analysis of a facility, says Foulke.

Regardless of what type of inspection OSHA shows up for, Foulke stresses, facility owners do have rights, including asking for the credentials of the OSHA compliance officer, and having the inspection conducted at a reasonable time and manner.

“If OSHA shows up at 2 a.m., and the only person there is a guard or maintenance person … that’s not a reasonable time,” he says. “The other thing is they have to complete the inspection within six months [and] must issue citations within that time period.”

Foulke adds that OSHA will not give “advance knowledge,” or notice of an inspection, and will not “come back later.”

“They will wait an hour,” he says, “[but] any longer than that and they’ll treat that as a refusal of entry.”

“But, we always want to make it clear to them that we’re not denying them entry, we’re just making sure the right company people are present to be able to assist him/her on [the] inspection,” he says.

Check back Tuesday for the conclusion!

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(Image licensed by Ingram Publishing)

Have a question or comment? E-mail our editor Matt Poe at [email protected].