The Department of Labor’s Occupational Safety and Health Administration (OSHA) performs more than 30,000 workplace inspections annually. As construction is one of the most hazardous industries, construction job sites are regularly targeted for inspections. While OSHA usually does not give advance notice of an inspection, there are steps Texas construction companies can take in advance to ensure they are prepared for an OSHA inspection.
Have an Inspection Response Plan in Place
Texas construction firms should have a plan in place for how they will respond in the event of an OSHA inspection. Having an existing plan will remove some of the panic and potential missteps that could ensue after hearing the words “OSHA is at the door.” Appoint a member of your management team to serve as your company’s OSHA representative. When OSHA arrives, this individual should be contacted immediately. The OSHA representative is responsible for liaising with the OSHA health and safety officer throughout the inspection process. A second company leader should be appointed deputy OSHA representative, to fill in if the other individual is unavailable. Both individuals must be experts in your company’s health and safety program as well as OSHA standards that apply to your company. Both leaders should be trained to best represent your interests during an inspection. If your OSHA representative is not on the job site when OSHA arrives, the agency will generally wait up to about an hour for him or her to arrive before preceding with the inspection.
Conduct Self-Audits to Ensure Compliance
The best preparation for an inspection is ensuring in advance that you are in compliance with all applicable OSHA regulations and standards. Employers should have a robust health and safety program in place that is led by a safety officer, chief human resources officer or other professional with expertise in OSHA compliance. All staff members should be educated about their safety rights and responsibilities, and OSHA’s employee rights poster should be prominently displayed in an area where workers gather, such as a break room. Perform self-audits of job sites and procedures regularly to ensure continued compliance with OSHA regulations. A self-audit can help identify potential safety hazards and allow you to bolster your safety protocols to prevent workplace injuries or illnesses. It can also help you close any gaps in your compliance before OSHA discovers them during an inspection.
Maintain Up-to-Date Records
Record-keeping is an integral part of OSHA compliance. All required documentation, such as employee training records, should be completed in a timely fashion and available to be produced during an OSHA inspection. Construction employers with 10 or more employees must record serious work-related injuries and illnesses using OSHA’s Forms 300, 300A and 301. Records must be maintained at the worksite for at least five years and presented to OSHA for inspection upon request.
Know Your Rights During an Inspection
Employers have certain rights during an inspection, and it’s important to be aware of them. When an OSHA compliance officer arrives, you have a right to request that the inspection be delayed for a reasonable amount of time, such as an hour, to allow your OSHA representative and possibly your attorney to travel to the site. This short delay will also allow for some last-minute preparations in advance of the inspection.
During the inspection’s opening conference, the compliance officer is required to present credentials and tell you the reason for the inspection. If the inspection stemmed from a complaint against your company, you may ask to see a copy of the complaint. You should also ask the compliance officer about the planned scope of the investigation and whether OSHA has a warrant. In most cases, you have a right to demand that OSHA obtain a warrant prior to investigating. However, this is not usually advisable, since OSHA may interpret this request as a hostile act and assume you are hiding something, which may lead to a broader inspection once the warrant is produced. A better strategy is to informally negotiate a narrower scope for the investigation, including limiting the documents to be produced, the witnesses to be interviewed, and/or the facility areas to be made available for inspection.
Your OSHA representative (and attorney) should accompany the OSHA compliance officer on the walk-around and keep detailed notes of what is said. If the inspector takes photos or videos, your representative should photograph or videograph the same things. Having this evidence available may come in handy later if you must defend against a citation.
The inspector will likely ask to interview some employees. Your OSHA representative and attorney may generally be present during interviews with managers, but not rank-and-file employees. Members of the latter group are entitled to be accompanied by their own representative, who can be an employee or non-employee. Employees should be advised to tell the truth but to avoid commenting if they do not have first-hand knowledge of a situation or if a particular issue falls outside their areas of expertise. Employees are not under any obligation to speak to the OSHA inspector. Further, employees can refuse to allow OSHA to record their conversations, and they are not required to sign a written statement after speaking to OSHA. If they do sign a statement, employees should request a copy of their signed statement.
Even when conversations are not recorded, whatever your OSHA representative and others say during the investigation can be used against you. Therefore, avoid volunteering extra information.
While OSHA inspectors do not issue citations, they give recommendations as to whether a citation should be issued. During the closing conference, ask the inspector about any problems they found that could indicate a citation is likely forthcoming.
The OSHA lawyers at Pappas Grubbs Price PC assist employers with the complex OSHA compliance process and help clients assert their rights throughout the OSHA inspection process. With offices in Houston, Dallas, Austin and San Antonio, we have successfully represented hundreds of clients across Texas and beyond in OSHA investigations and litigation. To speak to an OSHA attorney near you, contact Pappas Grubbs Price.
