OSHA Inspections: Dos and Don'ts

What rights do you have as an employer or an employee when an OSHA inspector arrives at your door? In this episode, Pandy references advice from Matthew Horn, attorney from Amundsen Davis, with his advice and step-by-step guide for OSHA inspections.

Transcript

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We're talking OSHA today. I know you love that topic. And the good thing about it is that OSHA affects everyone. There isn't a firm out there. There isn't a company out there where OSHA doesn't have some sort of jurisdiction over maintaining, helping you maintain a safe and secure workplace. I mean, the general duty clause. And we've talked about this a number of times. But I ran across a really nice paper from an attorney over at Amundsen Davis. His name is Matthew Horn. And I didn't think he would mind if I mentioned how well he did in outlining how do we handle an inspection? And when I'm talking about an inspection, I'm talking about if you get a knock on the door or a phone call from a representative of OSHA saying, we'd like to come on, we'd like to come in, we'd like to do an inspection. How do you handle that? And it's it's interesting because I'm going to guess that a great percentage of you are not prepared for this. And it's so simple. He has laid out a wonderful outline here. So I want to go over some of these points with you and give you some of the do's and don'ts. Hopefully, you'll have enough questions or um want to learn more, and you'll reach out to Matthew directly. But let's take it from the top. Because at some point, again, if you've been an HR for a while, if you're in manufacturing, construction, it doesn't matter. There's a good chance that there could be a knock on your door and someone should could just show up. So let's talk about the response team. How many of you actually have a response team? Now, the last time you heard me ask this was when we were talking about ice raids. And that was just a couple shows ago. Uh Carl Ulrich was in, and we were talking about having a group of people who are prepared to respond to these unexpected pop visits. And it it's it's it's a bad it's a valid question because do you really want your receptionists or do you really want um your administrative assistant talking to these individuals and and and dealing with these things? Of course not. It is not their job, they don't have enough details, they don't um necessarily uh handle these kind of situations well because they don't, it's not required of them. It's not who they are. So get a response team put together. Let's talk, start talking to your teams, talk to your ownership and say, look, if or when an OSHA inspector comes in, who should be front and center? Who should be the ones responding to the questions? Who should be uh accompanying this individual through the company or through the building? And put those names together and create a list. Because when the inspector shows up, they're going to be greeted by the receptionist or whoever's there at the employee entrance. And Matthew's recommending let's put them in a comfortable spot, put them in a conference room, put them in a place just like we talked about with the ice rates, put them in a place where they're contained, they're comfortable, we're being professionally respectful, but we are putting them there to say, we're, I'll get the appropriate individuals, we're going to go to our response team, and somebody will be right with you shortly. Now, this is really important because we don't want to shut the door on the inspector, we don't want to tell them they have to come back at another time. Let's put the response team in charge of what's going on. And then once the response team gets there, and that could include your labor law attorney. Let me let me just throw that in there for you. In some situations, if you know that you've had a workplace injury that is significant. And I'm talking not just forklift accidents, which have been the absolute worst for me, but anything that you feel that OSHA might want to do an inspection on, pick up the phone, make sure your labor law attorney is aware. Um, tell them it's urgent because you've got somebody in the building and you want to know if they want to be there to accompany this individual through the inspection. And then you have every right to ask, is this an employee injury? Are you here because of an employee complaint? And if so, if it is a complaint, you have the right to ask for a copy of that. Before they even walk through the next door, you have the right to ask for a copy of that. Is it a scheduled inspection? If not, if they're doing a surprise inspection, you and your labor law attorney may want to see if you can push that out to a scheduled time. But again, that's a discussion between you and your labor law attorney. And then is it because of an observed hazard? Maybe somebody walking down the sidewalk saw something that they felt was very, very dangerous to the community, or something an individual complained because they saw or heard of something going on in your in your company that um is not an employee complaint, but certainly something that OSHA might want to be privy to. You have the right to ask those questions. But again, you want somebody of authority, somebody on your response team asking these questions and documenting. You want to you want to know who the inspector is. You want a uh a copy of his verification or or validation that he's with OSHA. Um they have to, I mean, it's required for them to explain the scope of why they're there. And you know, Matt is very, very um clear in saying that you as an employer have certain rights. And if you don't know what those rights are, you could make a mistake that could be detrimental to any decision made moving forward. But if you allow the inspector to move forward and move throughout the building, you have the right to limit their movement, accompany them. Matt recommends limit the inspector's inspection to only those items involved in the employee injury or referenced in the employee complaint. If the inspector takes a picture or a sample, take the sample picture or sample as well. You want to know what they know. You want to have reference to what they're going to reference to. And if the inspector does not take a picture or samples, that would be good for you, then take them yourself. What are you doing with all this? You're being proactive. Matthew's trying to lead you down a road where you can control the situation and not feel like OSHA is trying to bully you or that OSHA knows more than you do, or OSHA's trying to pull one on you. And again, your attorney will be extremely so valuable in helping you walk through this. I don't know a lot of consultants who are appropriate for this situation. There are some great safety consultants out there. Absolutely. But are they going to represent you in a court of law? No. Are they going to represent you at the workers' comp case if that goes to a big claim and you get sued for that? No. You want your labor law attorney there. So if the OSHA inspector wants to interview hourly employees, they have rights as well. And Matthew defines those as conversations that you need to have with the employees before they even get into that conference room with the inspector. They're not required to sit for an interview unless they are willing to do so. Wow, did you know that? Did you realize that your employee can look at you and go, leave me out? I I don't want anything to do with this. They can stop the interview at any point during the conversation with an inspector. Which means if they feel that it's getting too tense, they don't have to stay, they're entitled to have their union steward or attorney at the interview if they so desire. And I'm telling you, as a mediator and arbitrator, you don't deny that. You don't deny that. If that employee asks for representation, you make sure that they get it. They are entitled to an interpreter if they believe they need one. They are not required to be recorded or to sign a statement prepared by the inspector, but may sign the statement if, after having read the statement, they agree with it. And again, Matt's telling you: look, we've got to allow the employees to decide how do they want to participate with this, and they deserve legal counsel as well. And you're in the union, stewards will know when to draw the line, back them away, and get them an advocate or an attorney to help with them. Now, what if the inspector goes to the next level and wants to interview a management employee? This is where you have to make absolutely sure that your attorney is present. If nothing else, you're calling and saying, look, we've he's already interviewed some employees. I he now wants to interview the supervisor of the area. He wants to um um interview the manager of maintenance. Is this a good thing? Or what what should I be aware of? Because here, remember, those individuals are speaking on behalf of the company. They are truly company representatives. That's that's so risky in what they might say, what they might do. And you really need your guidance from a labor law attorney at that point. If the OSHA inspector requests any documentation from during the on-site inspection, do not provide it for them with any documentation other than OSHA logs. Now remember, 300 OSHA logs, we've talked about those. You should have those posted January through April, and you can you can pull those up. There's nothing confidential on that, those uh logs. There's absolutely nothing that that OSHA person is uh unable to see. But the first report of injury form, any any documentation on any of the rest of it, uh whether the person was trained, that all should go through your attorney. And Matt's really good about breaking this down again to help you understand these things are not they're they're not a lack with a lack of emotion. People see OSHA walk in the door and they start panicking. And we get it. If you've been through a difficult situation where an employee did get hurt, yeah, everybody's gonna be a little tense. We understand that. But at the same time, you can't avoid going through an inspection if it's for all the right reasons. Matt, sorry I didn't have a chance to really call you and ask you to uh be on the show. But boy, if you hear the show and want to be on it, you have an open invitation because this was a wonderful paper. And I hope that each of you in the audience were able to pull something away from it. If you would like to learn more, please reach out to Matt at Amundsen Davis or reach out to me on LinkedIn. I'll be more than happy to give you his information. Keep your questions coming. We love taking care of this for you. Right here at the human resource.