Often, employers are told to know their rights during an OSHA inspection, but how many employers actually know what their rights are during this process? Knowing your rights during an inspection can help narrow the inspection field as well as better understand why OSHA is there in the first place. Employers can be better prepared for an OSHA visit by ensuring they are maintaining their employer responsibilities.
When an OSHA inspection begins, it is important to have an opening conference. In this conference, employers should request any necessary documents from OSHA, including a copy of the complaint from an employee if applicable. Employers may also want to establish when and where any necessary interviews will take place with employees. Employers have the right to request that interviews be scheduled in advance so that it does not affect business productivity. Understanding the rights of employees and employers during an OSHA visit can significantly change the course of the inspection.
The first right that employers have and should understand is their Fourth Amendment right under the U.S. Constitution to be free in the workplace the same way they are free in their homes. This means that OSHA is not allowed to search and inspect the workplace without probable cause. Employers should ask OSHA what their reasoning is for searching and understand that they may demand an inspection warrant if they would like Employers should work with OSHA to negotiate the scope of the inspection with consent when possible.
At least one of the following must be met in order for OSHA to conduct an on-site inspection:
- A written, signed complaint by a current employee or employee representative with enough detail to enable OSHA to determine that a violation or danger likely exists that threatens physical harm or that an imminent danger exists;
- An allegation that physical harm has occurred as a result of the hazard and that it still exists;
- A report of an imminent danger;
- A complaint about a company in an industry covered by one of OSHA’s local or national emphasis programs or a hazard targeted by one of these programs;
- Inadequate response from an employer who has received information on the hazard through a phone/fax investigation;
- A complaint against an employer with a past history of egregious, willful or failure-to-abate OSHA citations within the past three years;
- Referral from a whistle blower investigator; or
- Complaint at a facility scheduled for or already undergoing an OSHA inspection.
Secondly, employers have the right to representation. Generally, OSHA will wait up to an hour for representation to arrive. Representation can come from a third-party affiliation, such as SMART Safety, who can walk the site alongside OSHA taking notes and photos right behind the inspector. Employees who are a part of a union may request that a union representative do the walk along with OSHA as well. The employer should never be the one to select a representative for an OSHA inspection. If there are multiple unions representing employees, each union may choose a representative. In this case, often the union representative will not attend the entire walk through, but will be ready for the inspection of the area their represented employee works in.
Finally, employers have a right to all information that OSHA collects as well as disputing citations if they disagree. If an employer feels like they have been wrongfully cited by OSHA they may challenge the citation among independent administrative law judges who hear challenges to OSHA citations.
Safety services companies like SMART Safety can be a valuable asset to your company in the event of an OSHA visit. Our safety professionals are available 24/7 for OSHA defense as well as training, auditing, staffing and more. Through our fully customized safety program management services, we help our customers create a safer workplace by increasing safety awareness and reducing incidents, which overall increases profitability.
More than just safety consultants, SMART Safety is an integrated safety services system.
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