OSHA Showed Up. OSHA Issued Your Company a Citation . . . Now What?

At some point, all construction companies or manufacturers will have a visit from an Occupational Safety and Health Administration (OSHA) inspector. The inspector may or may not be expected. Either way, it is imperative for your company to have already established a plan to effectively manage an OSHA visit, the inspection, and possible citation. Additionally, communicating the established protocol of the plan to appropriate personnel so that everyone understands their responsibilities is critical. This article provides an overview of what you can expect and should plan for when an OSHA inspector arrives, as well as provides an introduction to immediate steps you should take if your company receives a citation.

The Inspector Arrives

When the inspector shows up at your jobsite he or she should present his or her credentials and ask to meet with the supervisor who is responsible for the jobsite or facility. The inspector should advise you of the purpose of the inspection (i.e., whether it is a scheduled inspection, the result of a complaint, etc.). You do have the right to refuse the inspection; however, this will prompt the inspector to obtain an inspection warrant or a subpoena for your records. You should take a reasonable time to gather the appropriate personnel (i.e., your safety director, a manager, etc.) to attend the opening conference with the inspector.

The Opening Conference

During the opening conference, your appointed representative(s) should take good notes and ask about the purpose and scope of the visit. If there has been a complaint regarding imminent danger, a fatality, or a catastrophe, the opening conference will probably be cut short, and the inspector will want to proceed directly to the scene of the accident. However, if the inspection is the result of a complaint by a third party or an employee, you should ask for, and you are entitled to receive, a copy of the complaint prior to proceeding with the walk-around inspection. Other reasons for inspections include referrals from other government agencies, programmed inspections, follow-up or abatement inspections, and monitoring inspections. Knowing the purpose and scope of the visit will help you determine the scope of the walk-around inspection. Since OSHA inspectors maintain the right to interview employees and review relevant safety documents it will be important during the opening conference to ask whether they plan to do so or not.

The “Walk Around”

After the opening conference has concluded and you have been made aware of the scope of the inspection, lead the inspector directly to those areas that he or she wants to see. Listen carefully to comments the inspector makes and take notes of any specific remarks. Your company should have either the safety director or a manager accompany the OSHA inspector, and duplicate every photo and/or video taken during the inspection.

Consult Your Lawyer

As soon as you have notice that OSHA is going to be conducting an inspection and you believe they may want to interview your employees as part of that inspection, you should consult your lawyer about any notes or reports your lawyer will need for you to gather and prepare. Any notes or reports that your attorney directs you to prepare will be covered by the work-product and attorney-client privileges. Any notes or reports that are created outside of the direction of your lawyer may be subject to production to OSHA.

Employee Interviews

If the inspector wants to interview your employees, you should advise your employees of their rights and give them tips for talking with the OSHA inspector. Those rights and tips include:

• Employees have the right to:

• Refuse the interview. (OSHA may proceed to get a subpoena to compel the interview).
• Request a manager or their own personal lawyer be present during the interview. The interview should be rescheduled to accommodate this request.
• End the interview at any time.
• Request signed or written statements which are given to the inspector.

• Tips - Employees should:

• Tell the truth.
• Answer basic facts. (Who, What, When, and Where)
• Not speculate or guess. You can use phrases like, “We are still investigating."

If time permits prior to such interviews, it is also recommended that you review these tips with your employees and ask them (without influencing their answers) about what they know, heard, and saw prior, during and after the accident.
It is also advisable to interview your employees after OSHA speaks with them, and take notes on the questions asked, the responses to those questions, and whether the employee signed any written statements.

Records Review and Accident Reports

While on the jobsite, the inspector may ask to see certain records such as the OSHA 300 logs, safety manuals, first aid / medical records, training records, safety meeting minutes, inspection records, and accident reports. In order to keep track of what has been requested and provided to the inspector, make a list of all requested documents and keep a transmittal log of how various documents were transmitted.

Please note that accident reports should be reviewed by your attorney prior to production to the inspector. Accident reports should be limited to the facts and should not contain any speculative theories or guesses as to why an accident occurred. If your attorney has directed the preparation of the accident report, that report is privileged and should not be produced to the inspector.

Closing Conference
After the walk-around and employee interviews have concluded, the OSHA inspector will hold a Closing Conference. Your safety director and any management personnel you desire should attend this meeting and take notes on what was conveyed. During this meeting, the inspector may provide a preliminary indication of potential citations that may be issued to your company.

Immediate Steps After Receipt of a Citation

If you receive a citation with penalties from OSHA you will need to quickly decide whether you should accept the citation and penalties or contest the citation, the penalty amounts, or both. Some of the reasons you may want to contest the citation include: (1) the fact that your company did not violate the regulation cited, (2) the multi-citation employer policy was improperly applied to your company (i.e., you are cited as an exposing employer when your own employees were not exposed to a hazard or you are cited as a creating employer when your company did not create the hazardous condition), (3) the penalties are unreasonably high, or (4) your company has a valid affirmative defense (i.e., employee misconduct defense, the citation is covered by the jurisdiction of another federal agency, you did not have fair notice that OSHA would interpret the regulation in the manner contained in the citation, or you are cited under the general duty clause and a specific standard applied).

If you want to contest the citation, a Notice of Contest must be filed within 15 business days after receipt of citation or else you will be deemed to have accepted the citations and penalties. The Notice needs to identify whether you are contesting specific citations, all citations, specific penalties, and/or all penalties. Please note that it is very important that you follow the regulations applicable to the jurisdiction that issued your company the citation.

When you receive a citation you will be given the option of scheduling an Informal Conference. You can use the Informal Conference to explain facts that the inspector misunderstood or did not previously have in an attempt to either eliminate or reduce the citations and penalties. Importantly, scheduling an Informal Conference does not extend the time you have to file a Notice of Contest. Therefore, you will want to schedule your Informal Conference early enough to allow you to file the Notice of Contest within 15 business days from the receipt of the citation.

Angela Stephens is a member of the Construction Law and Sustainability and Emerging Technologies Service Groups at Stites & Harbison, PLLC where she concentrates her practice in Construction Law. Ms. Stephens earned both her Civil Engineering and Law degrees from the University of Louisville. If you have further questions about managing an OSHA inspection, Ms. Stephens can be reached at [email protected] or 502.681.0388.