OSHA INSPECTION PROCESS - Part 3            (Archived Content: 2002)

The Inspection

THE INSPECTION - Once an OSHA inspector has been permitted to enter the workplace, either voluntarily or by means of a warrant, the employer should carefully ensure that the proper administrative procedures are followed and that the employer's rights under the OSH Act are preserved.

The employer should be aware that any statement made on records provided to the OSHA inspector may be introduced in a subsequent enforcement proceeding. Accordingly, the employer should supply only that information which is required to be maintained or provided under the OSH Act or OSHA regulations.

OPENING CONFERENCE - An OSHA inspector must hold an opening conference with the employer and, if appropriate, with employee representatives. After presenting credentials, the inspector is required to state the basis and scope of the inspection and to supply the employer with a copy of any warrant or employee complaint, if applicable. The employer should carefully review these documents in order to ensure that the inspection remains within the limits of the inspector's authority.

The inspector may request other information concerning, for example, the nature of the employer's operations, or seek to examine safety and health records maintained by the employer. An inspector should provide only those records requested by the inspector and required to be maintained under the OSH Act. Employee health records should not be disclosed unless adequate safeguards to protect the privacy of the employee are provided.

Employers should also be sure to inform the inspector of all areas that contain trade secret information. Any information obtained by OSHA from an inspection of those designated areas will be labeled as "confidential - trade secret" so that unauthorized disclosure of the information will be prevented. Following an inspection, an employer should contact OSHA to ensure that the trade secret information is maintained in a confidential file. Although disclosure of trade secret information generally will be limited to OSHA employees, the information may, if deemed relevant, have to be produced in judicial or administrative proceedings.

WALK-THROUGH - Both the employer and employee representatives have "walk-around" rights to accompany the inspector during an inspection, although employees need not be paid by the employer for this time. If the employer is not permitted to accompany the inspector, any citations resulting from the inspection may be overturned.

During the inspection, an employer should perform the same activities undertaken by the inspector, for example conducting both air and personal monitoring, taking photographs and taking notes of the types of measuring instruments and procedures utilized by the inspector. This information could become useful in a subsequent enforcement proceeding, both as evidence at a hearing or in a settlement negotiation. If the inspection is conducted pursuant to a warrant, the warrant should indicate the investigative techniques to be undertaken by the inspector. Note that an employer is not obligated to demonstrate the operation of any machinery or processes.

An inspector may interview employees to the extent that such discussions do not interfere with the performance of work. These interviews are usually held without the presence of the employer, but the employer may insist they not be conducted during employees' working time or on company property the inspector, moreover, need not reveal the identity of the employee interviewed.

CLOSING CONFERENCE - After the inspection, the inspector will conduct a closing conference, the inspector must advise the employer of any violations observed and explain the regulations allegedly violated. In addition, the inspector must describe abatement requirements, including suggested methods of abatement and time periods within which to accomplish abatement of all alleged violations. The employer should not make any statements during the closing conference that could be considered an admission of the violations at issue or could be construed as a limitation of the employer's right to contest the citation. Admissions of liability may be used against the employer in later enforcement proceedings.