december2021 - 22

THE LABOR LAW ADVISOR
Preparing for an OSHA Inspection
PRESIDENT BIDEN PROMISED to aggressively enforce all workplace laws during his
campaign for the presidency. Biden's direction to the Occupational Safety and Health
Administration (OSHA) to double its number of inspectors and increase workplace
inspections is a significant indication of the administration's commitment to this promise.
There has been little sign of widespread
OSHA activity thus far, likely
because the new OSHA head, Doug
Parker, was only confirmed in November.
Another reason for the current
lack of increased enforcement is that
the DOL/OSHA staff has been limited
due to COVID restrictions. Most staff
are not scheduled to return in person
until January 2022. However, with the
controversy surrounding the COVID-19
Emergency Temporary Standard (ETS)
requiring employers with 100 or more
employees to mandate vaccination
among their employees, workplaces are
likely to soon face increased scrutiny
from OSHA.
Whether an OSHA inspection
of your workplace is triggered by an
injury, a complaint, a programmed
wall-to-wall inspection, or the new
COVID-19 ETS, being prepared will
limit potential liability and potential
citations. Reviewing and updating
required, written safety plan(s) for your
facility, including COVID-19 measures,
is a very basic first step. Developing a
protocol for responding to a potential
OSHA inspection is an important next
step. Typically, OSHA will contact an
employer and attempt to schedule an
on-site inspection (but unannounced
inspections are not unheard of).
After OSHA notifies an employer to
schedule an inspection, the employer
should undertake a preparatory,
internal inspection and confirm that
any identified or outstanding problems
are corrected as soon as possible. An
employer must also confirm that
the OSHA 300 logs are current, and
any Safety Committee minutes are
prepared for review as well. If the
inspection is in response to a workplace
accident, the incident report and
related materials (equipment manuals,
schematics, lockout/tagout protocols,
etc.) should be ready to go.
WARRANT OR WARRANTLESS
INSPECTION
The Supreme Court has held that an
employer can force OSHA to obtain a
warrant before entering its premises
for an inspection. Whether to insist
upon a warrant is a significant decision
with serious pros and cons. Among the
" pros " is potentially limiting the scope
of the inspection and even potential
dismissal of citations unrelated to the
court-issued warrant. A frequently
cited " con " is aggravating the inspector,
who will make sure to maximize
the number of violations. While such
conduct is contrary to OSHA's inspection
procedures, human nature may
prevail. Absent unique circumstances,
employers generally seek to cooperate
in completing the inspection and rarely
insist upon a warrant. You and the
oompliance officer share the same goal
- a safe workplace for your employees.
CONTROLLING THE
WALKAROUND
After reviewing your OSHA 300 logs,
the compliance officer normally tours
the facility. An employer-representative
is generally requested to participate. If
your operation is unionized, a union
representative may also participate.
Compliance officers can ask questions
of employees and supervisors/managers
during inspection. The employerrepresentative
should carefully note all
comments and questions during the
walk around. If the compliance officer
takes any photographs and/or videos,
22 DECEMBER 2021 ■ www.CPAPracticeAdvisor.com
the employer-representative should
take the same photographs and/or
video. He/she should also exercise as
much control as possible regarding
the scope of the inspection without
creating confrontation.
If the compliance officer notes
an alleged violation, it should be corrected,
if possible, while the inspection
continues. The employer-representative
should not acknowledge a potential
violation, but rather, just correct it.
Unless it is a scheduled wall-to-wall
inspection, the inspection should focus
on the equipment or area where the
incident occurred that prompted the
visit. Permitting the compliance officer
unrestricted access merely increases
the potential for finding violations and
should be prevented.
CONDUCTING
INTERVIEWS
Compliance officers have the right
to, and generally will, interview both
employees and management. These
interviews are normally done on the
employer's premises. Employers have
a right to be present and have their
attorney present at any supervisor or
management interview, but no right to
be present during employee interviews.
Employees are not obligated to participate
in interviews and the employer
can so inform them. Employers can
also inform employees they can refuse
to sign any statement prepared by the
compliance officer. While OSHA could
seek a subpoena to compel employee
participation, they generally do not
take that step in cases not involving
serious injury, death, or egregious
safety violations.
Managers and supervisors should
RICHARD D. ALANIZ
Senior Partner
Alaniz Schraeder Linker Faris Mayes, L.L.P.
ralaniz@alaniz-schraeder.com
be truthful, but not volunteer unrequested
information. They should
respond to questions as succinctly
as possible and request a copy of
any statement they are asked to
sign. Employers should also advise
employees interviewed to request a
copy of any statement they provide.
EFFECTIVE CLOSING
CONFERENCE
A Closing Conference typically concludes
the inspection process. The
compliance officer normally will reference
any standards that he/she feels
the employer violated, as well as possible
abatement measures that could
be taken. The employer-representative
should take the opportunity to obtain
as much information as possible,
including all possible violations that
may result from the inspection, as well
as the specific OSHA standards or CDC
guidance on COVID safety protocols
involved. If there are any unique
problems with abatement, those should
also be thoroughly discussed, including
any efforts already taken to abate the
condition and eliminate employee
exposure to a hazard.
OSHA inspections do not have to be
the distressing experience envisioned
by most employers. Proper planning
and preparation, as well as reasonable
efforts to control the scope of
the inspection as it is occurring,
will greatly increase the employer's
opportunity to limit or even avoid
costly OSHA citations. ■

http://www.CPAPracticeAdvisor.com

december2021

Table of Contents for the Digital Edition of december2021