Published October, 2002
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Always Be Prepared Anticipating and preparing for a visit from OSHA can help prevent disaster. Knowing what to expect is crucial when inspectors knock at the door. By Dave Wolkowitz ONE LADY STARTED CRYING when I walked in the door,” said former OSHA (Occupational Safety and Health Administration) inspector Chris Mancillas. Most likely she wasn’t shedding tears of joy. Mancillas says many managers of industrial and manufacturing facilities have an unfortunate fear of OSHA, often casting their relationships with OSHA in an adversarial light. However, such fears aren’t always warranted — or productive. Now a consultant with the risk-management firm McCart Group, Mancillas conducted more than 250 inspections of industrial and manufacturing facilities during his five-year tenure with OSHA. He says businesses’ antagonistic attitudes towards OSHA could backfire by blinding them to the learning opportunities presented by OSHA inspections, and could result in increased severity of fines. “The places I remember most were the ones that understood I was there to help them,” Mancillas says. “Those were the inspections that went smoothly. Some of the managers were proud to show me everything they were doing to promote safety.” By understanding how OSHA works and ways to prepare for an OSHA investigation, businesses can limit the degree of trauma experienced when the unexpected happens. Why They Come OSHA can show up to inspect a facility for a variety of reasons. Employee complaints to OSHA can prompt an inspection, and, by law, OSHA is required to conduct an inspection when three or more employees have been hospitalized due to the same accident. Businesses might even be targeted when neither a complaint nor hospitalization is involved — such as when OSHA runs a computerized analysis that considers such factors as a business’s OSHA complaint history and its industry’s general safety risk. For example, a business with many OSHA complaints in a dangerous industry is at relatively high risk for an OSHA inspection not directly related to an incident. But those aren’t the only reasons OSHA might pay a visit. For some plant managers, the term “stop the presses” can take on a whole new meaning. “If something severe enough happens in the work environment that it gets media attention, in all likelihood OSHA will conduct an investigation,” says Eric Berezin, an attorney and partner with the law firm Powell, Goldstein, Frazier, and Murphy. OSHA routinely conducts inspections in response to media coverage in order to avoid anti-OSHA backlash from the public, according to Mancillas. It’s conceivable that a business could be faced with an OSHA inspection resulting from an incident that would not ordinarily have inspired an OSHA visit had it not been for the media coverage. Knock, Knock. . . It’s OSHA When OSHA inspectors arrive, some facility managers might be tempted to turn off the lights and act like nobody is home. Since that is not an option, companies should have a plan of action already established — impromptu handling of surprise inspections is a recipe for disaster. Mancillas says that only half of the businesses he visited as an OSHA inspector seemed prepared for the experience. Marc Jacobs, an attorney and member of the law firm D’Ancona & Pflaum, notes that small to midsize companies are likely to pay less attention to OSHA than larger companies that have safety departments assigned to handling such issues, and he stresses the importance of having a protocol to follow when visits from OSHA do occur. “Front-desk employees should have procedures in place to follow whenever someone from the government comes calling,” says Jacobs. “The receptionist should have a prioritized list of three people to be contacted and should notify legal counsel and safety personnel.” Though OSHA is not out to destroy any business, managers do need to be aware of their rights and know what to do when OSHA visits. For instance, OSHA inspectors might be required to take pictures or video during an inspection, possibly posing a threat to trade secrets once OSHA’s investigative files become available under a Freedom of Information request. Berezin recommends working with OSHA inspectors to mark material “confidential” so OSHA can separate it from information that will become available to the public. Mancillas adds that he often worked with companies to collect evidence in a manner that would not expose trade secrets. For instance, he might have taken pictures from angles that hid proprietary information or described situations in writing if company representatives were extremely adamant about the confidentiality of trade secrets. Berezin advises companies to be aware of the scope of an OSHA investigation as well. For instance, managers should know if OSHA is conducting a fairly limited investigation of injuries relating to one machine, or if inspectors are there to conduct a wall-to-wall investigation based upon pages of wide-ranging complaints from employees. Managers should also be aware that even when conducting an initially limited investigation, OSHA inspectors can act on anything they see in plain sight — even if that wasn’t the original intent of their visit. “The most important thing to do at the front end is to get somebody from the company to meet with OSHA to determine [the] scope of the investigation. It can have a large impact on the possible outcome,” Berezin says. “Companies need to be cautious if they find out it is a criminal investigation. OSHA can make referrals to the U.S. Attorney’s office or to the local prosecutor.” Can I See Your Warrant, Please? While it’s true that OSHA can only enter a facility with consent or a warrant, the experts agree that forcing OSHA to get a warrant as a prerequisite to an inspection is usually counterproductive. The same goes for requiring subpoenas for conducting personal interviews or the collection of information such as accident logs. While demanding the legal permission slips might seem like a slick stall tactic, it could make the inevitable more unpleasant. Mancillas encourages managers to think about inspections from an OSHA inspector’s point of view. “The inspector will have to go back to the office and fill out paperwork for a whole day. He’ll talk to other inspectors and might ask them to come along in anticipation of trouble,” he says. “Then the plant managers will have to deal with two or three sets of eyes instead of just one.” While attorneys Jacobs and Berezin agree with Mancillas that OSHA should generally be admitted to facilities without warrants, they note the importance of weighing the benefits against the risks of requiring the paperwork. For instance, if major trade secrets could be exposed during the investigation, requiring warrants might be necessary in order to give the company time to assemble its legal watchdogs to ensure that OSHA respects the confidentiality of the information it gathers. Mancillas says that OSHA is aware of certain companies that always require warrants — when inspectors show up at those places they’ll have warrants in hand. Beware of Geography As if OSHA regulations weren’t complicated enough, businesses must realize that federal OSHA regulations can take a back seat to stricter, state-specific OSHA regulations. The problem of state-specific requirements can become more apparent when a company operates facilities in a state with requirements that are stricter than those of its home state. “California has implemented tougher statewide OSHA rules than Georgia, potentially creating some confusion for Georgia-based companies that operate facilities in both states,” Mancillas says. This also leads to the issue of being forced to fix a problem in one state but not in another. Such scenarios can create havoc by influencing OSHA to find that a company has willfully violated OSHA regulations — a very serious offense. For instance, if OSHA learns that California’s OSHA regulations lead to the correction of a problem in that state, and the same conditions led to an injury in another state, OSHA knows that the company was aware of a dangerous situation but did not fix it. Luckily for companies, OSHA is wary of handing down willful violations because it knows doing so could spawn a legal battle as companies seek to decrease the severity of their violations through some type of compromise. Getting Help Jacobs says that if a company gets a complain from OSHA, it should be mindful of the severity of possible consequences. “It’s a legal issue like any other legal issue where you need to go to an attorney who specializes in the area. There have been safety violations that were so egregious that the government prosecuted under claims of murder and attempted murder.” While most OSHA matters won’t be so serious as to involve criminal charges stemming from the loss of life, Jacobs’ point underscores his belief that OSHA inspections can open up a can of worms. “OSHA issues will touch on a variety of other areas, such as dealing with unions and other employee-relation issues. The employees will want to know if the company is taking action, or just talking about the problem,” Jacobs says. “Working with a law firm that has a good employment-law practice is very important.” For example, Jacobs makes sure that clients are aware of OSHA’s statutory prohibition of retaliating against employees who file complaints with OSHA or provide OSHA with information during an investigation. Jacobs thinks companies can counteract the inclination that might inspire supervisors to seek revenge on employees who they believe ratted them out to OSHA. Berezin wants his clients to realize that OSHA-related problems can compel companies to deal with multiple external groups. “Sometimes you run into environmental issues as a result of OSHA investigations, such as a case where something blew up and released gas into the atmosphere,” he says. “You might have the EPA coming in right next to an OSHA investigator, and the insurance adjuster after that — it requires juggling.” Handling a problem properly is necessary to avoid a domino effect, but companies should also try to prevent problems. Engaging a safety consultant or industrial hygienist might be a good idea — particularly if a company does not employ full-time safety personnel. Safety and health consultants should be able to conduct safety audits, create safety-action plans, and create appropriate safety materials for workers. Additionally, they should be able to give OSHA-compliance guidance. For instance, consultants might help companies with OSHA’s record-keeping requirements. Mancillas notes that OSHA-mandated records frequently are not reflective of the accidents or illnesses that occurred. OSHA inspectors will review accident logs and notice entries that don’t seem accurate. For example, a long-term absence from work might be recorded as a result of a relatively minor injury. By keeping proper records, companies can avoid the problems resulting from an inspector ‘s realization that records are inaccurate after talking to the employees involved in recorded incidents. Creating and implementing a solid safety plan can also help companies demonstrate goodwill that can influence OSHA. If the unfortunate happens and OSHA levies a fine, inspectors have discretion to discount the standard fine by a factor that corresponds to the amount of goodwill effort a company has demonstrated in creating a safe environment. Though subjective, this system helps reward companies that make genuine efforts to promote safety. One key ingredient in creating goodwill with OSHA is demonstrating proper employee training and communication. Encouraging employee participation in the safety-building process can help prevent problems and create a situation in which employees will consult internal safety personnel before complaining to OSHA. But when communicating with employees, it’s important to make sure that they understand safety information. According to Mancillas, OSHA is increasing efforts aimed at making sure non–English-speaking employees can access and understand safety materials. When considering which consultants to hire, experience in a particular industry can be valuable. Additionally, certifications help identify which consultants have the training needed to conduct proper safety audits. Look for certifications from the American Board of Industrial Hygiene (ABIH) and the Board of Certified Safety Professionals (BCSP). What’s That Under the Rug? If a company finds a safety or health problem as a result of doing a safety audit, or if it otherwise records awareness of a problem, the danger needs to be fixed. Sweeping problems under the rug can invite the full wrath of OSHA and expose the company to severe liability. When Mancillas left OSHA and began consulting companies on OSHA-related matters, he was surprised to find that many companies hired him without being ready to act on the problems he discovered. That attitude doesn’t sit well with OSHA inspectors. During an investigation, OSHA inspectors request any safety audits that the company has conducted to determine if the company was aware of problems without taking corrective action. Companies that get caught can be fined. Berezin warns that safety audits can be double-edged swords. “If you do one and don’t fix the problems, it could be your worse nightmare.”
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