In 2021, OSHA carried out 24,333 inspections. 13,749 were unprogrammed, or unannounced inspections that employers aren’t anticipating.1 OSHA inspections—and the citations and financial penalties that follow— are on most business owners’ nightmare list.
Jennifer Vold, Esq., SPHR, is an attorney with Employers Council who specializes in safety issues, including workers compensation and OSHA regulations. She came to Employers Council 16 years ago because she wanted to help organizations mitigate the stress of safety-related disputes.
Jennifer and the Legal Services team offer both consultation on OSHA-related questions (available to members at the Consulting and Enterprise Membership levels) and legal representation services to businesses in need of counsel (pay-as-you-go pricing with discounts for members). Whether you are trying to stay ahead of safety violations or responding to an unfolding OSHA interaction, Jennifer’s team is here to help.
The difference between an OSHA complaint and OSHA citation
Some of Jennifer’s work is helping employers respond to OSHA complaint letters, which don’t come with associated financial penalties.
“If there’s something that OSHA doesn’t feel poses an immediate hazard or threat to employees, those are the types of things that will come through in a complaint letter,” explained Jennifer. “But if there’s a significant danger, they are going to show up right at an employer’s door.”
OSHA complaint letters are less threatening than inspections and citations, but the stakes can raise quickly: Not responding to a complaint letter can trigger an unprogrammed inspection, so Jennifer urges employers to reply within the prescribed five business days.
Need help responding to an OSHA complaint? Get in touch with our legal services team.
How to prepare for an OSHA inspection
Unless an inspection is triggered by an organization’s self-reported injury and illness data, most employers won’t know an inspection is coming. (Employers reporting statistically high rates will likely get a written notice from OSHA and be put on a programmed inspection list.)
“For those non-programmed inspections that are based on a complaint or referral, the employer won’t have any notice,” Jennifer said. “It’s an in-person inspection with the OSHA compliance officer just walking in and letting the employer know they are here to conduct an inspection.”
As we covered earlier, unprogrammed inspections can be the result of an ignored OSHA complaint letter. More commonly, they are triggered by a call from an employee, former employee, customer, competitor or member of the general public with a safety concern. Other agencies, like fire departments, can also refer a safety violation to OSHA.
Jennifer said that they usually hear from members after an inspection takes place, when they’ve received a citation with thousands or hundreds of thousands of dollars in proposed penalties attached. Ideally, Jennifer wants organizations to be thinking about possible inspections long before a compliance officer arrives. She advises employers to have an inspection plan in place, and the first part of that plan is prevention.
“First and foremost, you’re conducting a [safety] audit, understanding your hazards and putting a safety program in place, so you don’t have violations out there when OSHA shows up,” Jennifer said. Employers Council can consult on safety planning steps, whether you are developing a safety management program on your own, in collaboration with your workers compensation insurer, or hiring a certified safety professional.
Secondly, Jennifer encourages employers to know exactly how they will respond if OSHA appears for an unprogrammed visit. An inspection plan might include:
- Training any staff members OSHA will come into contact with during an inspection
- Identifying a point person or team (likely safety professionals or managers) who will communicate with OSHA and escort them during the inspection
- Identifying the conference room or area where the compliance officer will be escorted first
- Keeping your OSHA 300 log (record of injuries and illnesses in the facility) updated and ready for review
- Knowing what types of inspections might occur and what boundaries you have a right to draw
What to do during an OSHA inspection
Jennifer advises calling your counsel as soon as possible to help you walk through any questions and decisions. For example, employers always have a right to request a warrant, but doing so isn’t always advisable—OSHA could come back not only with a warrant but with more reinforcements and motivation to conduct a wider inspection than they otherwise would have.
Then put your inspection plan into play: Have your point person escort the compliance officer to the appointed area to review your OSHA 300 log. Join the compliance officer on their walk-around inspection.
“Be cooperative, but divulge as little information as possible,” Jennifer says. “Anything the employer, managers or supervisors say binds the employer.”
Businesses should assume that the compliance officer is recording everything, even if it doesn’t appear they actively are. The inspection point person should take notes, photographs and videos of the inspection—anything that might be helpful for the employer’s own records.
OSHA has the right to interview non-supervisory employees privately during an inspection. Interviews with supervising employees can be scheduled and can be attended by the employer’s attorney or representative.
The employer should have a closing conference at the end of the inspection to ask about the citations the officer is considering, what abatement measures could be taken for the issues the officer is raising, and what standards might be implicated. The goal is fact-finding: How much can you find out about the inspection and the officer’s concerns without giving too much of your own information away?
Afterward, the employer should review their own records and notes and keep them safely saved and organized. You can talk to employees to find out what happened during the investigation but not to discourage employees from communicating with OSHA or retaliate against those who may have. If there are any obvious safety fixes that should be made, make them!
Tips for responding to an OSHA citation
When the OSHA citation arrives, employers have 15 federal working days to respond. They have three options: pay the penalties in full, schedule an informal settlement conference, or contest the citation. Employers should have legal representation throughout this process so they understand the legal process and implications.
Jennifer most often recommends engaging in that informal conference, in which the employer and their counsel can discuss the citation with OSHA, ask questions, show documentation of abatement and raise defenses.
“At the end, OSHA is typically willing to engage in a reduction in either the penalty amount or the classification of the citation,” Jennifer said. “There’s definitely room for negotiation.”
Contesting the citation is less common, but may be a good strategy for some employers. “. It helps to consult with counsel [on contesting]. You really have to be calculated about the precedent, the defenses and our odds.”
After responding to the citation (whether paying outright, settling or contesting), employers should revise their inspection plan using what they’ve learned.
Repeat citations—including similar violations at different locations—generate larger penalties. Organizations should address those violations in their safety plans across all locations. Employers should also know that if they are inspected again within the next five years, OSHA may not be able to give them an administrative penalty reduction, depending on the results of the inspection. .
Organizations should do everything they can to avoid safety violations and OSHA inspections going forward, including consulting with Jennifer and the Employers Council Legal Services Team.
“I love working with employers before an investigation even begins to prepare,” Jennifer said. “ I’m in the business of prevention.” But if things go wrong, Jennifer and her team at Employers Council can help employers there too. “We’re there with you every step of the way.”
Looking for legal representation to guide you through an OSHA citation? Contact our Legal Services Team through our CONTACT FORM email@example.com.
- “Occupational Safety and Health Administration (OSHA) Enforcement,” osha.gov. Accessed 26 July 2022.