Travis Vance of Fisher & Phillips LLP discusses the changes in OSHA enforcement made in 2015 in his article, ' Is OSHA Improperly Expanding the Scope of its Inspections?'. Vance's article refers to a different industry but his points fit well within the construction industry too.
In part, Vances says there is room to question OSHA's directive that all complaint-based inspections should be expanded into a comprehensive review, or a “wall-to-wall” inspection.
With that in mind, Vance offers these important reminders on how to work with OSHA:
1.Do Not Consent to the Improper Expansion of an Inspection. Regardless of the reason OSHA appears at your door, if you consent to the inspection without limiting the review to the stated-reason OSHA is there (e.g., hazard alleged in a complaint), most arguments relating to the scope of the inspection are lost. You may have consented to an expanded search of your business. Consent to expansion can also occur later in the inspection, if you voluntarily offer information outside the agreed-upon scope.
2.Contact your Corporate or Outside Counsel. Knowing your rights regarding OSHA inspections and their proper scope is important. Call your in-house or corporate counsel. Make sure all available defenses are known and, if appropriate, raised prior to allowing the inspection. This should occur prior to the end of the opening conference.
3.Keep Your Other Facilities Informed. If OSHA initiates an inspection at one of your facilities, make sure you notify all other locations. Any hazards found at one facility may form the basis of a repeat, or even worse, a willful violation if the same hazard is found at a different location.
4.Stay Cordial and Professional. Remember that employers and OSHA are on the same page from a mission standpoint. They want to keep employees safe. Being abrasive or unprofessional is not the demeanor that will help accomplish this goal. When asking OSHA for clarification on issues relating to its inspection, including the scope, remain cordial throughout this process.
Note: Mr Vance's opinions are his own and should not be considered as legal counsel.