How-to guide: How to prepare for an Occupational Safety and Health Administration (OSHA) inspection (USA)

Introduction

This guide will assist in-house counsel, private practice lawyers, and workplace health and safety professionals with preparing for an inspection by the Occupational Safety and Health Administration (OSHA).

This guide includes the following:

Overview of OSHA and related laws
Preparing for an inspection
Follow-up to inspection

This guide can be read in conjunction with How-to guides: Overview of US employment law, How to draft an employment contract and How to draft the key provisions of an employee handbook and Checklist: Dealing with workplace injuries.

Section 1 – Overview of OSHA and related laws

OSHA is a federal organization within the Department of Labor that oversees administration of the Occupational Safety and Health Act of 1970 (OSH Act) (29 USC 651 et seq) in an effort to ensure safe workplaces for workers.

1.1 Occupational Safety and Health Act 1970

1.1.1 Coverage

Most private sector employees in US states and jurisdictions are governed by the OSH Act and within OSHA’s jurisdiction. Federal employees are also generally covered by the OSH Act. Employees of state and local governments are not covered, but may have protections similar to the OSH Act if their state jurisdiction has an OSHA-approved program. In all, OSHA estimates that 7 million work sites are within its jurisdiction.

1.1.2 Employer obligations

Under the OSH Act, employers must:

comply with specific occupational safety and health regulations; and
provide employees with ‘employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to [] employees.’ This is known as the ‘general duty’ clause. See, 29 USC section 654(a).

Health and safety standards are enforced by OSHA. Those standards may be broken down into the following major categories:

Employers may be subject to regulations from multiple categories, depending on the work site and the industries in which the employer does business.

Section 2 – Preparing for an inspection

2.1 Ongoing best practices

Since OSHA penalties can be financially and reputationally burdensome for businesses, taking a proactive approach to avoid violation is imperative. Employers should regularly inspect for OSHA violations and keep OSHA-required records as well as documenting efforts to maintain a safe workplace. In many cases, OSHA considers an employer’s ‘good faith’ compliance efforts when exercising its discretion in assessing penalties.

2.1.1 Self-inspections

OSHA laws and regulations do not require self-inspections; however, such inspections are advisable. They help identify and remedy hazards before an OSHA inspection, assist employers to avoid OSHA penalties, and ensure a safe workplace.

Employers should conduct self-inspections at a frequency that aligns with the level of risk and rate of work-site change inherent in their business. The higher the risk and more dynamic the work site, the more often self-inspections should be conducted. Construction sites, for example, are high risk and frequently changing, therefore OSHA recommends that they are inspected weekly.

Employers should develop processes and procedures for conducting self-inspections and addressing findings. These should include, at a minimum:

designation of inspection staff;
an inspection checklist;
inspection report forms;
inspection result review;
a process for appointing responsibility for corrective measures;
follow-up to ensure remediation has occurred;
maintaining records of all inspections and corrective actions for a defined period; and
involvement of employee representatives or a safety committee in the inspection process.

OSHA’s Small Business Safety and Health Handbook provides guidelines and resources to help smaller businesses build their self-inspection program, including sample self-inspection checklists.

2.1.2 Documentation

In addition to self-inspections, ensuring compliance with OSHA’s recordkeeping and reporting requirements is essential to ensure that any inspections by OSHA go smoothly. Exact requirements will depend on the employer’s size and type. Common requirements include:

displaying OSHA’s Job Safety and Health Poster;
keeping records of fatalities, injuries, and illnesses;
completing required OSHA reporting and recordkeeping forms including OSHA forms 300, 300A, and 301;
reporting deaths and serious injuries to OSHA within 8 hours (for deaths) or 24 hours (for serious injuries);
posting the OSHA 300A (Summary of Work-Related Injuries and Illnesses) from February 1 to April 30 of the following year; and
maintaining all required records for a minimum of five years.

Employers should also keep records of self-inspections and training (see OSHA webpage: OSHA Outreach Training) as these can help the employer ensure that any issues are remedied as well as providing evidence of good faith compliance efforts. OSHA has provided Recommended Practices for Safety and Health Programs that help identify and assess hazards.

2.2 Respond to OSHA inquiries

When OSHA learns of a potential safety or health hazard at a workplace, it frequently begins its investigation off-site through phone calls and fax correspondence with the employer. If the employer can satisfy OSHA that it has identified and remedied, or created a plan to remedy, the issues, OSHA may not escalate the issue into an on-site inspection. Since on-site inspections are time-consuming and can easily expand in scope, it is best to avoid them when possible.

2.3 When on-site inspections are conducted

OSHA conducts inspections in the following situations, listed in order of priority.

2.3.1 Report of imminent danger

OSHA’s top inspection priority is to respond to reports of work-site hazards that pose an imminent danger of death or serious bodily injury. For example, a construction site that does not comply with OSHA’s trench safety requirements would likely pose an imminent danger. OSHA sends inspectors out to these imminent danger situations as soon as they can, on the same day as it is given notice, if possible.

2.3.2 After a severe incident

Employers are required to report severe employee illnesses and injuries to OSHA after the employer learns that they are work-related. Fatalities must be reported within 8 hours. In-patient hospitalization, amputations, and eye loss must be reported within 24 hours. Inspections following these types of severe incidents are common, and more likely if the employer has a history of OSHA citations.

2.3.3 Worker complaints

Employees, or their union representative, have the right to file confidential OSHA complaints and request an inspection if they believe there is a serious hazard, or that the employer is not compliant with OSHA regulations. Workers can specifically request an on-site inspection. If the request meets the requirements of 29 CFR section 1903.11(a) and OSHA determines that there are reasonable grounds to believe an alleged violation exists, it must perform an inspection. Employee complaints are a common trigger of OSHA inspections.

2.3.4 Agency referrals

OSHA may conduct an inspection of a workplace after receiving a referral from a local, state, or federal governmental agency regarding hazards at a work site. These referrals are often made by regulatory bodies such as the Environmental Protection Agency (EPA), state health departments, or other agencies that encounter safety violations during their own regulatory activities. OSHA generally gives high priority to agency referrals, particularly if the referral shows that there is an imminent danger of harm, or if there may be a serious safety violation. When OSHA receives a referral, it reviews the information provided and determines the severity of the hazard or condition. OSHA may choose to conduct a full, on-site inspection, or it may perform a limited-scope investigation that focuses specifically on the alleged hazard. OSHA may also make an off-site inquiry, depending on the nature and credibility of the report.

2.3.5 Targeted inspections

OSHA periodically conducts inspections of high-risk industries and workplaces even if it has not received a complaint or referral. Industries and workplaces may be deemed high risk based on different mechanisms of categorization including inspection, injury, and illness data; peer-reviewed literature; analysis of prior inspection findings; and other available information. Typically, the work sites are randomly selected from a pool of those identified as high risk under different OSHA inspection programs.

2.3.6 Follow-up inspections

OSHA also conducts inspections to follow up on an employer’s progress towards fixing hazards it was previously cited for. These are the lowest level on OSHA’s inspection hierarchy but still take place. Employers should not be complacent because failure to remedy issues previously cited could result in additional fines.

2.4 The inspection

2.4.1 Inspections are usually unscheduled

Most OSHA inspections are unscheduled. OSHA regulations prohibit advance notice of inspections except:

in cases of apparent imminent danger, with the aim of management fixing the issue immediately;
when the inspection must take place after regular business hours or when special preparations are necessary;
if management and worker representatives are not likely to be on-site unless they have advance notice; and
in other circumstances where the OSHA area director thinks a more complete inspection would result. See, 29 CFR section 1903.6.

2.4.2 Inspection warrant

OSHA typically does not obtain a warrant in advance of an inspection. Instead, one or more OSHA inspectors, called compliance safety and health officers (referred to in this guide as OSHA officers), arrive at the work site to conduct an inspection. Employers have a Fourth Amendment right to require OSHA to obtain an administrative warrant before proceeding with the inspections; however, it is usually advisable to submit voluntarily to the inspection and this is common practice for most employers.

To obtain an administrative warrant OSHA must prove that there is probable cause that a violation will be found. This is a low threshold, as most of OSHA’s reasons for conducting an inspection (eg, complaint or recent fatality) constitute probable cause. OSHA’s requests for warrants are generally granted. Note that objecting to a warrant may look like a red flag to OSHA and lead to a more thorough inspection once a warrant is obtained.

Employers wishing to limit the scope of the inspection should consider alternatives to objecting to a warrant such as negotiating inspection limits and requesting a delay of the inspection until legal counsel or safety experts can join.

2.4.3 Opening conference

The OSHA opening conference is a meeting between the OSHA officer, representatives of the employer, and representatives of employees. Employer representatives are designated by the employer, and employees have the right to designate their own representatives. If requested, OSHA will conduct two separate conferences: one with employer representatives and one with employee representatives. Joint opening conferences are encouraged.

At the conference, OSHA will explain the reason for the inspection, the scope of the inspection, and the procedures for the walk-around inspection, including the employees’ right to have a representative attend and the OSHA officer’s right to conduct employee interviews.

The OSHA officers will present an initial request for documents to the employer. They will also typically review the employer’s OSHA-related records such as the injury and illness recordkeeping forms (OSHA forms 300, 300A, 301) at the opening conference, though sometimes this occurs later in the inspection process.

2.4.4 Walk around

The walk-around part of the inspection occurs after the opening conference and involves a physical inspection of the workplace conducted by the OSHA officer, who walks around the work site, or the parts of the work site that are covered by the inspection. Subject to limited exceptions, the employer and employees may each appoint a representative to accompany the OSHA officer during the walk-around inspection. This representative may be another employee of the employer, or it could be a third party, providing the employee can demonstrate that the third party is reasonably necessary to help the inspection. Examples of ‘reasonably necessary’ include the third party having relevant knowledge, information about the worksite, or being able to speak a necessary language.

During the walk around, the OSHA officer will look for the safety and health hazards that led to the inspection. The OSHA officer may also inspect the entire work site, unless the scope of the inspection was limited, and look for additional violations during the walk around. If, while conducting the inspection within the permitted area, the OSHA officer sees a potential hazard in plain view, they may investigate the hazard even if it is beyond the scope of the specific reason for the inspection.

During the course of the inspection, the OSHA officer may conduct employee interviews, conduct tests, look for mandatory OSHA postings, and review records. As soon as they are documented, the OSHA officer should bring ‘apparent violations’ that can be corrected immediately to the attention of the representatives. OSHA officers must cite these violations; however, prompt remediation is deemed a sign of the employer’s good faith.

2.4.5 Employee interviews

Employee interviews are generally a key part of the inspection. Employees have the right to accept or decline a request to be interviewed. Non-supervisory employees also have the right to a private interview with the OSHA officer, without the employer’s representative present. Supervisory employees may bind the company with their answer so they should be trained regarding their role and best practices for OSHA interviews well in advance of any potential inspection. Supervisory employees should also be reminded of the need to answer questions truthfully.

Employers should be cautious when speaking with employees regarding their rights to participate in an inspection so as not to give a basis for a potential claim of retaliation or discrimination by an employee who participates in interviews. All types of employees should be advised to speak honestly and truthfully.

2.4.6 Closing conference

The OSHA closing conference is a meeting between the OSHA officer and the employer and employee representatives following the walk around. If requested, OSHA will conduct separate closing conferences with the employer representatives and employee representatives.

During the closing conference, the OSHA officer will inform the representatives about the apparent health or safety violations, the employer’s options, and OSHA’s consultative services. The OSHA officer will also advise the representatives about the employee’s workplace safety rights. The employer may bring any additional information regarding workplace safety to the OSHA officer’s attention.

If certain information, such as results from testing, is not available during the closing conference, a second closing conference may be held.

2.4.7 Citations

Citations may be issued for violations of specific OSHA standards or for violation of OSHA’s general duty clause. The citations set forth the alleged violations, the proposed penalty, the recommended actions to abate the issue, and the deadline for fixing the violation.

Citations must generally be issued within six months of the violation. Only employers may be cited. Employees cannot be cited for violations; however, employee representatives must be sent a copy of all citations. Once cited, employers must post the OSHA citation prominently, at or near each place a violation referred to in the citation occurred for three days or until the violation is remedied.

Violations are categorized by severity level as:

serious;
other-than-serious;
de minimis;
failure to abate; and
repeated.

The possible penalties depend on a variety of factors including the severity of violation, the number of employees and the employer’s good faith. For additional information, view the current OSHA maximum penalties. In addition to the citation, for high penalties, OSHA may also issue a press release regarding the negative enforcement.

Employers may choose to accept and remedy the violations, contest the violations, or participate in an informal conference. An informal conference is optional but provides an opportunity to try to reach a settlement agreement with OSHA for resolving the issues and possibly reducing the proposed penalties. An employer who intends to contest an OSHA citation must request an informal conference within 15 working days of receiving the citation.

Annually, OSHA provides a list of the most commonly cited standards following an inspection (see OSHA webpage: Top 10 Most Frequently Cited Standards). Construction standards violations regularly make up a significant portion of the list.

Section 3 – Follow-up to investigation

3.1 Violations identified

3.1.1 Correct violations

Following an OSHA inspection, the employer’s number one priority should be prompt and effective remediation and abatement of any violations identified during or after the walk around (1903.19 - Abatement verification). As noted above, if a hazard can be remedied immediately, it should be. Work to remedy other hazards should begin as soon as the employer becomes aware of them.

Keep records of remedial actions. If the action was taken in response to a citation, the employer must submit an abatement certification that confirms the abatement has been complied with to the OSHA area director for each violation within 10 calendar days after the date set for abatement of the violation.

Employers found in violation of OSHA standards face significant civil and potentially criminal liability, with fines varying drastically depending on the severity and nature of the infraction. For ‘Other-than-serious’ and ’Serious’ violations, employers can be fined up to $16,550 per citation, while ‘Willful’ or ‘Repeat’ violations carry much steeper penalties, reaching up to $165,514 per citation. Furthermore, failing to abate an identified hazard by the deadline fixed for abatement can result in fines of up to $16,550 per day beyond the deadline that the hazard is not abated. Criminal penalties are also possible in cases involving a willful violation that results in a death. Criminal referrals are made to the US Department of Justice (DOJ) (see OSHA webpage: OSHA Penalties).

3.1.2 Additional remedial steps

For workers’ safety and with the aim of avoiding future OSHA fines, employers should take additional remedial measures to ensure that there is no recurrence.

The best starting point is to analyze how the incident or violation occurred and develop corrective measures, such as revised policies and procedures and periodic employer inspections, to ensure there is no recurrence.

A critical component of remediation following an OSHA inspection is communication with employees regarding the violations and what corrective measures – including compulsory employee training – the employer will implement. Updated policies alone are not enough to constitute remediation. All relevant personnel, particularly those who work in or near the affected area, must show a full understanding of the risks and of the new procedures designed to mitigate them. Employee training should reinforce the importance of safety protocols and clarify how employees can contribute to maintaining a hazard-free workplace. Such a proactive approach will not only help prevent future incidents, but will also demonstrate a genuine commitment to safety, which is viewed favorably by OSHA, and which also enhances overall workplace safety culture.

3.2 Self-inspection

3.2.1 Periodic inspection

Periodic self-inspections should be continued after an OSHA inspection. The self-inspections should always verify that any hazards identified by OSHA inspectors remain corrected. They should also look for other hazards to avoid future OSHA inspections and penalties. OSHA provides resources for employers regarding hazard identification (see OSHA guidance: Hazard Identification).

Additional resources:

US Department of Labor, Occupational Safety and Health Administration, Abatement: Small Entity Compliance Guide for OSHA’s Abatement Verification Regulation
US Department of Labor, Occupational Safety and Health Administration, Employer Rights and Responsibilities Following a Federal OSHA Inspection
US Department of Labor, Occupational Safety and Health Administration, General Industry Digest
US Department of Labor, Occupational Safety and Health Administration, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace