Back in March, we answered five frequently asked questions related to OSHA inspections. We received so much positive feedback from that post, and so many requests to address additional OSHA questions that we decided to launch a monthly series here on the OSHA Law Update blog with posts dedicated to your OSHA Frequently Asked Questions. For each of the posts in this OSHA FAQ Series, we have included both a text response and a video/webinar response with slides and audio.
In this post, OSHA FAQ #4, we address a question regarding establishing an OSHA Inspection Team, including what roles should be designated and how to prepare the team for an unexpected visit from OSHA.
QUESTION: To best prepare for an unannounced OSHA Inspection, my Company is assembling an “Inspection Team” to be ready to manage a visit from OSHA. What are the different roles that we should include on the Team, and what are the responsibilities for which we should train the various team members?
OSHA conducts approximately 95% of its “Discovery” during the inspection phase (not the subsequent Contest stage), and uses the Discovery it obtains during inspections to determine whether violations are present and can be supported in potential citations. Accordingly, it is critical for employers to be prepared to manage the flow of information to OSHA during an inspection.
Accordingly, one of the most important steps every employer should take to prepare for an OSHA Inspection, and to ensure the inspection process goes smoothly once an OSHA compliance safety and health officer (CSHO) does arrive, is to designate certain personnel to fill specific roles on an Inspection Team. This will help you respond quickly when OSHA starts an inspection, have better controls in place to manage the flow of information during the inspection, such as better:
- Control over the entire scope of the inspection;
- Organization and care in the document production process;
- Preparation and representation of employees and managers during inspection interviews;
- Ability to capture duplicate evidence; i.e., side-by-side photographs, samples, and other physical evidence, and a complete copy set of documents produced to OSHA; and
- Control over what parts of your facility the CSHO observes during his walkaround inspection.
To accomplish these goals, we recommend that you assign, in advance of any inspection, the following Inspection Team roles, and train the assigned team members in all of the related employers’, employees’, and OSHA’s rights, as well as inspection strategies, related to their assigned roles on the Inspection Team:
1. Principal Spokesperson.
- The spokesperson is the team leader and point person for OSHA during the inspection.
- It is the Principal Spokesperson to manage the overall inspection, from communicating decisions to OSHA about consenting to the inspection or demanding a warrant, to negotiating the scope of the inspection, and laying the ground rules for document production and interviews.
- This role is generally covered by your outside OSHA counsel, Corporate Safety Director, or another Senior Management representative. The inspection should not be permitted to begin until the Principal Spokesperson is on-site (see our earlier post regarding delaying the start of an OSHA inspection to await your inspection representative).
2. Document Coordinator.
- Managing the document production during the inspection is perhaps the most important role.
- The Document Coordinator should manage the entire document production process, including: (a) being designated as the sole authorized person to accept a document request (always in writing) from OSHA; (b) coordinating with company and third party representatives to gather responsive documents; (c) reviewing documents for responsiveness, and to determine whether they contain privileged or business confidential information; (d) processing the documents with Bates and Business Confidential labels; (e) preparing duplicate copies for the Company to keep; (f) producing the documents to OSHA; and (g) tracking the status of all document requests on a Document Control Log.
3. Interview Coordinator.
- Like the Document Coordinator, the Interview Coordinator is critical to managing the flow of information during an inspection.
- The Interview Coordinator should manage the entire interview process, including: (a) being designated as the sole authorized person to accept requests for interviews (preferably in writing) from OSHA; (b) coordinating with employees, supervisors, and the CSHO to schedule reasonable times (not on-the-spot, to minimize business disruption) and locations (not in operating areas) for the interviews; (c) work with the witnesses to prepare them for interviews (review their rights, interview tips, and substantive issues; e.g., refresh employees’ recollection about policies and training they have received); and (d) participate in participate in management interviews (and non-management employee interviews if requested and permitted) as the interview representative; (e) take careful interview notes; and (f) track the status of all interview requests on an Interview Log.
4. Walkaround Escort / Scribe.
- Escorts OSHA at all times throughout the inspection. The CSHO should never be left alone to roam around your facility, so the Escort should be attached at the CSHO’s hip.
- In addition to just being present wherever the CSHO goes, the Escort has responsibility to make sure the CSHO does not go anywhere he is not authorized to go. The Scope of the inspection will have been negotiated during the Opening Conference, and the Escort is responsible to ensure the CSHO sticks to the scope; i.e., if the inspection is based on a Complaint in the maintenance shop, and the scope of the inspection is understood to be limited to the maintenance shop, the Escort should make sure the CSHO only visits the maintenance shop. The Escort should be courtesy and professional, but also firm in sticking only to that scope.
- The Escort should also take detailed notes during the inspection. He should document all the places the CSHO goes, all the equipment and job tasks the CSHO stops to look at, any employees whom the CSHO stops to interview, and anything the CSHO says about the workplace conditions.
- While the Principal Spokesperson generally should accompany the CSHO during the walkaround inspection, a separate Escort/Scribe is a good idea to make sure good notes are taken, and that there is always someone available to stick with the CSHO if the Principal Spokesperson has to manage other aspects of the inspection.
- The photographer is responsible to take side-by-side photographs of everything the CSHO photographs. Often, a CSHO’s photographs lack context (i.e., they zoom in tight on a condition they consider to be evidence of a violation), so the photographer should also take photographs that give context, and my help explain away or provide defenses that the CSHO’s photograph may not show.
- Consider having your Inspection Team photographer tell the CSHO that he has been instructed to take side-by-side photographs of whatever the CSHO is photographing, and then ask the CSHO to explain what he is photographing (so he can get an accurate duplicate photograph), and why. That will serve two important purposes. It will allow your photographer to get accurate duplicate photographs that will help you prepare any defenses to citations), but it will also give you valuable information from the CSHO about potential citations during the inspection, which may allow you to nip a potential violation in the bud (before it becomes a citation).
- The Sampler will be responsible to coordinate with the CSHO with regard to any industrial hygiene sampling, and to acquire parallel samples.
- The Sampler should make sure that any samples are true duplicates of OSHA’s sample, and should take detailed notes about the sampling activity.
7. Union/Contractor Liaison.
- The Team should have a person assigned to coordinate inspection activities with any contractors who may also be working on-site and/or the employees’ union.
- At the very least, you want to put your contractors and Union on notice that OSHA is on-site and conducting an inspection, but the Union/Contractor Liaison can also help coordinate interview and information requests from OSHA that require input from or participation by the Union or contractor representatives.
- Often, OSHA will open a separate inspection for other employers, such as contractors, working at the same location. In those instances, the Contractor Liaison should also maintain contact to gather information about the status, scope, direction, and progress of those parallel inspections.
This list is not to suggest that your OSHA Inspection Team must have seven or more representatives. One person can, and in most cases should, cover several of these positions, but one person should not be tasked with all of these positions. At a minimum, the team must include one employee in the Principal Spokesperson role and one other who manages the other roles with and at the direction of the Principal Spokesperson. It is critical that once you designate these positions, that you also train each team member how to effectively fulfill the requirements of their respective roles.