In March of last year, we answered five frequently asked questions related to OSHA inspections. After receiving much positive feedback about that post and a few new OSHA inspection-related questions, we decided to launch a regular series on the OSHA Law Update blog with posts dedicated to OSHA Frequently Asked Questions. For each post in this OSHA FAQ Series, we include both a text response and a video/webinar with slides and audio.
In last month’s OSHA FAQ #4 we talked about the importance of and strategies for establishing an internal OSHA Inspection Team. In this month’s OSHA FAQ #5 we review the physical tools, materials and resources that the OSHA Inspection Team should have handy to manage an OSHA inspection.
QUESTION: I have now assembled an internal OSHA Inspection Team, so what materials, resources, and equipment should we set aside for the team in order to effectively manage an inspection by OSHA?
As we discussed last month, OSHA collects nearly all of its “Discovery” during the inspection stage, not during the subsequent Contest/Litigation phase, and OSHA uses that Discovery to determine whether violations exist and uses it as evidence to support citations that it issues in later litigation. Accordingly, it is critical for employers to manage the flow of information to OSHA during the inspection.
To accomplish that goal, we recommended last month that employers establish an internal OSHA Inspection Team, and train the Inspection Team members in advance of a visit by OSHA. As important as knowing who will play important roles during an inspection by OSHA, employers should also think in advance about what tools the team members will need in order to best manage the inspection.
Although the resources necessary for each inspection will vary based on your industry, the nature of your facility, the materials you work with or produce, and the reason OSHA is conducting the inspection, the following list identifies the basic inspection tools that every employer should maintain for its inspection teams:
- Contact List (to notify and coordinate with senior management, legal department or outside OSHA counsel contacts, the rest of the inspection team members and back-ups, and other personnel who have access to information for the inspection);
- Camera/Video Camera (to collect take side-by-side images taken by the CSHO);
- Document & Interview Log (to track OSHA’s document and interview requests, and your responses to OSHA);
- Bates and Business Confidential Labels (to mark each page of each document produced to OSHA with a unique identifying number and to identify those sensitive business records that OSHA should withhold from a FOIA request);
- Tools for Physical Sampling (to take matching samples taken by the CSHO, including dust, chemicals, noise readings, air readings, etc.);
- OSHA’s Field Operations Manual (to consult with to understand why the CSHO is doing certain things, and to reference if the CSHO is doing something contrary to the manual)
You should supplement this list based on your specific needs. For example, if your facility creates or works with dust particles, be prepared to take dust samples alongside the CSHO. The sampler may need viles and/or bags to secure the samples. In the case of a facility that contains loud machinery, the CSHO may perform noise monitoring to evaluate compliance with OSHA’s hearing protection standards. A member of the inspection team should have access to a dosimeter (or be prepared to coordinate with a third party industrial hygienist) to take side-by-side readings with OSHA’s industrial hygienist.
OSHA’s compliance directives and special emphasis program directives related to your operations are also a good resource to have handy, so your team members can review the types of physical evidence OSHA may pursue during an inspection at your facility, and therefore, the types of physical tools you may need to gather your own set of that evidence.
In sum, equip your Inspection Team with the tools needed to gather the evidence likely to be gathered by OSHA during an inspection.