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 for OSHA FAQ posts. For each of the posts in this OSHA FAQ Series, we have included both a textual response and a video response with slides and audio.
In this post, OSHA FAQ #3, we address a very common question regarding whether (and for how long) employers can ask OSHA to delay the start of an inspection to allow a specific employer representative, such as the company’s outside OSHA counsel or corporate safety director, to arrive at the site in order to participate in the inspection.
QUESTION: If OSHA arrives at one of our active construction sites to conduct an inspection under the Falls in Construction Special Emphasis Program, and our policy requires our Director of Crews to represent the Company at all times when OSHA is on-site, but he is located at our Headquarters (a six-hour drive from the site). Can we ask OSHA to wait until the Director of Crews arrives before starting the inspection?
Employers can request that the CSHO return at a later time or wait a “reasonable” amount of time to allow the Company’s chosen inspection representative to arrive at the site of the inspection. The OSH Act grants employers the right to be represented during an OSHA inspection, the right to accompany a CSHO during the on-site inspection, and the right to participate in management employee interviews. It is the employers right also to designate whomever it wants to serve in that representative capacity during the inspection.
OSHA will wait a reasonable amount of time for that representative to arrive, and acknowledges that duty in its Field Operations Manual. The OSHA Field Operations Manual, however, states that a delay of one hour is normally considered to be reasonable:
"The inspection shall not be delayed unreasonably to await the arrival of the employer representative. This delay should normally not exceed one hour. On occasions when the CSHO is waiting for the employer representative, the workforce may begin to leave the jobsite. In this situation the CSHO should contact the Area Director or designee for guidance.
Notwithstanding that language in the Field Operations Manual, reasonable is reasonable, and if the employer representative is more than one hour away, and the requested delay is not for any nefarious reason (i.e., destroying evidence of violative conditions), then a longer delay is reasonable.
Regardless of whether OSHA believes it reasonable to wait six-hours, or delay until the following day (or for however long it actually takes for the employer’s chosen representative to arrive on site), the employer can insist that OSHA wait, and if OSHA does not agree, the employer can always refuse to consent to the inspection, and demand that OSHA obtain an inspection warrant before beginning the inspection, which process will ordinarily take at least a day or two.
There are, however, two scenarios when OSHA may try to force itself on to the employer's property without waiting for the employer representative or first obtaining a warrant:
- Exigent Circumstances - the compliance officer has reason to believe that critical evidence of a workplace violation is being destroyed or removed from the workplace, and his immediate access to the evidence is necessary.
- Imminent Danger - the compliance officer has reasonable grounds to believe there is a condition that exists at the workplace that presents an imminent risk of death or serious harm to an employee.