Most employers do their best to provide employees with a safe workplace, and few, if any, would intentionally disregard safety or environmental regulations at the expense of their workers’ or the community’s well-being.
But big problems arise because owners of small businesses find it difficult to follow the barrage of constantly changing regulations issued by government agencies. Trying to run a business while simultaneously keeping abreast of OSHA, EPA, DOT, IRS, etc., and their endless series of acronyms is like playing regulatory Scrabble and losing.
But as a shop owner and an employer, it’s critical to keep abreast of environmental, health and safety (EHS) regulations affecting your business. Understanding your rights and what to do if an inspector knocks on your door can help a nerve-wracking situation become a little less unnerving.
Who the Government Inspects and Why
The government has established a system of inspection requirements and priorities following these guidelines:
- Stationary source inspection – Under the 1990 Amendments of the Clean Air Act, permitted (stationary) sources must be inspected on a periodic basis (generally not less than every three years) and in accordance with statutory schemes.
- Imminent danger – The existence of any condition the government refers to as a “reasonable certainty” will prompt an investigation. That is, a danger exists that can be expected to cause death or serious physical harm immediately or before the danger can be eliminated through normal procedures.
- Catastrophes and fatal accidents – Fatalities or accidents resulting in the hospitalization of three or more employees must be reported to OSHA within eight hours and inevitably prompts an investigation.
- Employee complaints – Employees have the right to request an inspection when they believe they’re in imminent danger from a hazard or when they think there’s a violation of an OSHA or EPA standard that threatens physical harm.
- Programmed inspections – Specific high-hazard industries, occupations and substances are on a random inspection list, as are companies with high-injury incidence rates and/or citation history.
- Follow-up inspections – These visits are conducted to determine if previously cited violations have been corrected.
When an inspector arrives at your facility, he should present his official credentials and ask to meet an appropriate employer representative. Employees also have the right to representation during an inspection.
If an employer refuses to admit a compliance officer or attempts to interfere with the inspection, the government permits appropriate legal action. However, you do have the right to refuse entry to the inspector if you so choose.
Based on a 1978 Supreme Court ruling, OSHA usually may not conduct inspections without valid consent or without a warrant. The agency may, however, inspect a facility after acquiring a judicially authorized search warrant based upon evidence of a violation.
The inspection consists of an opening conference, a walk-around inspection, if deemed necessary by the inspector, and a closing conference.
What actually happens during an inspection depends largely on the reason for the inspection or what the inspector encounters while there. If, for example, the inspector is there as a result of an alleged employee complaint of minor consequence, perhaps he can be shown the complaint is invalid at the opening conference. If, on the other hand, the inspector can visually see flagrant violations in the workplace, he may decide to perform a “wall to wall” inspection.
During the inspection, the compliance officer must act as though he’s a guest in your facility. This means he doesn’t have unrestricted authority. Your rights as a business owner or representative of your company are no less important or valuable than your civil rights as a citizen. Your employees’ rights to employment in a safe work environment are also every bit as critical. Ideally, both can be achieved, resulting in a workplace that’s both safe and in compliance with regulations.
OSHA is governed under administrative law, not statutory law. You have the right to representation or counsel for your inspection, and because it’s administrative law, your counsel need not be limited to a lawyer. If you can’t afford a full-time EHS professional on staff and you rely on an outside expert or consultant, your written inspection policy should dictate that you have a right to have that person present for an inspection.
A written policy regarding inspections of your workplace can benefit you greatly by showing your willingness to cooperate while reinforcing your rights and acknowledging the legal parameters under which you submit to the inspection. Items to include on your facility inspection form include:
- Facility inspection policy – Every facility should have a facility inspection policy, as well as forms that spell out this policy.
- Permission to grant entry – The form should list which person or persons may grant entry to the inspector(s). Any representation or counsel you wish present during an inspection should also be listed here.
- Representative information – Inspectors should list their agency information complete with address, telephone number, employee identification number and the name and phone number of their immediate supervisor.
- Nature of the visit – This is where the inspectors should spell out the reason for the visit. If they refuse to tell you the reason, refuse to grant admittance. For them to obtain a warrant, they must give the judge a valid reason for the inspection.
- Items to be seen – Have the inspectors list specifically what location, documents and employees they’d like to see. If they list a specific location, take them there and only there. Don’t take them on an unrequited tour of your facility.
Your facility inspection form will list the one or two people designated to authorize entry to your facility. In smaller businesses, it may be yourself and your top office manager. It’s advisable to have more than one person designated since no individual is always at the workplace.
Having only one or two people designated to deal with an inspection accomplishes several objectives. It eliminates confusion when an inspector arrives, and it ensures continuity in discussions. If the designated person is knowledgeable about what to expect, the inspector will be less intimidating.
Prior to granting an inspector entry to your premises, follow these steps:
- Request credentials. Inspectors must present identification upon request.
- Show the inspector your facility inspection policy.
- Contact the person(s) listed on your policy as your counsel. Remember, you’re entitled to have them present during an inspection. If they’re not available in a reasonable time frame, put them on the phone with the inspector to see if rescheduling the inspection is a possibility.
- Ask the inspector to complete the Government Representative Admissions Form. If the inspector refuses to fill out the form, make a notation on the form, sign and date it, and offer a copy to the inspector.
- Ask what prompted the inspection.
- If the inspection is the result of a complaint, ask for both the source of and a copy of the complaint.
- Find out if the inspector has a warrant. If there’s a warrant, have your counsel review it and determine if the warrant outlines the specific area(s) of your facility to be inspected.
Stick to the Story
It’s hard not to be nervous during an inspection by a government official. Still, try to avoid some of these costly mistakes:
- Volunteering information when it’s not requested. Most company management is justifiably proud of their company and many have a tendency to show more than is required or answer an unasked question.
- Permitting photographs and videotapes without challenge. If the inspector insists on pictures, then take an identical set of pictures for yourself.
- Proceeding with the inspection without adequate representation.
- Interrupting the work of employees. Inspectors may want to talk to employees, but you don’t have to interrupt their production at your expense.
- Starting up a job or process so the inspector can see how things work. This isn’t a requirement, and deficiencies in equipment, such as lack of a machine guard, may not be cited if the equipment isn’t being used.
- Not demanding a warrant if it’s in your best interest to do so at the time.
- Forgetting that inspectors must conduct themselves as guests. If they don’t, you have the right to terminate the inspection at any time if it’s not under a warrant. If a warrant is involved, suspend the inspection and seek legal counsel.
- Not documenting everything. You can be sure the government inspector will document everything that he does, and you should do the same. Often things that seem trivial at the time wind up taking on added significance later.
- Paying fines without contest. If you automatically pay the fine, the government is going to assume you didn’t correct the problem and will do a follow-up visit. Go to the informal conference after the inspection and argue for penalty reductions. Demonstrate how you’ve fixed the problems.
Writer Steven E. Schillinger is president of PIRK Recordkeeping, Inc. He can be contacted at ([email protected]).
Occupational Health and Safety Services
Smaller businesses can obtain information from state agencies about an on-site consultation that includes written appraisal of machines, work practices, existing EHS programs and training without receiving citations or reporting violations.
Use these hotlines to request documents or ask advice from governmental agencies. Most hotlines are staffed during business hours and have voice-mail capability for after-hours calls.