by ADMC Member Stuart J. Oberman, Esq.
The Occupational Safety and Health Administration (OSHA) dedicates itself to enforcing safety and health regulations in places of employment throughout the United States. OSHA typically conducts workplace investigations without notifying employers, and an unexpected knock on the door can leave employers overwhelmed. Knowing OSHA’s inspection process prepares employers in proceedings.
OSHA conducts two major types of investigations: Phone and Fax Investigations and Onsite Investigations.
PHONE AND FAX INVESTIGATIONS
With the permission of the complainant, OSHA may choose to conduct a phone/ detail investigation for low-priority hazards. An OSHA compliance officer may telephone an employer to present current health and safety concerns. After, OSHA will send a follow-up letter outlining the current health and safety violations discussed. The employer must respond to the allegations within the proscribed time period. In a written response, the employer should identify the potentially hazardous conditions and disclose the corrective measures taken to remedy OSHA’s concerns. If the response meets OSHA’s standards, OSHA typically will not conduct an onsite investigation.
ONSITE INVESTIGATIONS
1. Determining Probable Cause: OSHA begins investigating a workplace by analyzing various history and worksite data as well as current operations and processes in effect. Once determining a probable cause for an onsite inspection, OSHA will proceed with a visitation.
2. Credential Presentation: An OSHA officer should always present credentials and identification.
3. Opening Conference: The OSHA investigative officer will disclose the reasoning behind the current investigation as well as the scope of the investigation.
Typically, an OSHA officer will investigate a workplace under the following circumstances:
– An employee has filed a hazard complaint.
– An injury on the job site has occurred.
– OSHA has established a new program to address a specific work hazard.
4. The Walkaround: Succeeding the opening conference, the OSHA compliance officer, accompanied by the employee representative, will begin analyzing portions of the workplace currently under investigation. The compliance officer may search for the proper display of the official OSHA poster and note current violations of health and safety code. In addition, the compliance officer may analyze injury and illness work records as well as conduct private employee interviews.
5. Closing Conference: The closing conference marks the termination of the investigation and states the findings. OSHA classifies any violations of safety and health standards as willful, serious, other-than-serious, de minimis, failure to abate, and repeated. During the closing conference, OSHA obtains the power to issue citations and fines appropriate to the classification of the violation(s). Citations should disclose the OSHA violation(s) incurred, account the proposed penalties for the current violation(s), and provide a deadline for hazard correction.
If you receive a letter from OSHA, it is critical that you retain legal counsel to assist with OSHA’s investigation.
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This article is written by ADMC member Stuart J. Oberman, Esq.
Mr. Oberman represents medical and dental clients through the United States in a wide range of areas, including mergers & acquisitions, partnership agreements, commercial real estate, entity formation, employment law, commercial leasing, intellectual property, and HIPAA/OSHA compliance.