How to Survive an OSHA Audit -- Occupational Health & Safety

How to Survive an OSHA Audit

From Occupational Health & Safety, OHSonlone.com

There are many records and written programs that OSHA does not specifically require to be in writing, but you should have them anyway.

How to Survive an OSHA Audit

There is no way to
avoid an OSHA audit, much as there is no way to avoid having a root
canal. But you can lessen the pain by being well-prepared.
"Hello. I'm from OSHA, and I am here to help you."

If you own or operate a business, chances are very good you've heard these dreaded words before. Next to, "Hello, I'm from the Internal Revenue Service," there are few greetings more inclined to make your knees weak. But it doesn't have to be that bad.

Even with the 7 million workplaces that it covers each year, OSHA
will most likely find its way to your location. When it does, here are
some tips to help you survive your OSHA audit.

Plan for an inspection by making sure you have three key items in place prior to the arrival of the OSHA compliance officer (CO):

1. A determination whether you will ask for a warrant

2. A form to document what occurs during the inspection

3. All pertinent documentation, such as written programs, training records, inspection records, etc.


We recommend you do not require the CO to obtain a warrant before
entry unless you need to gain time, such as when a manager or counsel
needs to be present. It is your legal right to ask for a warrant, but
this might trigger a stricter audit (and raise possible red flags). It's
wiser if you simply work with the inspector. Answer questions honestly
and fully, but don't offer additional information unless it will help
you avoid citations. Cooperate as long as the inspector remains ethical
and reasonable.

Be prepared. These inspections are without notice, so you will want
to have all information readily available in anticipation of an
impending audit. Here are some items to have prepared:
  • Assignment of responsibilities, to include a "greeting team" to meet the CO
  • Documented training logs
  • Recordkeeping
  • Equipment inspection records
  • Safety and health policies
  • Review of insurance and third-party audits
  • Hazard assessment and abatement
  • Review of previous audits and citations
It is also wise to have a form available to record the inspector's
actions and comments during the inspection. This information will help
you understand what transpired and will assist your attorney, should you
contest the citation or penalty. Items you should record on this form
include:
  • The inspector's name and office telephone number
  • The documents that the inspector reviewed and copied
  • The attendees at the opening and closing conferences
  • The areas that were inspected
  • The employees and union representatives who participated
  • The dates and times when the inspector was on site
Document Review

Almost all OSHA inspections begin with a review of written documents.
These documents include your injury and illness records, safety manual,
OSHA-required programs, OSHA-implied programs, safety procedures, and
training records.

There are many records and written programs that OSHA does not
specifically require to be in writing, but you should have them anyway.
These documents are referred to as OSHA-implied records. For example,
although OSHA requires every employer to conduct frequent ladder
inspections, there is no specific requirement to keep a written record
of ladder inspections. The written record in this case could be a log of
all ladders with initials and dates of inspection or a tag attached to
the ladder with spaces for the inspector to initial and date.

Just to get you used to what you're in store for, we'll walk through a mock OSHA audit:

1. The knock at the door. We recommend escorting the compliance
officer to your office or waiting area. This will give you time to
gather your documents and the "greeting team" to accompany the CO
through the inspection.

2. The opening conference. The officer will explain why OSHA selected
your workplace for inspection and describe the scope of the inspection.
Have your "greeting team" here to accompany the CO during the
inspection. Make sure you set ground rules for the inspection, get a
copy of the complaint if applicable, treat the CO in a professional
fashion, coordinate with on-site contractors and vendors, bring up any
trade secret issues you may have, but don't volunteer any information unless asked.

3. The walk-around/inspection. Make sure you have an employee
representative attend the entire inspection and take accurate notes on
areas reviewed and all discussions and comments from the CO, as well as
any photos, videos, air monitoring, etc. Keep in mind that whatever is
in the CO's sight is subject to inspection. But maintain control.
Remember, it's your facility and you have rights. Don't be bullied, but
also don't try to talk your way out of an apparent hazard. It will not
help and probably will make it worse. Above all, don't destroy evidence.
The CO also may want to interview employees; make sure to schedule
these away from your work area. It's up to your hourly employees whether
they want company representation during the interview. Advise the
employee of his/her rights, your appreciation of their cooperation, and
to tell the truth. Be aware that employees do have whistleblower rights.
As for management and supervisor interviews, always have another
management person/counsel present during the interview. If there is a
fatality investigation, your attorney always should be present. No tape
recording is permitted, and you will need a signed statement upon
completion.

4. The closing conference. During the closing conference, the CO will
review any apparent violations and discuss possible methods for
correcting the violations within a reasonable time period. The CO will
explain that the violations found may result in a citation and a
proposed financial penalty, then describe the employer's rights and
answer all questions. Remember, this is not a time for debate--the law
requires OSHA to issue citations for safety and health standards
violations. The citations include:
  • A description "with particularity" of the violation
  • The proposed penalty, if any
  • The date by which the hazard must be corrected
Citations are usually prepared at the local OSHA office and mailed to
the employer via certified mail. OSHA has up to six months to send a
Notice of Penalty. Employers have 15 working days upon receipt to file
an intention to contest OSHA citations and/or to request an informal
conference with the area director to discuss any citations issued.

Common causes to dispute citations include:
  • The citation is false.
  • The citation's dollar penalty is excessive.
  • You disagree with the citation's contention that the danger was real, serious, and that an accident was likely to occur.
  • The contention that you are responsible for causing the unsafe conditions.
Finally, contesting may not relieve you completely of a penalty, but
it may help you negotiate a lesser fine. Contesting is usually a good
idea. OSHA typically negotiates with employers to a lesser penalty
amount.

There is no way to avoid an OSHA audit, much as there is no way to
avoid having a root canal. But similarities aside, you can lessen the
pain by being well-prepared.


About the Author

Jim Rhoad is an Outsource Risk Manager with Ottawa
Kent Insurance in Jenison, Mich. He has experience in dealing with
worker’s compensation issues across all industries, including
construction and manufacturing. He can be reached at
Jrhoad@ottawakent.com.


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