Construction Law Blog

WHEN OSHA COMES KNOCKING

Brian D. Carr, Esq.
April 6, 2015

A visit by the Occupational Safety and Health Administration (“OSHA”) is not something any employer hopes for. However, anecdotal evidence indicates that OSHA inspections and enforcement actions are on the rise. The manner in which an employer responds to that inspection and visit will have a direct impact on the favorability of the outcome. Therefore, being prepared and knowing what to expect when an OSHA inspection does arise will be the first step in attempting to ensure the most favorable outcome.

As an initial matter, OSHA must have an appropriate probable cause to conduct an inspection or investigation. As such, an employer is well within its right, and indeed should, obtain the OSHA compliance inspector’s credentials as well as the basis for the inspection at the outset. OSHA inspections may be triggered by an employee complaint, an accident or fatality, or due to the employer’s nature of work which involves particular work place hazards.

If the basis for the inspection is an accident which involved personal injury, a fatality, or substantial property damage the employer should certainly notify appropriate members of management, and consider retention of outside legal counsel. If the inspection was triggered by an employee complaint, typically the walk-around inspection will be limited to the particular areas or locations at issue in that complaint. However, it also important to note that a violation which is in plain view of the inspector during that walk-around may be addressed and also serve as a basis to expand the breadth of the inspection. If there is an opportunity to immediately correct a blatant violation during the inspection the employer should consider doing so as it may serve as a demonstration of good faith and result in a reduced penalty.

If the inspection does proceed without the benefit of legal counsel the employer representative accompanying the OSHA compliance inspector should not volunteer information, and in general say as little as possible in response to inquiry. There are certainly exceptions to this standard, and in many circumstances it may be more beneficial to be open, forthcoming, and to demonstrate a clear commitment to safety and compliance.

Upon completion of the walk-around, or at some point shortly thereafter, the OSHA compliance inspector will conduct a concluding conference with employer personnel and describe any violations. The OSHA compliance inspector will then typically inquire as to how much time the employer needs to remedy or address the apparent violations. The employer should be aware, particularly if this concluding meeting is conducted outside of the presence of legal counsel, that a response agreeing or admitting to the violation will be used against the employer.

OSHA is required to issue a citation within six months of the commencement of the inspection. However, OSHA typically issues its citations within a few weeks of that inspection. It is critical for the employer to be aware that it may contest the citation, but that there are strict time limits to do so. As a tactical matter, upon being issued a citation it may be beneficial for the employer to request an informal conference with the appropriate OSHA representative. An informal conference will sometimes result in an informal settlement. However, merely requesting an informal conference will not extend the employer’s time for contesting the citation.

As this brief article demonstrates, an OSHA inspection involves many moving parts, and the nature of the alleged violations, feasibility of remediation, and cost of remediation will guide the tactical decisions with respect to how to respond to the OSHA intervention.

Brian D. Carr is a Director and litigator at Carter Conboy. Mr. Carr concentrates his practice in the defense of litigation claims, primarily involving construction and labor law, transportation, product liability, professional malpractice, premises liability, and personal injury liability. He is a Martindale-Hubbell AV® Preeminent rated attorney and the current President of the Defense Research Institute (DRI) of Northeastern New York.  Mr. Carr can be reached at 518-810-0523 and at bcarr@carterconboy.com.

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