OSHA Inspection Rules and Regulations for the Construction Industry | Jackson Lewis PC

When the Occupational Safety and Health Administration (OSHA) arrives at a construction site for an inspection, knowing OSHA’s industry requirements is critical to keeping the business moving. OSHA targets the construction industry like no other because operations are often clearly visible and because the industry accounts for more occupational accidents than any other.

Below are some practical tips for each phase of an OSHA inspection that can help you get back to the way of doing business.

Before the inspection

No:

• Falsify reports. Criminal liability may be incurred for falsifying data in OSHA 300 logs or other records.

• Fire a worker for absenteeism due to an occupational accident. Termination can be considered an unfair labor practice and trigger a discrimination claim.

do:

• Protect trade secrets. Identify records containing trade secrets, especially from safety and health audits.

• Get a reputable consultant or safety and health director. Make sure the person has strong credentials and a solid reputation.

• Review policies and procedures, particularly regarding training, discipline and hazard assessments. Ensure that policies are well aligned and followed.

When OSHA arrives

No:

• Send managers or supervisors for interviews. Managers and supervisors speak on behalf of the company, so their admissions are admissions of the company. The company determines consent to management interviews and may have a lawyer in the room.

• Block the entrance. Either be “too busy” or close. Such games may be viewed as obstruction, which may lead to criminal penalties and lead to unnecessary presumptions. The inspector can get a warrant and come back with a sheriff. If necessary, ask the inspector to wait briefly while the manager or safety director is present.

• Coach’s Staff Answers. Pressuring employees to answer questions in a certain way can backfire and cause resentment.

• Get scared. Get advice from your adviser, not the agency.

do:

• Show courtesy. Being professional and polite can go a long way in opening the lines of communication. Penalties can be greatly reduced by demonstrating good faith. Set a constructive tone even when asserting your rights.

• Ask open-ended questions. Inspectors want to say what they see. Encourage this. After the verification is complete, the verification file may not be available for a long time.

• Take a photo. Have someone walk with the explorer, ask what they see, and take the same photos, video, and measurements they do. Create a “dummy file” for the informal conference and potential competition.

• Advise employees of their rights in private OSHA interviews, particularly regarding consent, representation, written statements, and records. Employees who don’t know their rights can be intimidated into signing statements and telling the inspector what they think the agency wants to hear.

After Walkaround

No:

• Let the company’s safety professional play the role of advocate. Knowing the standards is not enough. You need to know how judges apply the law to assess the legal defense.

• We welcome any inquiry for information. Targeted and complaint-led inspections should be limited to information relevant to the complaint or incident. Comprehensive employee lists and personal contact information, for example, may exceed agency authority.

• Repeat scene. Restatements can lead to unintended recognitions and incorrect assumptions.

• Submit a root cause analysis or internal investigation before it is complete or if it involves privileged information. An attorney review is an absolute must here.

do:

• Consider the hidden costs of quoting. Is it worth a race? Perhaps, especially if a citation reaches a final order that mandates a reduction that hurts your business model, impairs your ability to bid for future work, or sets you up for a “re-quote” later. An experienced OSHA attorney can help assess legal exposure and likelihood of success.

• Consider changing the language of the quote. It is negotiable, and plaintiff’s attorneys, unions, industry competitors, and news sources can use the language in the final order for their own purposes.

Avoid retaliation claims

No:

• Whistleblowing retaliation. Dismissing, threatening, or taking any adverse action against witnesses during the citation phase may result in another investigation for an entirely new crime.

• Go easy on the safety taunts. Suspending an internal disciplinary program for safety violations can make the situation worse. Instead, use the occasion to implement or reinforce a system of safety incentives and discipline.

do:

• Be liberal with applicants and interviewees. Even casual questioning can create the feeling of revenge.

Have a plan for when OSHA shows up to get the best result.