When a workplace accident results in an employee being injured, an employer is likely to experience a visit from a U.S. Occupational Safety and Health Administration (OSHA) inspector. Such a visit is no time for an employer to guess about how to handle the agency’s investigation. 
Recently attorneys from the Employers Counsel Network, which focuses on employment law issues, were asked what to do about an inspection following a workplace accident. Their advice to employers: Carefully select the right person to manage the investigation, and make careful preparations ahead of the inspector’s visit.
Whether the employer requests an inspection after an injury or the accident triggers OSHA to instigate the inspection shouldn’t alter the company’s initial response, according to Jo Ellen Whitney, an attorney with the Davis Brown Law Firm Firm in Des Moines, Iowa. In either case, the employer needs to determine ahead of time who will accompany the inspector during the investigation, and that person should be trained on how to interact with the investigator.
“Simple training includes the axioms of all agency investigations: Be honest, be polite, and don’t volunteer information but provide only what is requested,” Whitney wrote in the October issue of Iowa Employment Law Letter. She adds that the employer’s person in charge of managing the inspection needs to know how to locate the company’s safety documentation, including injury and illness records for the past five years, anything related to the employer’s hazard communication program, emergency preparedness and evacuation procedures, and information about the company’s lockout/tagout program and personal protective equipment. Whoever is in charge also should be familiar with OSHA posting requirements.
Whitney says typically an OSHA inspection includes an opening conference, a walk around the pertinent parts of the workplace, and a closing conference. When an inspector arrives, the employer should verify the inspector’s credentials and inquire about the purpose of the inspection as well as its scope, she says.
If the inspection is a result of a complaint, the OSHA investigator should provide the employer a copy of the complaint at the opening conference, Whitney says. If OSHA doesn’t offer an opening conference, she advises requesting one. The employer’s representatives also should participate in a closing conference to obtain the inspector’s findings and preliminary conclusions.
Ideally, the company’s leading representative should be a safety director or someone in upper management who is familiar with OSHA standards, Jacob Monty, an attorney with Monty & Ramirez LLP in Houston, Texas, wrote in the October issue of Texas Employment Law Letter. The employer’s representative “should take charge of certain responsibilities during the inspection such as attending the opening and closing conferences, photographing all areas of the facility that OSHA inspects and documents, attending and assisting in interviews of management employees, and making sure employees are aware of their rights during interviews,” he says.
Jerrald L. Shivers, an attorney with The Kullman Firm in Jackson, Mississippi, advises employers to prepare for an OSHA inspection by conducting a self-inspection and taking immediate corrective action for any violations discovered. “An OSHA inspector can cite you for any violation he sees during an inspection, not just violations that are related to the employee’s injury,” he wrote in the October issue of Mississippi Employment Law Letter. He adds that employees should be instructed to refer an OSHA inspector to the company’s designated representative, and that representative must understand the inspection process and the company’s rights during the inspection.
The OSHA investigator will be looking for any apparent OSHA violations, such as tripping hazards or blocked exits, H. Mark Adams, an attorney with Jones Walker LLP in New Orleans, Louisiana, wrote in the October issue of Louisiana Employment Law Letter. Also, he says the investigator will require the company’s OSHA logs for at least a three-year period and any inaccuracies will raise red flags for other potential safety issues.
The investigator also will interview employees involved in an accident. “So make sure they are prepared, preferably by your OSHA counsel to maintain the attorney-client privilege,” Adams says. He also recommends reviewing safety training records for all employees involved in an incident as well as records of any disciplinary action taken against them for safety violations and related infractions. “Both types of documentation will be required to satisfy OSHA if you raise the affirmative defense of employee misconduct,” he says.
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To demonstrate to OSHA that your company has implemented a comprehensive and successful safety program, you must be able to show that you have a documentable disciplinary program in place. Serious compliance issues resulting in potential violations, citations, and penalties, may occur if you don’t. Join us February 11 for the BLR webinar Managing Safety Risk-Takers: Legal Discipline Strategies for Workers Who Disregard Safety Obligations. The presenter, a seasoned safety lawyer who has helped many companies design and implement an effective safety enforcement program, will provide a roadmap for developing and implementing an effective enforcement strategy, including infraction discipline—often a missing ingredient in existing safety programs. For more information, click here.