Mar 31, 2012

Managing an OSHA Inspection: Answers to Frequently Asked Questions

Certain questions are asked frequently by clients when the U.S. Occupational Safety and Health Administration (OSHA) shows up unexpectedly at their doorsteps. These questions and many more are addressed in Epstein Becker Green’s OSHA Inspection Checklist desk reference guide, found on its OSHA Law Update blog.

Scenario 1: An OSHA Compliance Safety and Health Officer (CSHO) arrives unannounced to begin an inspection, but the representative who the employer wants to manage the inspection is not present. Can the employer request that the CSHO return later or wait to start the inspection until the chosen representative is available?

Answer: Yes, the employer can request that the CSHO return at a later time or wait a reasonable amount of time until the employer’s chosen inspection representative is available. The Occupational Safety and Health (OSH) Act grants to employers the right to be represented during an OSHA inspection and to accompany an OSHA CSHO during on-site inspection activities. The employer has the right to designate whoever it wants to fill that role. If that person is not available at the moment OSHA arrives but can be available in a reasonable amount of time, the employer can request that the CSHO wait or return later.

OSHA’s Field Operations Manual explains that OSHA believes that waiting approximately one hour is a reasonable amount of time to delay the start of an inspection to wait for the employer’s selected representative to become available:

When neither the person in charge nor a management official is present, contact may be made with the employer to request the presence of the owner, operator or management official. The inspection shall not be delayed unreasonably to await the arrival of the employer representative. This delay should normally not exceed one hour.

Notwithstanding OSHA’s purported one-hour rule, unless the CSHO has a warrant or other exigent circumstances exist (i.e., imminent danger in plain view), the employer can refuse to consent to the inspection until its chosen representative arrives, so OSHA  could not proceed with the inspection without obtaining a warrant, which generally takes at least a couple of days.

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