By Robert Tuman, CCR Safety Consulting

Note: OSHA citations are available to the public without login and password, and easily accessed by going to the OSHA.gov website and entering “Establishment Search” in the search box on the upper right hand side.  

PREPARING FOR AN OSHA INSPECTION

1. Have your safety documentation readily available and keep copies centrally located in 3-ring binders in your trailer or Forepersons’ vehicles. For example, and note that this is not an all-inclusive list, include your Injury and Illness Prevention Program (with signed employee acknowledgement that they have read, understand, and will comply with, for example, your Code of Safe Practices), list of required Personal Protective Equipment- again with employees’ acknowledgements that they have read and will comply, Hazard Communication (Globally Harmonized System) program, Safety Data Sheets (“SDS”), annual OSHA Summary of Injuries and Illnesses, signed and dated safety meetings and exposure-specific Qualified Person and Competent Person safety training records and other proof of exposure-specific safety training- i.e. OSHA 10 or 30 Hour Construction Safety training. Further, include Job Safety/Job Hazard Analyses, Site-Specific Safety Plans, Pre-Task Safety Plans, and safety inspections, citing corrective actions you took to protect employees and, if you subcontract work, your subcontractors’ safety documents. Additionally, file copies of current employees’ and subcontractors’ employees’ completion of training certifications and licenses- i.e. aerial lift, forklift/rough terrain forklift/reach lift, powder-actuated nail gun, hydraulics engineers’ licenses or proof of equipment training.  
2. Post your OSHA Log (summary of your prior year’s work-related injuries and illnesses) from February 1^st through April 30^th. Don’t have anywhere to post this document except in your office or break room? Provide Foremen with copies to keep in their vehicles and in your jobsite trailer if you have one.  
3. Post your Personal Protective Equipment 0 tolerance policy, with enforcement language, on every jobsite. This should state that you require, for example, hardhats, safety glasses, high visibility vests, work boots, pants and shirts, and risk-and- exposure-specific Personal Protective Equipment- i.e. face and nose coverings, respirators, hearing protection, and document the disciplinary action you’ve taken against employees who you observed violating your PPE policy.  
4. Have signed and dated tool and equipment self-inspections readily available, and include corrective actions, if any. A tip: ask employees and subcontractors’ employees to bring extension cords and tools to weekly safety meetings for documented inspection, and take damaged or inoperable tools, equipment, and cords out of service. 
5. Hold employees and subcontractors accountable for weekly equipment tests and inspections. For example, hold electrical subcontractors responsible for inspecting and testing ground fault circuit interrupters (“GFCI”) weekly and for submitting these signed and dated inspections and corrective actions. 

6. Hold your and subcontractors’ personnel responsible for daily cleanup of their work areas and continual organization and reorganization of materials and equipment to minimize slips, trips and falls. 
7. Designate an experienced, trained, and personable manager as the company go-to person for OSHA inspections.   
8. Have and maintain a digital camera on each jobsite and take photos or videos of actions you have taken to protect workers. Keep it in a sealed bag, keep it charged, and if necessary add additional memory.

DURING THE INSPECTION

9. Introduce yourself and be friendly and courteous. Ask your designated OSHA ombudsman to join you. Ask the OSHA Compliance Officer (“CO”) for identification and a business card. If there was an accident or apparent reason (i.e. a roofer falls 28’ and is taken by ambulance to the hospital) for an OSHA inspection, ask the Compliance Officer to detail the reason for the inspection. The Compliance Officer should conduct an “opening conference”, during which the Compliance Officer details why OSHA is inspecting your jobsite. Was there an anonymous complaint (ask for a copy of the complaint), did she or he observe a fall hazard or other safety violation while driving by the jobsite, or is the inspection part of a Local, Regional, and/or National Emphasis Program allowing warrantless inspections? OSHA cannot and will not provide the name of the party making the complaint or other identifying information. You may know or sense that you know the person(s)’ identity, but don’t go fishing- it could backfire on you in the form of an allegation of retaliation. 
10. Provide information and documentation only when asked. Sometimes you can compound matters by providing potentially incriminating information and documentation. For example, if you wish or are asked to provide a copy of an unsatisfactory self-inspection, make sure you provide the completed corrective action plan. 
11. Accompany the Compliance Officer during her or his inspection and take pictures and/or video of what she or he takes pictures of and note what she or he is observing.
12. Be nice but don’t fall all over the inspector. Don’t BS the inspector, as they have a good nose for BS and many have worked in the trades. 
13. Make employees available to the Compliance Officer if she or he asks to interview them in private. OSHA has the right to talk to employees without their managers present. Employees can have a union or employee representative present during these interviews. Arrange for space where they can talk in private. After the interview, employees might want to discuss what they told the Compliance Officer, but don’t probe. Wait for them to come to you.  
14. Ask the Compliance Officer for a face-to-face “closing conference”- a summary of her or his findings. OSHA may prefer to conduct a closing conference by phone- which is perfectly acceptable, but request a face-to-face closing conference so that you can assure and show the CO that you took definitive  corrective actions right after the inspection, and that you have sustained your efforts to keep employees safe. This goes a long way to show an Informal Conference hearing officer that you are serious about minimizing injury and illness risks and exposures.
15. Employers’ knee jerk reflex during closing conferences is to ask if they will be fined and the amount of the fine. Don’t even bother, as the CO cannot and will not tell you the amount of the fine.

AFTER THE CLOSING CONFERENCE

16. Review the findings with affected employees and subcontractors. OSHA likes to see that you took corrective action immediately after the inspection, so don’t wait until you get the citation. For example, if the CO observed employees working without fall protection, implement and document fall protection training and a mandatory fall protection program. If you have a long-standing fall protection program which was violated, discipline the violators, including Foremen, and document that have done so- to prove to OSHA that you took timely corrective action. OSHA wants to see a history of disciplinary actions- not just the disciplinary action taken against recent violators.
17. Correct safety deficiencies, if any, as soon as possible, document your corrective actions, and provide OSHA with copies. If you need additional time to correct deficiencies (i.e. scheduling and completing OSHA 10-Hour training, conducting fall protection training, aerial lift and other trainings), provide the Compliance Officer with your timetable and keep her or him informed of your progress toward completion of training. 
18. Update the Compliance Officer as you complete each action item or have completed a group of action items. Don’t wait until all corrective actions have been taken.

WHEN YOU GET THE CITATION

19. ALWAYS schedule an Informal Conference, as you want to have the opportunity to present your case in an informal, free-flowing session with an OSHA manager- often an Assistant Area Director. You have 15 workdays from the date you receive the citation to participate in an Informal Conference. For example, if you receive the citation the afternoon of December 24^th, you have until January 16^th to complete the Informal Conference. You definitely want to go to an Informal Conference well before the “contest date”, the deadline for contesting one or more citations. You want to give yourself enough time before the “contest date” to make a deliberate and informed decision whether to contest or pay the fine. 
20. Provide copies of the citation(s) to your in house OSHA liaison and to affected employees and subcontractors. Meet to determine the accuracy of the citations. 
21. Fact find with employees or subcontractors’ employees who claim they “didn’t do it.” An employee who vehemently claimed he was not exposed to a fall hazard unexpectedly and embarrassingly “fessed up” during the Informal Conference when the hearing officer produced a photo of him without fall protection. The owner was embarrassed and felt forced to pay the full amount of the fine. 
22. Compliance Officers sometimes make unintentional mistakes. I was able to get multiple citations transferred from a roofing client to its subcontractor, as my client had an “arm’s length” relationship with its roofing subcontractor. The subcontractor didn’t endear himself to OSHA when the foreman, asked nicely to come down from the roof to talk with the Compliance Officer, refused to come down and bring his crew off the roof. To make matters worse, he threw a bundle of shingles at the Compliance Officer. The State of Maine OSHA Regional Director told me that he almost called the FBI to arrest the foreman.

THE INFORMAL CONFERENCE

23. NEVER, EVER MAKE EXCUSES, PLAY THE BLAME GAME, OR COMPLAIN THAT THE CITATIONS WILL PUT YOU OUT OF BUSINESS. If one or more of the citations are factually incorrect, bring convincing evidence supporting your request to rescind them. However, if you were clearly in violation, try to reduce the fine and change the citation’s category (i.e. from “Serious” to “Other” than serious). 
24. When a client has been guilty of the cited violations, I asked for whatever consideration the hearing officer could give. The extent of this “consideration” will be based on a number of factors, including but not limited to your OSHA history, the magnitude of the violation, and what you are now doing and will continue to do to keep your employees safe, and timely corrective actions you took between the inspection and Informal Conference. Accordingly, if you were cited for lack of a specific safety training (i.e. fall protection training), bring copies of fall protection training records and other safety training rosters with participants’ printed names and signatures. 
25. If an employee or subcontractor’s employee repeatedly violated an OSHA standard or generally-accepted safe work practice, bring a copy of current and prior disciplinary memoranda evidencing your long-standing safety disciplinary program.  
26. At the end of the Informal Conference the hearing officer will detail terms of a settlement agreement. If you perceive these to be fair, sign the agreement and arrange to pay the fine or opt for a payment plan. 
27. If however you have convincing evidence that one or more citations are factually inaccurate, submit a “contest letter” with a request to schedule an administrative hearing. The OSHA hearing officer will generally help you with the wording. 

IF AND WHEN OSHA RETURNS (OR DOESN’T RETURN)

28. OSHA may or may not return to your jobsites. Hopefully you will be higher on the learning curve after the first inspection. However, it might not be a bad idea to either enroll in OSHA’s voluntary consultation and inspection program, an industry-sanctioned inspection program and have your safety officer perform regular unannounced “mock OSHA” inspections, with a “how did we do?” discussion after the inspection, asking participants to comment and recommend  corrective actions.  

Given that construction can be inherently high risk, there exists a high probability that OSHA will visit a jobsite at some point after the Informal Conference. The bigger the project, the greater the probability of an OSHA inspection. You can look at an inspection as an annoyance, as disruptive, and as counterproductive, or you can look at inspections as a learning experience and an integral part of your efforts to keep employees and subcontractors’ employees safe. I subscribe to the latter, as I know that my clients emerged from OSHA inspections at times a bit poorer, but certainly better informed and more enlightened. 

I want to thank all the OSHA Compliance Officers I have had the opportunity to get to know. I have found them fair, generally even-handed, and passionate about protecting workers.   

About the Author:

Bob Tuman is president of CCR Safety Consulting in California, providing safety consultation to construction contractors and performing Workers’ Compensation and General Liability Loss Control Surveys for property and casualty insurers. For further information or to contact CCR directly, please contact: 805-545-5976 or email bobtuman@gmail.com