What is in this article?:
- Exploring the Limits of OSHA's Inspection Authority: A Precursor to Exercising Your Rights
- Maximizing the Utility of the Opening Conference
This article answers many of the questions that are likely to come to mind should you be so unlucky as to get the proverbial “knock on the door” by OSHA to conduct an inspection.
If an OSHA inspector, known as a compliance safety and health officer (CSHO), arrives at your door, presents his or her credentials, and asks for you to consent to an inspection of your workplace, what do you do? If you consent, what should you expect to happen next? And if you refuse to consent, then what? Obviously it would be wishful thinking to conclude that the CSHO would simply leave, bid you good day and never come back.
These rather elementary questions are among the many questions you will need to answer before, during and after an OSHA inspection. In order to answer these questions in the face of an OSHA inspection in an informed, prudent manner, it is critical to have an understanding of the limits of OSHA’s inspection authority and a clear understanding of the process.
In other words, what is OSHA permitted to do and, also, what are your rights? This article answers many of the questions that are likely to come to mind should you be so unlucky to get the proverbial “knock on the door” by OSHA and aims to provide you with the knowledge and insight necessary to confidently assert your own rights during an inspection.
To Consent or Not to Consent
… That is the (first) question. Similar to the protections that we have all come to expect and enjoy in our own homes and individually, employers are entitled to Fourth Amendment protection against unreasonable searches and seizures of their workplaces. As a result, prior to conducting an inspection, the CSHO generally needs one of two things: a warrant or your consent to the inspection.
In most cases, the CSHO will arrive without a warrant. Since the CSHO is dependent on your consent for the inspection to proceed, this provides an opportunity (prior to consenting) to negotiate a reasonable scope and reasonable conditions for the inspection. If you succeed in this regard, it would usually be advisable to consent. Indeed, if you don’t consent, you risk the loss of any potential “good will” that could have otherwise been created during the process and also lose control over the scope of the inspection.
In addition, it may be a signal to OSHA that you have something to hide.
Importantly, an employer has the right to request that the inspection not proceed until a specific employer representative appears at the site. For example, this could be a safety officer or other employee trained in OSHA. According to OSHA’s Field Operations Manual, a delay of approximately one hour for a specific employer representative to get to the site is reasonable.
Finally, if the CSHO is unwilling to negotiate a reasonable scope for the inspection, you believe that no basis exists for probable cause (this is unlikely), and/or you need additional time (for example, your designated representative for the OSHA inspection cannot get to the site in one hour and the CSHO refuses to wait), you might consider insisting that the CSHO obtain a warrant. It will likely take a day or two for the CSHO to return with warrant in hand.