Dreux advised having two major goals when it comes to managing an OSHA inspection.

“The first is how you manage your risk of liability. Very often, an incident leads to lawsuits or other problems,” he said. “The second is how you do it in a way that you don’t get OSHA angry at you, because it’s never any good to spit on the umpire.”

Unfortunately, Dreux said, the enforcement horizon with OSHA is darkening. By August of this year, penalties for a serious violation will increase from $7,000 to $12,500, and penalties for willful and repeat violations will increase from $70,000 to $125,000. In addition, OSHA recently worked out a memorandum of understanding with the U.S. Department of Justice (DOJ) so that OSHA will refer cases to the DOJ whenever it thinks there may be criminal activities at a work site. A referral may result in the DOJ’s investigators visiting the site, which can lead to criminal charges, such as reckless endangerment.

“It’s clear there’s a lot of risk on the horizon, but there are ways that risk can be minimized,” Dreux said.

Dreux’s first tip is to not assume the OSHA compliance officer knows how your processes work. In fact, don’t even assume he or she knows the fundamentals of process safety.

“I have deposed more than 400 compliance officers, and it’s stunning what they don’t know, so don’t just give them the benefit of the doubt,” he said. “When you’re first talking with them, ask them about their background and experience. Be very polite and helpful, but recognize that compliance officers are not infallible, and they’re not experts on your business.”

FOUR PRINCIPLES

Dreux offered four major principles to help manage an OSHA inspection.

1. Control the flow of information — First impressions are lasting impressions.

“I’ve had inspections that have gone on for two hours, after which the compliance officer has ended the inspection and said, ‘This is a great facility, I don’t need to spend any more time here,’ Dreux said. “And I’ve had inspections go the other way, in which the compliance officer has said, ‘This place is a disaster. Tomorrow we’re showing up with a team of four.’ So, you want to control the flow of information and try to create a positive impression right away.”

According to Dreux, an important step here is to appoint a spokesman to accompany OSHA’s personnel. Make sure the person is willing and able to answer the inspector’s questions. You have a right to be physically present with OSHA reps wherever they go throughout the facility, and this escort should be someone who is well-versed in the company’s processes and is a good communicator. It doesn’t necessarily have to be the plant manager or the director of engineering, but it does have to be someone who can clearly explain: “This facility is safe for these reasons.”

2. Manage the tension — There’s no way around the fact that an OSHA inspection can be a tense situation. OSHA is there to issue citations, and some employers mistakenly think they have a great relationship with OSHA and that the inspection will be a non-event. But the perception of a great relationship with OSHA can turn south quickly.

“If a high-profile incident occurs, it doesn’t matter how good the facility is, it’s going to get hammered. It’s just the way it is,” Dreux said. “The analogy I use is that OSHA is like a pet snake — as much as you might like it, there’s always the risk that you’re going to get bitten.”

Given that, how can the tension of an inspection be managed? By focusing on the strengths of the company’s safety and health program and the measures in place to prevent or minimize an incident. Moreover, periodically ask OSHA where it has any concerns based on what it has learned during the inspection. This gives management an opportunity to address a concern before it becomes a citation and clear up any misperceptions the compliance officer may have about the program.

3. Be cordial and professional, but defend your good practices — Dreux strongly advised being polite and proficient at all times throughout an inspection, but suggested politely pushing back when talking to OSHA about performance standards, such as process safety management (PSM), lock out/tag out, and hazardous waste operations and emergency response (HAZWOPER). These performance standards give facilities an engineering goal to achieve, but operators have discretion in how to get there.

“OSHA may not understand the specific way the company achieved the goal, so explain it to them,” Dreux said. “Tell them, ‘We achieved safety this way.’ With each sentence you speak to them, say, ‘We are safe because.’ Push that. You’ll be amazed at how effective you can be in explaining good practices and avoid the issuance of proposed citations.”

4. Be prepared — There are a number of steps that can be taken before the inspectors arrive to ensure the facility and company staff are well-prepared for OSHA’s visit. These include making sure employees are well-versed in the company’s procedures and preparing the facility for the inspection.

For example, if by planning the route the inspectors will take, staff will have an opportunity to do a quick audit before they arrive. If there are fire extinguishers that don’t have correct dates on them, replace them. If employees are not wearing the proper personal protective equipment, correct them. Walk the facility and try to look at it through an inspector’s eyes. By looking for and correcting small things, management can prevent little citations and create a positive impression.

We’ll talk more about preparation, and handling the actual visit, in part 2 of this article.

Mark S. Dreux is head of the OSHA group for Arent Fox, a Washington, District of Columbia-based law firm. Dreux focuses on representing employees and training associations in all aspects of the Occupational Safety and Health Act. His practice includes counseling clients in regulatory compliance with OSHA standards and regulations, investigation into significant workplace accidents or incidents, managing OSHA inspections, contesting OSHA citations, defending employers in OSHA enforcement actions, conducting safety and health audits and due-diligence reviews, and engaging in regulatory advocacy. He can be reached at 202-857-6405 or mark.dreux@arentfox.com. For more information, visit www.managing-osha.com.

Publication date: 7/4/2016

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