Three Key Questions About OSHA Inspections

By Anthony David Tilton, Cotney Construction Law.

OSHA will investigate a jobsite for a number of reasons.

A representative from OSHA will show up if an employee has issued a complaint against you, if there is a recent fatality, or if there is an imminent threat they have identified. The dangers of fall-related injuries in the industry have been well documented, and this has prompted inspectors in your area to be on the lookout for roofers. Additionally, roofers are the easiest to cite due to the fact that roofing is a highly visible construction trade and an inspector does not have to use much effort to determine the likelihood of a dangerous situation that needs inspecting.

OSHA inspections can be stressful, but they can be less stressful if you know your rights and the proper procedures to follow during an inspection. Here are the answers to the most common questions I encounter when it comes to OSHA inspections.

Question #1: Do I have to comply, and what happens if I refuse OSHA access?

First and foremost, you need to know that OSHA has a legal right to inspect your jobsite. OSHA has what is called “administrative probable cause” to inspect and investigate your project. OSHA’s probable cause is more easily obtained than that of other agencies. An officer of a city, state, or federal law enforcement agency needs a much more specific probable cause to enter a private citizen’s property. This is not the case with OSHA. When an active construction project is taking place, there is an inherent risk of danger and injury, and this gives OSHA all the administrative probable cause they need.

This is not to say that you and your site superintendent do not have the right to deny OSHA access to the project and demand that they get a warrant. The site superintendent has the option to consent to OSHA’s inspection or deny them access to the project. The superintendent is well within his or her rights to tell the inspector to get a warrant. However, if you tell OSHA to get a warrant, they most certainly will. Because of OSHA’s broad power to oversee safety within the United States, they can obtain a warrant from a judge or magistrate. Once OSHA obtains a warrant for a site inspection, their inspection can become much more invasive. This means that OSHA inspectors can get permission from a judge to examine documents, conduct extensive interviews, and also perform scientific tests on items such as air quality, presence of combustible material, or any other danger.

The bottom line is that it is rarely a good idea to tell an OSHA compliance officer to get a warrant. The reasoning behind this has to do with the scope of OSHA’s inspection rights under the Code of Federal Regulations (CFR). The CFR demands that OSHA’s inspection be “reasonable.” This essentially means that they are limited to inspect only the workers, equipment, and materials which are within “plain sight.” “Plain sight” is a doctrine borrowed from criminal law and the Fourth amendment, which says that a government agent may not sample or manipulate anything that is not within his or her reasonable line of sight. If an agent violates this doctrine, it is possible that all the information they obtained during the inspection may be suspect.

Question #2: What should I do during the inspection, and are there areas I can prevent OSHA from viewing?

When OSHA is on site, the superintendent should remain alert, aware, and advocate for his or her company. The superintendent has specific rights granted to them under the CFR, and they must use those rights in order to protect themselves, the business, and the men and women who rely on that business for their livelihood.

The superintendent has the right to accompany the inspectors wherever they go on site, and he or she should do so. The inspector should be followed on the roof, through the rafters, and wherever else they intend to go. The superintendent also needs to ask a few key questions of the inspector and needs to ask them often. Mainly, he or she needs to know why OSHA is there. What is the scope of their investigation? What specifically are they there to see? Once the superintendent knows what OSHA wants, he or she can then limit them to what they can see. If an inspector attempts to go outside that scope, then the superintendent needs to notify them immediately.

Question #3: What happens during the inspection?

During the inspection, the OSHA compliance officer will make a walkthrough of the project. The inspector’s main focus is usually on fall protection equipment and fall protection practices of the crew. Always make sure every harness, rope, and lanyard on site is properly maintained. If a harness has been previously impacted, it does not need to be on a jobsite. Such equipment should be discarded and replaced. Roofers are cited far too often because an old harness or frayed rope stays on a truck when it should have been discarded. This is an easy citation to avoid. Throughout the inspection, the OSHA officer may perform brief interviews with the crew and question crew members on various issues relating to the inspection. OSHA has the right under the CFR to perform these interviews in private, away from the superintendent. Although the questioning can be private, it must also be brief. The superintendent needs to object to any questioning that goes on for an excessive amount of time.

Next, an OSHA inspector may ask to interview the managers and superintendents on site. This is a common practice, and OSHA inspectors are within their rights granted by the CFR to request such an interview; however, company managers have the right to refuse an interview without counsel present. This is important to remember because poor statements about safety from a crewman can hurt your case, but poor statements about safety from a supervisor can destroy your case. The only discussion going on between a supervisor and an OSHA compliance office during the walkthrough inspection should involve the scope of the inspection. The superintendent should not answer any questions regarding safety protocols, equipment, or practices without the assistance of counsel. If OSHA wants to speak with a manager, supervisor, or superintendent, they must do so with an attorney present. Paying for a lawyer may be expensive, but paying for a “willful” OSHA citation can bankrupt a roofing company.

Remember Your Rights

An OSHA inspection can be a trying and frustrating time. A roofing contractor’s best defenses against costly citations are to teach satisfactory safety techniques within the crew; update and maintain the required safety equipment; ensure everyone is aware of the jobsite-specific safety plan; and remember their rights when OSHA visits the jobsite.

About the author: Anthony Tilton, Partner at Cotney Construction Law, focuses on all aspects of construction law and works primarily on matters relating to OSHA defense. Cotney Construction Law is an advocate for the roofing industry and serves as General Counsel for FRSA, RT3, NWIR, TARC, WSRCA and several other roofing associations. For more information, visit www.cotneycl.com.

Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

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Read the original article: Roofing, July 17, 2019