Guess who's coming to dinner Featured

6:27am EDT July 28, 2003
OSHA inspectors can and do show up at the door of many businesses uninvited, and you have to let them in.

But depending on why and how OSHA picked your company to visit that day dictates your rights and responsibilities.

"In Cleveland, most OSHA site inspections are because an employee or relative of an employee files a complaint, and all complaints must be followed up on at some level," says James Koewler, an OSHA and environmental attorney at Kahn Kleinman.

There are three main reasons OSHA makes a visit: It will investigate a formal or informal complaint; it will investigate after a fatal or catastrophic accident (FAT CAT); and it visits randomly chosen facilities based on industry and injury rates.

Informal and, at times, even formal complaints can be resolved without an OSHA site visit. OSHA notifies the company of the alleged hazardous situation and requires follow-up documentation that the problem has been taken care of.

However, when a business is randomly selected, OSHA conducts a wall-to-wall inspection.

"Companies and industries with historically higher injury and illness rates are more likely to be inspected," Koewler says.

OSHA is require to inspect worksites after a fatal catastrophe or if three or more employees stay overnight in the hospital. These inspections have priority status, but unlike a wall-to-wall inspection, are limited to the site of the accident.

"Employers need to hold the inspectors to seeing only what they came to see ... other machines and sites are not fair game," Koewler says.

He warns businesses not to be intimidated.

"They will always ask for more than they can get," he says.

An employer's rights during an OSHA inspection are covered by the same plain sight rule that covers a criminal investigation. That means that if an inspector observes any violation not covered in the complaint while at the site, the business can be written up.

To prevent being cited for other violations, make sure you have at least two point people ready to take the inspectors out the door and through the snow if necessary to get to the area they came to inspect.

"Don't walk them through the plant where they could see something," says Koewler.

OSHA inspectors have the right to question employees during a site visit, and employees have the right to have that discussion in private. However, employees can opt to have someone with them during the conversation, including a manager, a lawyer or union representative.

"When the inspectors come in, there is a high intimidation factor, especially when it comes to talking to employees," Koewler says.

Employee interviews should be conducted in a conference room, off the shop floor, and the company should conduct a follow-up interview with employees OSHA speaks with after the inspection.

The fact is, says Koewler, "If they are coming in for a complaint, they will probably cite you. But never admit wrongdoing. And if you can make changes, do it right there on the spot."

After both the wall-to-wall and site inspection, OSHA follows up by sending a summation of the citations via certified mail, and from that time, the company has 15 working days to appeal.

"Never miss the 15-day deadline to appeal," says Koewler. "Extensions are rarely granted, and if you don't challenge the findings, they become law."

Koewler says there's always an opportunity to correct a mistake or explain extenuating circumstance surrounding an OSHA finding, but only in the time allotted. How to reach: Kahn Kleinman, (216) 696-3311 or www.kahnkleinman.com


Most wanted

"An OSHA inspection is like a surprise test at school," says James Koewler, an OSHA and environmental attorney at Kahn Kleinman.

Random visits by OSHA inspectors can't be predicted, but here are things to watch out for if OSHA gives your company a pop quiz.

The top 15 most commonly cited hazards:

1. Electrical systems general requirements

2. Wiring methods and components

3. Wiring design and protection

4. Abrasive wheel machinery

5. General safety requirements for machines

6. Use of equipment

7. Flammable and combustible liquid

8. Walking working surfaces

9. Medical services and first aid

10. Floor and wall opening guards

11. Hazard communications

12. Portable wood ladders

13. Transmission apparatus (mechanically powered)

> 14. Requirements for woodworking machinery

15. General personal protective equipment