Construction Law Blog

We previously discussed on the blog what to do before an OSHA inspector arrives on site.  But what should a contractor do during an OSHA inspection?  The following are several tips that will help an OSHA inspection go as smoothly as possible.

1.        Be cooperative.

A cooperative attitude may help.  While ensuring that an inspector shows his credentials on site is perfectly acceptable, obstructing an inspection may result in criminal penalties and/or raise suspicions of an inspector who may thereafter look for additional violations or ensure that follow-up inspections are performed.  Alternatively, adopting a cooperative and cordial attitude may result in less worksite disruption and foster a good relationship with the inspector, who has a fair amount of discretion when assessing penalties.  If a penalty reduction for good faith is available,  a cooperative attitude may factor into such a reduction.

However, requiring an inspector to acquire a warrant may be appropriate in certain situations where there are doubts about the validity of the inspection or the reasonableness of the time and/or manner.  In such instances strongly consider any decision to require a warrant or seek a protective order to modify the scope or timing of an inspection.  Don’t hesitate to contact counsel to assist in this process.

2.        Find out what the inspector wants. 

Is the inspector on site for a particular purpose?  If an inspector specifically wishes to investigate a particular area rather than the entire work site, this is valuable information.  In more extreme situations, this information may also factor into the decision of whether to seek a protective order or require a warrant.

3.        Accompany the inspector and document the inspection along with the inspector.

Make sure that an employer representative accompanies the inspector during his or her inspection.  An employer does not want to be put into the position of trying to ascertain what facts the inspector is relying upon after being cited.  An employer representative should ask questions and document the inspection along with the inspector.  Where an inspector takes photographs or video footage, the employer representative should place him or herself to photograph or take video of exactly what the inspector is viewing.  This information may prove invaluable to an employer in building a defense. 

4.        Don’t hesitate to contact counsel.

Effective legal counsel can provide valuable advice regarding an employer’s strategy during an informal conference—including how to avoid admissions that may later be used against an employer and what route to take with an inspector on site.