How to Prepare for an OSHA Inspection - Part II: The Opening Conference and Record Requests

by Rod Smith and Patrick Miller

As part of an ongoing series, OSHA Update is providing information to employers on how to prepare for an OSHA inspection. Last month, we addressed: "Selecting a Company Representative". This month we discuss the Opening Conference and responding to OSHA document requests.

The Opening Conference

Most OSHA inspections start with an unannounced visit by a compliance officer and an Opening Conference. The purpose of an Opening Conference is to discuss what will happen during the inspection. Use the Opening Conference as an opportunity to start managing the inspection. Here are some tips:

• Ask to see the inspector's official credentials if he or she does not offer them.
• Identify your company representatives designated to supervise the inspection. Inform the inspector that he or she should coordinate all inspection activities through your representative, no one else.
• Don't be afraid to ask questions. Ask why your facility or worksite was chosen (employee complaint, referral by another agency, etc.). Ask to see a copy of the written complaint if there is one.
• Confirm with the inspector what he or she wants to see and do, and how long he or she expects to be at your workplace. Be courteous, but keep the inspection moving towards completion.
• Reach an understanding that the inspection will be limited to the areas or conditions listed in the complaint or referral. For example, if an employee files a complaint about defective forklifts in the warehouse, then the inspection should be limited to forklifts in the warehouse, not other areas. The OSHA inspector will usually investigate other observed violations in "plain view" during the investigation, but politely object if the inspector wants to expand a limited investigation into a lengthy "wall-to-wall" inspection.
• Discuss any safety issues that may be encountered during the inspection, including personal protective equipment required by your company. Require the inspector to abide by all company safety rules.
• Identify areas in the workplace or documents that might reveal confidential trade secrets and get the inspector's confirmation that photographs of confidential areas or documents will be noted as "trade secret" in OSHA's file. Send a confirming letter or email if necessary.
• Take good notes of all matters discussed at the Opening Conference.

Records Requests

During the Opening Conference, or some time during the inspection, the inspector will ask to see certain records and documents. To avoid later misunderstandings, it is a good practice to have OSHA put these requests in writing or an email. Make sure you understand when and where OSHA wants the documents to be produced. As a general rule, do not volunteer documents not specifically requested.

In responding to document requests, distinguish between records required to be maintained and produced under OSHA's standards and those that are not. As to required documents, you are required to produce, as examples, your official injury and illness logs (OSHA 300, 301, 300A) or your Hazard Communication Program. Failure to produce the required records on a timely basis may result in citations and penalties. The company representative should be familiar with required records and be ready to produce them as requested.

Production of records not required by OSHA's standards is another matter. By complying with such requests, you are possibly helping the inspector to find and document violations, expand the investigation, or provide damaging evidence against your company. As to these documents, the better practice is to defer all requests until you have had a chance to look the documents over and/or review them with upper management or legal counsel. Objections may be made on the grounds that OSHA's request is overly burdensome (too much time and effort to comply), irrelevant to the investigation or legally protected from disclosure.

Before producing any records, make sure that they are complete and accurate. For example, are your OSHA 300 forms completely filled out? Are they accurate? Make corrections as necessary before producing the documents. Finally, keep a copy or a list of all documents provided.

Next month, OSHA Update will address OSHA's "Walk-around" inspection and employee interviews.

Who We Are
Rodney Smith, Pat Miller, and Chuck Newcom are part of Sherman and Howard's Labor & Employment Law Department practicing in the areas of occupational safety and health law. We routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.

For more information please contact one of the members of the OSHA Practice Group: