November 2007

OSHA IS WATCHING YOU: HANDLING A SPOT INSPECTION OF A CONSTRUCTION SITE

Inspecting construction sites for safety violations is a priority issue with the Occupational Safety and Health Administration (OSHA). As proof of this, OSHA compliance officers who are driving by a worksite can initiate an inspection on the spot when they believe they see a dangerous condition.

Despite this practice, many employers have become somewhat complacent about certain aspects of their day-to-day operations. Some of this complacency stems from the Occupational Safety and Health Review Commission’s recent ruling in Secretary of Labor v. Summit Contractors, Inc., which has resulted in some employers becoming less vigilant as to whether subcontractors are violating safety procedures. The ruling in Summit Contractors said that on construction sites, only the employer whose own employees are exposed to the hazard, or the employer that caused the hazardous condition that violates an OSHA standard, can be cited per 29 CFR 1910.12. OSHA is currently appealing this ruling in the 8th Circuit U.S. Court of Appeals. Pending appeal, OSHA said it would continue its previous policy of multi-employer citation for a hazard violation.

The ruling in Summit Contractors only applies to federal OSHA construction; it doesn’t affect non-construction employers and contractors, or state-plan states. The ruling does not prevent civil suits from being brought against employers.

Other areas in which employers find themselves vulnerable to citation are:

• Failing to have fall protection.
• Trenching and scaffolding violations.
• Exposing employees to lead, cadmium and silica in demolition projects.
• Failing to ensure that employees use the required personal protective equipment (PPE).

So, what should you do if an OSHA inspector shows up at your construction site because of a visible violation? Here are some guidelines to follow:

• Take the same photographs that the OSHA inspector takes.
• Write notes about everything that is said.
• Don’t admit to a violation if the inspector says there is one, because this may be held against you. Instead, thank the inspector for the information.
• Never demonstrate equipment or give any unspecified information.
• If the inspector asks to see your records, try to get a list of the requested items in writing to prevent any misunderstanding. However, you should provide material safety data sheets and safety procedures without hesitation if asked.
• Keep in mind that an inspector can ask to speak to your employees. However, an inspector can’t pull employees off equipment or out of excavations to talk with them. Employees have the right to refuse to speak to the inspector, and to be photographed or recorded. Employees also have the right to have someone present with them while speaking to the inspector.
• Discuss abatement and timetables at the end of the inspection. Ask to have the timetables adjusted if they aren’t practical. OSHA can modify citations. However, you must contest any citation or proposed penalties in writing within 15 days.