OSHA Inspections and Your Walkaround Rights

Inspector authority

OSHA's inspectors are called Compliance Safety and Health Officers. Under the inspection rules, they are authorized to:

They may also take environmental samples and photographs related to the purpose of the inspection, and attach personal sampling equipment such as dosimeters, pumps and badges to employees to monitor their exposures.

Reference: 29 CFR 1903.3(a) · 29 CFR 1903.7(b)

How an inspection unfolds

An inspection has a typical order.

Opening

At the beginning of an inspection, the officer presents credentials to the owner, operator, or agent in charge at the establishment, explains the nature and purpose of the inspection, and indicates generally the scope of the inspection and the records the officer wants to review.

The walkaround

A representative of the employer and a representative authorized by the employees must be given an opportunity to accompany the officer during the physical inspection, to aid it. The next section covers this in detail.

Questions to employees

The officer may question privately any employer, owner, operator, agent or employee.

Closing conference

At the end of the inspection, the officer confers with the employer or its representative and informally advises of any apparent safety or health violations found. The employer has an opportunity to bring pertinent information about workplace conditions to the officer's attention.

Reference: 29 CFR 1903.7(a) · 29 CFR 1903.7(e) · 29 CFR 1903.8(a) · 29 CFR 1903.3(a)

Advance notice is the exception

The general rule is no advance notice. Advance notice may be given only in these situations:

• Apparent imminent danger, so the employer can abate the danger as quickly as possible
• When the inspection can most effectively be done after regular business hours, or special preparations are necessary
• When needed to assure the presence of representatives of the employer and employees, or the personnel needed to aid the inspection
• Other circumstances where the Area Director determines that notice would make the inspection more effective and thorough

When advance notice is given, the employer is responsible for promptly notifying the authorized representative of employees, if the employer knows who that is.

Reference: 29 CFR 1903.6(a) · 29 CFR 1903.6(b) · 29 CFR 1903.6(a)(1) · 29 CFR 1903.6(a)(2) · 29 CFR 1903.6(a)(3) · 29 CFR 1903.6(a)(4)

If entry is refused

If an employer refuses to let the officer enter, inspect, review records, question people, or let employee representatives accompany the officer, the officer terminates the inspection or confines it to areas where no objection is raised, and reports the refusal to the Area Director. The Area Director consults the Regional Solicitor, who takes appropriate action, including compulsory process, if necessary.

In plain terms: refusing does not make the inspection go away.

Reference: 29 CFR 1903.4(a)

Who walks with the inspector

The officer is in charge of the inspection and of questioning people. Two representatives get an opportunity to join the physical inspection to aid it:

• The officer may permit additional representatives of either side if the officer decides they will further aid the inspection
• A different employer and employee representative may accompany the officer during each different phase of the inspection, if this will not interfere with the conduct of the inspection

Reference: 29 CFR 1903.8(a)

Employee or outside representative

The employees' representative can be a coworker or a third party.

When the representative is not an employee of the employer, that person may accompany the officer if, in the judgment of the officer, good cause has been shown why a third party is reasonably necessary for an effective and thorough physical inspection. Good cause includes, but is not limited to, the third party's relevant knowledge, skills or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.

Reference: 29 CFR 1903.8(c)

Limits, disputes and trade secrets

• The officer may deny the right of accompaniment to any person whose conduct interferes with a fair and orderly inspection
• The officer has authority to resolve all disputes about who is the representative authorized by the employer and by the employees
• If there is no authorized employee representative, or the officer cannot tell with reasonable certainty who it is, the officer consults a reasonable number of employees about safety and health in the workplace
• If the employer asks, in an area containing trade secrets the employees' representative must be an employee in that area or an employee authorized by the employer to enter it

Reference: 29 CFR 1903.8(b) · 29 CFR 1903.8(d) · 29 CFR 1903.9(d)

Telling the inspector what you know

During an inspection, the officer may consult with employees about safety and health to the extent the officer thinks necessary for an effective and thorough inspection.

Separately, any employee shall be afforded an opportunity to bring to the officer's attention any violation of the Act that the employee has reason to believe exists in the workplace.

Reference: 29 CFR 1903.10

Asking OSHA for an inspection

An employee, or a representative of employees, who believes a violation exists in the workplace where the employee works may request an inspection by giving notice to the Area Director or to an officer.

• The notice must be in writing, set out the grounds with reasonable particularity, and be signed by the employee or representative
• The employer gets a copy, but if you ask, your name and the names of employees mentioned must not appear in that copy or on any record the Department of Labor publishes, releases or makes available
• If the Area Director finds the complaint meets the requirements and there are reasonable grounds to believe the violation exists, an inspection is made as soon as practicable, and it is not limited to the matters in the complaint
• Before or during an inspection, employees or their representatives may also give the officer a written notice of a violation they believe exists
• If the Area Director decides an inspection is not warranted, the complaining party is notified in writing

Reference: 29 CFR 1903.11(a) · 29 CFR 1903.11(b) · 29 CFR 1903.11(c) · 29 CFR 1903.12(a)

You are protected for speaking up

Every employer must post a notice from OSHA telling employees about their protections and obligations under the Act. If your employer has copies of the Act, regulations and applicable standards, the employer must make them available on request to you or your authorized representative to review in your workplace on the same day, or at the earliest time convenient to you and the employer.

Reference: 29 CFR 1903.11(d) · 29 CFR 1903.2(a)(1) · 29 CFR 1903.2(c)

Citations

After the inspection, the Area Director reviews the officer's inspection report. If, on the basis of the report, the Area Director believes the employer has violated a requirement, the Area Director issues the employer either a citation or a notice of de minimis violations.

• It is issued with reasonable promptness after the inspection ends. No citation may be issued after 6 months following the occurrence of the alleged violation
• Fixing the problem right away does not stop a citation: an appropriate citation is issued even if the employer immediately abates, or starts to abate, the alleged violation
• A citation describes the nature of the alleged violation with particularity, refers to the provision alleged to be violated, and fixes a reasonable time for abatement
• If the inspection came from an employee's request or notification, a copy of the citation is sent to the employee or representative who made it
• Every citation states that issuing it is not a finding that a violation occurred unless it is not contested, or, if contested, it is affirmed by the Review Commission

Reference: 29 CFR 1903.14(a) · 29 CFR 1903.14(b) · 29 CFR 1903.14(c) · 29 CFR 1903.14(e)

Posting and contesting

Posting

When a citation arrives, the employer must immediately post it, unedited, at or near each place an alleged violation occurred, and make sure it is not altered, defaced, or covered. Where that is not practicable, it is posted unedited in a prominent place where affected employees can readily see it. It stays posted until the violation is abated, or for 3 working days, whichever is later.

Contesting

• An employer that wants to contest a citation or proposed penalty gives written notice to the Area Director. The notice must be postmarked within 15 working days of receiving the notice of proposed penalty
• An employee or representative of employees may also file a written notice with the Area Director saying the time allowed to fix the violation is unreasonable

Reference: 29 CFR 1903.16(a) · 29 CFR 1903.16(b) · 29 CFR 1903.17(a) · 29 CFR 1903.17(b)