BY Travis Vance, Regional Managing Partner, Co-chair of Fisher Phillips’ Workplace Safety and Catastrophe Management Practice Group, Fisher Phillips, and Kevin Troutman, Senior Counsel, Fisher Phillips
With maximum limits for Occupational Safety and Health Administration (OSHA) penalties increasing every year – currently over $15,000 for serious/other than serious citations and more than $150,000 for a repeat and willful – knowing what to do when OSHA arrives at your door is more important than ever. That’s the purpose of this four-part series: to cover the most important things Texas healthcare employers can do when OSHA arrives at one of their facilities. These threshold steps will likely prevent citations, minimize the penalties issued, and narrow the scope of OSHA’s 
inspection.
Our first two threshold tips were:
- Part One (previously published here): Don’t permit OSHA to interview any manager or supervisor on the day the agency arrives.
- Part Two (previously published here): Don’t give federal OSHA any documents other than your OSHA 300 logs, 300A summaries, 301 forms, and relevant safety data sheets (SDS) on the first day of the inspection.
And now, our third threshold tip or “Part Three” is: Take the OSHA inspector straight to and straight from the area of the referral, complaint, or even the pertinent area of an emphasis program inspection.
Why is it Important to Limit Where Investigators Go?
OSHA inspections are subject to the plain view doctrine. This means that you can be cited for each violation an OSHA inspector observes while at your facility. Healthcare facilities are dynamic and often unpredictable environments; thus, you never know what safety violations could be discovered in real time during the walkaround portion of the inspection. Thus, you should limit the area seen by taking the inspector directly to and from the area at issue in the inspection.
You are not trying to hide anything, but rather limiting the number of safety violations they could ostensibly write up.
Where Can OSHA Go in Your Facility During an Inspection?
OSHA can enter your worksite in two ways: either with a warrant, where a judge or magistrate determines the scope of an inspection, or with your consent, when you determine the scope and direction of the investigation. We nearly always recommend permitting a consent-based inspection. This option gives your control of the inspection, including when and where the OSHA inspector visits at your facility.
During the opening conference (when OSHA first arrives to discuss the purpose of the inspection), you should be professional and courteous with the OSHA inspector. But also politely assert your rights, especially when discussing the scope of the inspection. In nearly every state – including Texas – an OSHA inspector can only visit the portions of your facility that are pertinent to the complaint, referral, and emphasis program on which the inspection is based. Keep OSHA to that scope.
Take them directly to the area of the facility relating to the basis of the inspection, and nowhere else. This includes, when reasonable and appropriate, taking them around to the back of your facility and entering through a remote entryway to view only pertinent areas. Everything OSHA sees during an inspection is fair game. Whether it is your maintenance employee not wearing their safety glasses or a damaged or unilluminated exit sign, OSHA can and will cite you for it. There is absolutely no reason to take the OSHA inspector on a field trip during non-pertinent areas of the facility. In addition to the risk of additional citations, this decision will also lead to a loss of your time and resources, as the inspection likely will take much longer than if narrowed.
What Else Should You Do and Not Do During the Walkaround?
Keep in mind that everything you say to an OSHA inspector can bind the company – and will be used by OSHA to cite the company. This pertains to any manager or supervisor, including any employee who can hire, fire, discipline, or lead work, and also to anything said during the walkaround or any other time. Be professional with OSHA, but don’t allow the inspector to interview you substantively during the walkaround. Cordially ask that substantive questions be asked during a formal interview with OSHA, which can be scheduled after you have time to prepare for and understand the facts surrounding the basis of the inspection.
Take the same photos, videos, and sampling as OSHA during the walkaround. During the opening conference, politely ask that the inspector inform you prior to taking a photo or video, so you can capture the same shot during the inspection.
If there are issues concerning confidentiality or proprietary information/equipment/processes, discuss those topics during the opening conference and take appropriate steps to limit or eliminate subsequent production by OSHA of those items, as well.
Finally, if OSHA wants to conduct sampling or testing during the inspection, such as noise monitoring or a chemical exposure analysis, cordially inform the inspector that that sampling will not occur until you have an industrial hygienist or other expert present to conduct side-by-side sampling. If not, you will never be able to duplicate the conditions captured by OSHA.
Conclusion
Texas employers are subject to federal OSHA inspection procedures and requirements, and thus, healthcare facilities within the state need to be fully prepared and understand their rights when OSHA shows up at their door. And the above discussion should serve as an important reminder to the state’s healthcare employers that they have every right to limit where OSHA investigators go within their facility to protect themselves from the risk of additional citations.