To:           Environmental Health and Safety Coordinator

From:      Sam Celly, BChE MChE JD CSP

Ref:         How to Handle an OSHA Inspection

Date:       April 8, 2025

HOW TO HANDLE AN OSHA INSPECTION

Inspections are always conducted without advance notice.  OSHA conducts inspections of workplaces when they receive a complaint of workplace safety or health hazard or report of a fatality or serious work-related injury or illness. Employers and fire and police departments are required to report such serious accidents to OSHA. OSHA may also conduct targeted inspections without a complaint or accident report, or whenever the inspector sees a workplace hazard in plain view. However, there are special circumstances under which OSHA may give notice to the employer, but such notice will normally be less than 24 hours. These circumstances include the following:

• Inspections due to imminent situations that are dangerous and require immediate correction.
• Accident investigations where the employer has notified an agency of a fatality or catastrophe.
• Inspections that must take place after regular business hours or that require special preparation.
• Cases where notice is required to ensure that the employer and employee representative or other personnel will be present.
• Cases where aninspection must be delayed for more than 5 working days for good cause.
• Situations in which the OSHA Area Director determines that advance notice would produce a more thorough or effective inspection. Employers who receive advance notice of aninspection must inform their employees’ representative or arrange for OSHAto do so. In certain circumstances, the employer may demand a search warrant (See US Constitution Fourth Amendment). In high stakes cases where fatality or an amputation is involved, the dealership should seek help of legal counsel and may have their lawyer present during the inspection.

Note 1. As a matter of policy, a 20-minute wait for the OSHA inspector prior to the inspection process is considered acceptable.  Management can alert all responsible managers on the premises about OSHA’s presence and possible involvement in the inspection process.

Note 2. Search warrants for dealers have been an exception rather than the rule. We recommend that the warrant policy be decided ahead of time rather than bringing it up upon arrival of the inspector. Once knowledgeable consent has been given to the inspector, the warrant requirement is considered to have been waived by the employer. Warrants are issued upon probable cause and are limited in scope as to the nature of the complaint against the employer.

OSHA’s INSPECTION PRIORITIES

Imminent Danger. Imminent danger situations receive top priority. An imminent danger is any condition where there is reasonable certainty that a danger exists that can be expected to cause death or serious physical harm immediately or before the danger can be eliminated through normal enforcement procedures. If a compliance officer finds an imminent danger situation, he or she will ask the employer to voluntarily abate the hazard and remove endangered employees from exposure. Should the employer fail to do this, OSHA, through the regional solicitor, may apply to the Federal District Court for an injunction prohibiting further work as unsafe conditions exist.

Serious Injuries and Fatal Accidents. Second priority goes to the investigation of fatalities and accidents resulting in a death or hospitalization.  California has a penalty of $5000 for failure to report within an 8-hour time frame including accidents that occurred on a weekend.  Reportable incidents in California include fatality, any in-patient hospitalization for work related injury or illness, amputation, loss of an eye, or any serious degree of permanent disfigurement.  Federal regulations require that fatalities be reported within 8 hours and in-patient hospitalization, amputation, or eye loss reported within 24 hours.

Complaints and Referrals. Third priority goes to formal employee complaints of unsafe or unhealthful working conditions and to referrals from any source about a workplace hazard. The OSHA Act gives each employee the right to request an OSHA inspection when the employee believes he or she is in imminent danger from a hazard or when he or she thinks that there is a violation of an OSHA standard that threatens physical well-being. OSHA will maintain confidentiality if requested and inform the employee of any action it takes regarding complaints. In certain cases, it may issue a letter requiring the employer to provide proof of compliance. These letters must be replied to OSHA expeditiously with support documents indicating compliance.

Programmed Inspections. Next priorities are programmed inspections aimed at specific high-hazard industries, workplaces, occupations, health substances, or other industries identified in OSHA’s current inspection procedures. OSHA selects industries for inspection based on factors such as injury incidence rates, previous citation history, employee exposure to toxic substances, or random selection. California requires that employers with Workers Compensation Insurance Experience Modification Rate (“X-Mod” or “EMR”) of 125% or higher receive programmed OSHA inspections.

Follow-up Inspections. A follow-up inspection determines if the employer has corrected previously cited violations. If an employer has failed to abate a violation, the compliance officer informs the employer that he or she is subject to “Failure to Abate” alleged violations. This involves proposed additional daily penalties until the employer corrects the violation.

WHAT DOES THE INSPECTION PROCESS INVOLVE?

Inspectors’ Credentials. When the OSHA compliance officer(s) arrive(s) at the establishment, he or she displays official credentials and asks to meet an appropriate employer representative. Employers should always ask to see the compliance officer’s credentials. Employers may verify the OSHA federal or state compliance officer credentials by calling the nearest federal or state OSHA office

Opening Conference. The compliance officer explains the purpose of the visit, how/why the establishment was selected and the likely scope of the inspection, and the standards that apply. Take notes. The compliance officer asks the employer to select an employer representative to accompany the compliance officer during the inspection. This person must stay with the inspector until departure from the company premises.

Limitation on OSHA Inspections. OSHA has limitations on inspection authority when visiting a place of employment. OSHA officers may try to expand the scope of inspection during the visit and, only upon informed consent, may proceed to collect evidence that can significantly increase the violations detected and related penalties. Therefore, it is critical that the employer provide OSHA access only to the location that is related to the underlying cause of inspection.  Such boundaries must be established during the opening conference with the OSHA officer.

In a recent case, the US Court of Appeals limited the scope of inspection available to OSHA.  The case involved an employee who was injured while repairing an electrical panel. The employee was hospitalized, triggering a report to OSHA under federal regulations. OSHA inspected the facility and was granted access by the employer to look at the electrical panel area. Upon request, OSHA inspectors were provided with Injury Log 300 by the employer. Upon review of Log 300, OSHA filed for a search warrant to investigate other locations at the plant where the injuries as reported on Log 300 had occurred. The search warrant was granted.

The employer filed a motion to vacate the search warrant which was granted by the District Court. OSHA appealed the lower court’s decision to the 11th Circuit Court of Appeals. The court’s appeals held that logs are merely records of injuries and not proof of OSHA violations. The mere existence of injuries, the court noted in this case, does not mean that injuries were caused by OSHA violations, nor do they justify the issuance of administrative warrant for gathering evidence of OSHA violations. Recordkeeping regulations as found in 29 CFR Part 1904 state that the recording of injuries on Log 300 does not mean that an employer is at fault or that an OSHA violation has occurred. This decision serves as guidance to employers to limit OSHA inspections to the complaint area. Unless the employer consents, a judicial warrant is required under the Fourth Amendment. If OSHA wishes to expand its search under information procured during initial inspection, the employer should seek legal counsel to limit the inspection as available under the current law. See USA v. Mar-Jac Poultry, Inc., No. 16-17745 (11th Cir. 2018).

Walk-Through. Do not allow the inspector to veer in a direction not agreed in the scope at the opening conference! The compliance officer will observe safety, health conditions, practices; if necessary, take photos, videotapes, and/or instrument readings, examine records; collect air samples; measure noise levels; survey existing engineering controls; and monitor employee exposure to toxic fumes, gases, and dust. Be sure to take split samples for independent analysis from the inspector at the end of the walkthrough.

If the compliance officer finds a violation in open view, called the “plain view exception,” the scope of inspection now incorporates the plain view observation. The employer may shut down the area of the shop where the inspector will walk through.  The compliance officer may wish to interview employees to get their opinion on the workplace accident.  Allow consultation with available employees and employee representatives for the short time that they have available during their work shift (See, for representation, https://www.dol.gov/newsroom/releases/osha/osha20240329). If the officer demands a longer interview process, then the interviews may have to be scheduled after the work hours. In our experience, this rarely happens, i.e., the inspector does not wait beyond 5PM to complete the inspection.

During the inspection, the compliance officer will point out any unsafe or unhealthy working conditions observed. At the same time, the compliance officer will discuss possible corrective actions, if the employer desires. Some apparent violations detected by the compliance officer can be corrected immediately. When the employer corrects them on the spot, the compliance officer records such corrections to help in judging the employer’s good faith in compliance. OSHA may reduce the penalties for some types of violations if they are corrected immediately.

Closing Conference. At the conclusion of the inspection, the compliance officer conducts a closing conference with the employer.  The compliance officer gives the employer, and all other parties involved a copy of Employer Rights and Responsibilities Following an OSHA Inspection for their review and discussion. The compliance officer discusses with the employer all unsafe or unhealthy conditions observed during the inspection and indicates all apparent violations for which he or she may issue or recommend a citation and a proposed penalty. The compliance officer will inform the employer of appeal rights and request documents related to the inspection be mailed to OSHA within a specified time.  Prior to submission, discuss the documents with your counsel.  Documents may be held back for reasons of privacy or relevance.  https://www.dir.ca.gov/doshpol/Document_Request1AY_072308.pdf

CITATIONS & PENALTIES

Citations. OSHA citations inform the employer and employees of the regulations and standards alleged to have been violated, along with the proposed time frame for correcting those violations. These citations are sent by certified mail and must be posted at or near the location of the violation for three days or until the violation is abated, whichever is longer.

To appeal an OSHA citation, the employer has 15 working days from the date of receipt to file a written notice of intent to contest with the local OSHA office manager. Failure to file a timely appeal results in the citations becoming permanent, with limited recourse available to the employer.

Penalties

Type of Violation	Penalty (per violation)
SeriousOther-Than-SeriousPosting Requirements	$16,550
Failure to Abate	$16,550 per day beyond abatement date
Willful or Repeated	$165,514
Falsification of Records	$10,000 or up to 6 months imprisonment, or both
Obstructing Officers	$5,000 and up to 3 years imprisonment

Sources

What to expect: https://www.dir.ca.gov/dosh/dosh_publications/What-to-expect-from-inspection.pdf
For Inspections, Citations, and Penalties: https://www.osha.gov/laws-regs/regulations/standardnumber/1903/1903.16
Employers Rights: https://www.osha.gov/sites/default/files/publications/osha3000.pdf.  

Penalties for False Statements: https://www.osha.gov/sites/default/files/publications/OSHA4157.pdf
Penalties: https://www.osha.gov/penalties

OSHA violations are public information.  You can search violations against any employer on OSHA website: https://www.osha.gov/ords/imis/establishment.html.

DISCLAIMER: The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice.   Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA and OSHA regulations since 1987.  Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997).  Our newsletters can be accessed at www.epaoshablog.com.  Your comments/questions are always welcome.  Please send them to sam@cellyservices.com.