The federal Occupational Safety and Health Administration has broad power to inspect workplaces. Section 8 of the Occupational Safety and Health Act empowers OSHA inspectors “to enter without delay and at reasonable times any factory, plant, establishment, construction site” or other workplace. Inspectors have the right to inspect and investigate during regular working hours and at other reasonable times, and to question management and employees.
Although courts have ruled that businesses can require OSHA to obtain a warrant before entry, these are administrative warrants which are not difficult to obtain from a court.
However, there is a less intrusive form of investigation which OSHA uses to address complaints about workplace conditions when the potential hazard seems not to present serious, immediate risk to workers and therefore is not a high priority. These are known as phone/fax investigations, which as the name implies do not involve on-site inspections, at least initially. Having received and reviewed a complaint, an OSHA inspector will contact the employer by telephone, and follow-up with a faxed letter giving notice of a complaint and requesting a response within five business days (OSHA still uses fax machines).
The letter will specifically state that it is not a citation or a notice of on-site inspection, and will describe the type of response that OSHA expects to receive. If the employer’s response is inadequate or identifies a more serious hazard, OSHA may still conduct an on-site inspection. However, a detailed and documented response, showing that corrective actions were taken, if any were needed, will most often be enough to allow OSHA to close its file.
The take-away for employers is that providing thorough supporting documentation is worth the effort. For example, a representation that the employer maintains personal protective equipment should be accompanied with inventory, training and/or maintenance records. A representation that air quality standards have been met should be supported by records of periodic inspections. A client of ours responded to a complaint that emergency exits were obstructed by furnishing photographs of the exits showing clear pathways and “Do Not Obstruct” signage. A comprehensive response is the best way to keep the investigation on paper rather than on-site.