By Lauren White, RCS Reporter.
As roofing contractors, it is important to know your rights in case you’re faced with an OSHA inspection. Failure to know your rights could result in significant fines. OSHA inspectors typically show up to job sites for a specific reason, such as issuing a citation, not just to check on how business is running.
There are three main reasons for an OSHA investigation, including: an employee issued a complaint, an injury or fatality occurred recently, or if OSHA determines there is an immediate threat. According to Cotney Construction Law, “Roofers are some of the easiest construction workers to cite due to the fact that roofing is highly visible and the inspector does not need to use much effort to determine the likelihood of a dangerous situation that needs inspecting.”
OSHA has “administrative probable cause,” which allows them to legally inspect and investigate job sites. Cotney Law explains that, “Their standard for probable cause is more easily obtained than that of many other agencies.” Any active job site poses a risk of danger or injury. This gives OSHA the administrative probable cause they need to investigate.
You can ask for OSHA to acquire a warrant, which restricts access to your job site, but this could cause more harm than good. Warrants can allow OSHA to, “...engage in additional activity on your site that they would not be able to do during a regular inspection,” according to Cotney Law. OSHA inspections generally are limited to men, materials, and equipment in plain sight. However, with a warrant, OSHA can sample materials that might not necessarily be in line of sight, or “...perform scientific tests on air quality, presence of combustible material, or other alleged dangers,” Cotney Law explains.
Management should be attentive, informed, and advocate for your company during an inspection. The superintendent has the right to follow OSHA inspectors all around the job site. Cotney Law shares that, “The superintendent must ask certain questions to ascertain the purpose and reason for the inspectors’ visit. What is the scope of the investigation? What are they here to see?” As soon as this information is known, the superintendent can guide the inspector to what really needs to be seen. “If the inspectors are attempting to go outside of their scope or see things that are not in plain sight then the superintendent should warn the inspectors of this,” Cotney Law explains.
It’s important for you to be aware of what happens during an inspection as well. It is typical for OSHA officers to focus on fall protection equipment and practices of the crew. Ensure harnesses, ropes, and lanyards are properly maintained and any old, frayed, or impacted materials are thrown away or replaced promptly. Cotney Law reveals, “Roofers are often cited for damaged equipment even when it stays in the truck and should have been discarded.”
“During or after the compliance officer’s walkthrough he will attempt to conduct interviews with the employees and management,” Cotney Law shares. Interviews can be held in private and away from management, however, they should be short and the superintendent can object to any extensive questioning. Employees can request to have an attorney present during the interview.
OSHA officers typically want to speak with management on the job site. Management should always have an attorney present for such interviews. Cotney Law suggests, “Management should limit their dialogue with OSHA to ascertaining the purpose, scope and reason for the OSHA visit, providing his name, position and asserting his right to counsel. Management should not answer any questions regarding safety protocols, equipment, or practices without an attorney present.” Once an attorney’s presence is requested, the questioning occurs off-site. This diminishes the opportunity for any additional violations to amass.
Typical questions revolve around training, safety, and job-specific acts or exclusions. “Some of the more common questions include how to properly tie off, use personal protective equipment (PPE), how to properly install anchor points, how to properly tie off ladders, knowledge about hydration and water breaks, knowledge regarding risks associated with swing radius, inhalation of chemicals and/or silica, as well as other potential hazards,” Cotney Law discloses.
In the case of an incident on the job site, employees should be prepared to answer the who, what, when, where, why, and how of the incident. This includes their training and the instructions delivered when the incident occurred. A Certified Safety and Health Official (CSHO) might ask if employees were asked to tie off on the date of the inspection, if supervisory employees inspected crew members throughout construction, and any reasons employees weren’t tied off, even if they were. Further, OSHA typically asks, “...whether employees were not wearing fall protection because they were told to complete work at an accelerated pace or to meet certain schedule obligations,” according to Cotney Law.
A witness statement is another facet of the interview, which is a written document the compliance officer prepares during the interview. This statement “...likely contains condemning statements for the purpose of prosecuting the employer,” Cotney Law points out. Supervisory and non-supervisory employees don’t need to sign the statement, giving them more time to think about their responses and speak with an attorney if they choose. If an OSHA officer doesn’t have a witness statement, their only evidence is their notes and photographs. Cotney Law shares, “However, the OSHA officer can still contact the local area office and ask that it issue a subpoena requiring that the employee’s testimony be taken under oath.”
Employees should always tell the truth, whether they’re providing testimony or not. Any delays in giving testimony allows employees time to collect their thoughts and make sure they’re providing a truthful testimony. Further, employees are more alert and can “...detect and avoid the onslaught of ‘Gotcha!’ questions OSHA loves throwing at unsuspecting witnesses,” Cotney Law reveals.
Consult an experienced construction attorney like Cotney Construction Law to ensure you are prepared for an OSHA investigation.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.