Since OSHA has grown substantially in the last few years in other areas of governmental oversight, it is important to understand what OSHA really is.
The Occupational Safety and Health Administration (OSHA) is a governmental agency associated with the U.S. Department of Labor.
OSHA is responsible for the enforcement of safety and health requirements in the workplace. Inspectors, also known as compliance officers, are trained in safety and health hazards, and they are tasked with ensuring employers comply with OSHA requirements to reduce on-the-job accidents, injuries and illnesses. Yes, this includes the oversight of chiropractic offices, too.
One of OSHA’s main functions is to perform site inspections (including the inspection of chiropractic offices). OSHA is responsible for monitoring the safety and health requirements at over 7 million workplaces each year. OSHA conducts inspections in one of two ways: phone and fax investigations, or on-site inspections.
These investigations are usually conducted for a lower-priority hazard that was initiated by a complaint filed (often by current or past employees) with OSHA. An investigator—or OSHA representative—in most cases will contact the employer by telephone, and then follow up with the employer by fax to provide details of the alleged health or safety violation. Many times, the employer must respond in writing within five working days. If OSHA is satisfied with the employer’s response, the matter will be resolved without the need for an on-site inspection.
Types of inspections
OSHA inspections that occur at a practice can be scary and intimidating. Unless an inspection is conducted after the issues raised in a phone or fax investigation remain unresolved, the on-site inspection is usually done without advance notice. The inspector will appear in the office, start conducting an opening conference, request select documentation from the practice owner or manager, conduct interviews with employees, perform a walk-around for a physical inspection and, eventually, at a later date conduct a closing conference.
However, prior to an inspection, a practice owner (employer) has certain rights. Prior to the inspection, the practice owner may request that the OSHA official produce his or her credentials. The credentials will be more than a simple badge; they will have the inspector’s name, photograph and contact information for his or her office. The practice owner also has the right to verify the credentials of the inspector with the local OSHA office, if there is any doubt as to their authenticity.
A practice owner does have the right to insist that the OSHA inspector obtain an inspection warrant before allowing the inspector to enter the premises. In most cases, the warrant will be granted; therefore, such a request may only delay the inspection for a short period of time.
It should be noted that a practice owner can ask the compliance officer to postpone an inspection to a later date if there is a reasonable basis for the request (the officer is not obligated to honor such a request, however). If the inspector does agree to delay the inspection, he or she may still move forward with the opening conference, ask for certain documents to be produced and conduct employee interviews, if applicable.
The opening conference
Prior to the inspection taking place, there is generally an opening conference. At this point, the OSHA inspector will meet with the practice owner. The opening conference is generally brief; the inspector will explain whether the scope of the investigation is limited to a particular area or is a wall-to-wall inspection of the entire practice. If the inspection was triggered by a complaint that was filed with OSHA, the practice owner is entitled to a copy of the complaint with the name of the person filing the complaint redacted.
The inspector may also ask to see specific documents, such as the required Log and Summary of Occupational Injuries and Illnesses, or other records that OSHA requires employers to maintain. In order to avoid any future misunderstandings, it is always recommended that the practice owner ask OSHA to make their requests for particular documents in writing thereby detailing exactly what documents the practice owner will be required to provide, and when such documents should be produced. As a general rule, prior to producing any records to OSHA, a practice owner should consult with legal counsel in order to determine which documents should be produced or if an objection should be raised.
During the inspection
As part of the inspection, the compliance officer will physically walk around the practice owner’s premises to investigate the allegations. The practice owner and a representative are encouraged to accompany the inspector. The compliance officer may not conduct an inspection that is broader than the reason for the inspection as stated in the opening conference.
For instance, if the inspection is based on a complaint that a piece of equipment is hazardous, then generally the inspection is limited to an examination of that piece of equipment. However, any OSHA violation that is in plain sight to the investigator could form the basis of an expanded investigation.
The compliance officer may take measurements, photographs or video during the investigation. The practice owner or representative is also permitted to—and should—take measurements, photographs and video. The compliance officer may also have tools or equipment for measuring any alleged hazards. Again, the practice owner should document as much of the inspection as possible, and where applicable may want to retain an expert of their own to duplicate the tests of the compliance officer if a violation was found.
As part of OSHA’s investigation, the inspector can conduct two different types of interviews: those with a non-supervisory employee and those with a supervisory employee. Under the law, employees have the right to speak with OSHA privately and, therefore, the practice owner or a representative will usually be excluded from the interviews. The employee does not have to speak with OSHA if he or she does not want to do so, and the practice owner cannot influence the employee’s decision to not speak with OSHA.
All employees, regardless of the supervisory status, normally have the right not to be tape recorded and to have counsel review any written statements prior to signature.
The closing conference
After the OSHA investigation has been completed, the OSHA inspector will hold a closing conference to outline any observed violations. This is not the time to argue with the inspector’s findings, but the practice owner may ask questions.
If a citation is issued and the employer does not agree with the alleged violation, the fine, or the abatement deadline, then the practice owner may file a Notice of Contest with the local OSHA area director. The case will be transferred to the Department of Labor and the Federal Occupational Safety and Health Review Commission. If the case cannot be settled, then a hearing will be held before an administrative law judge.
As outlined above, an OSHA investigation can be complicated, terrifying and intrusive. Whenever a practice owner is faced with the prospect of an OSHA investigation, it is always advisable to seek legal counsel. A practice owner should never go through an OSHA investigation without expert guidance.
Stuart J. Oberman, Esq., is founder and president of Oberman Law Firm, a midsize practice in the Atlanta area. Practicing law for more than 23 years, he handles a range of legal issues for chiropractors, including employment law, cybersecurity, practice sales, real estate transactions, lease agreements, OSHA compliance, chiropractic board complaints, and professional corporations. He can be contacted through obermanlaw.com.