What Do I Do if MIOSHA/OSHA Comes to Inspect My Site for COVID Safety?

By Michael Burns, courtesy of SBAM Approved Partner ASE

In last week’s EPTW, we reported that MIOSHA had substantially fined a number of employers for failing to adequately protect employees from COVID exposure or infection. These fines were levied under MIOSHA’s general duty rule requiring employers to maintain a safe workplace.

The infractions resulted from improper implementation of pandemic safety protocols such as masking, social distancing, or failing to have a preparedness plan in place as required by the Governor’s executive order.

The fines were levied based upon MIOSHA site inspection most likely to confirm a complaint but could have been a random inspection. Steven Gatley, an attorney with Lewis Brisbois, Bisgaard & Smith law firm, reports in a timely article that over 31,000 COVID-19 complaints have been received by OSHA or state OSHA offices. When a complaint is received the agency can make written inquiries, request documents, and conduct an inspection of the workplace.

What should an employer do if a MIOSHA (in Michigan) inspector shows up unannounced? This can be the case when they are following up on a complaint.

First, know that you as the employer have the right to limit the inspection to what the inspection is for. MIOSHA/OSHA can cite for any observable offense. Limiting the area of the inspection is therefore important. Mr. Gatley recommends to never offer an inspector a tour of your entire facility.

The following is the typical process an onsite inspection may follow:

Opening Conference – This will allow you to find out why the inspection is being done. If the inspection is because MIOSHA/OSHA received a complaint, you have a right to see the complaint. This will provide information about where the inspection may go in the facility.

Employers should have a general plan and procedure in place to address unannounced visits. An organization representative should be designated to be the point person and facilitate the inspection. If the person is not present at the time of the unannounced inspection, the inspector can be asked to wait. If they are not available, someone from senior management should meet and accompany the inspector.

Walk Around – Gatley recommends an organization have someone accompany the inspector at all times while on-site.  That person should take the same pictures or measurements the inspector takes. If personal protection equipment (PPE) is required to enter an area, make sure the inspector uses their own. Good tip – If you lend them your company’s PPE the inspector can find fault the organization with the type and condition of your equipment.

Interviews – The inspector may interview workers as part of the inspection. The worker does not have to consent to it though. It is recommended the employee be made aware that they have the right to refuse to be interviewed. If the inspector requests to interview someone in management, the company can have a management representative or even legal counsel present. This is because statements from managers or supervisors may legally bind the company. Another good tip provided by Gatley – “Do not voluntarily provide any information during the interview or the inspection.”

Documents – The inspector can ask to review documents such as your accident and illness logs. Check your state law to determine if your state has particular requirements above what OSHA requires for recordkeeping. In Michigan, employers are required to have a written pandemic preparedness and response plan in place. This will no doubt be requested during an inspection driven by a complaint the employer was not following COVID safety protocols. ASE has a template available.

More tips – Other documents may be requested. If the request seems unrelated to the inspection issue or unreasonable, ask for the request in writing. Employers can be given reasonable time to comply. If the inspection is driven by an accident and video surveillance was in place, OSHA may request that video. Gatley recommends only providing footage of the time and location of the event in question. Providing too much video may give MIOSHA/OSHA more to pursue.

Abatement – If a violation is fixable during the inspection, Gatley recommends doing it while the inspector is on-site. This may reduce the potential fine.

Closing Conference – An inspector must provide the company with the preliminary findings. It is recommended you do not contest or argue at this point. If cited, there is a process that may allow for resolution via informal conference and of course a more formal appeal of the decision or fine.