Dirty Steel-Toe Boots: Developing and Implementing Effective OSHA Inspection Protocols

Announcer: Welcome to the Ogletree Deakins podcast, where we provide listeners with brief discussions about important workplace legal issues. Our podcasts are for informational purposes only and should not be construed as legal advice. You can subscribe through your favorite podcast service. Please consider rating this podcast so we can get your feedback and improve our programs. Please enjoy the podcast.

Philip Russell: All right, folks, welcome back to another episode of Dirty Steel-Toe Boots, a workplace safety and health and OSHA podcast by the law firm of Ogletree Deakins. I’m your host, Philip Russell, and I’m joined today by my good friend and colleague, Lance Witcher from our St. Louis office. Lance, welcome to the show.

Lance Witcher: Good afternoon, friends. Good to talk to you.

Philip Russell: Well, thanks for joining me. We are going to talk today about OSHA inspection protocols, but before we do, the lawyerly thing and the disclaimer. This is not specific legal advice for any specific situation. So, it’s educational, but it’s important because as we’ve talked about many times on this show, it’s very important for employers to know what their rights are and what OSHA can and can’t do under the law. And that’s a lot of what we talk about here in this show.
So, Lance and I are right now at our workplace safety symposium at Innisbrook Golf Resort in Palm Harbor, Florida. We’re on day two. We’ve had a really great time here, and we did this session yesterday. So, we will be having a discussion today about what that session was like yesterday and perhaps follow this up with maybe a webinar in the first quarter next year we talked about. But we want to talk today about this whole concept, Lance, of an employer having an OSHA inspection protocol and being prepared. So, this is what can an employer do or what should an employer consider doing when you don’t have OSHA on the doorstep at the facility of your plant or the job site. So, let’s kick it off, and we’ll talk about our workplace safety symposium too, because we’ve already got the dates for next year. It’s December-

Lance Witcher: In Austin, Texas.

Philip Russell: December 2nd, 3rd, and 4th. Bring your boots.

Lance Witcher: Hope you all can join us, but hopefully this conversation leads to if you need some more dialogue with us about how you could facilitate your team and best equip them or empower them rather to manage OSHA inspections. That’s our goal here.

Philip Russell: Exactly. Okay. So, let’s talk about these protocols, Lance. So, what we have seen is that there really are three constituencies at an employer that we talked about during our session, and that’s your legal team, which could be your inside council, your outside counsel, your safety team, which of course are your safety pros, whether it’s safety director, regional or site or executives. And then the third one, which we talk a lot about in our session yesterday are the operational folks. So, if you’re at a construction site, it’s your project managers, it’s your superintendents, maybe even the person at the front door or the job site trailer. And then if you’re in a plant, maybe it’s plant manager, general manager, somebody like that. So, your operations teams. And there really are different things that each of them needs to know and need to study about before OSHA shows up.

Lance Witcher: That’s absolutely right. And unfortunately, even though you’ve got your team, there are going to be other folks that are going to interface with OSHA when they show up. So, all the more reason that we should have protocols and train our folks on those protocols so that they feel empowered on interacting with those bureaucrats, interacting with those OSHA compliance officers and making sure we’re protecting our interests.

Philip Russell: Well, because OSHA doesn’t have to tell us, right?

Lance Witcher: There are no Miranda warnings by OSHA. They’ll certainly tell employees that they can’t be retaliated against, and they’ve got a right to confidential interviews, but they won’t tell them they’ve also got a right not to be interviewed and they won’t tell the receptionist that they have to have permission or a oral search warrant before they could ever enter a premises.

Philip Russell: So, when we talk about Miranda, that’s our crime show, right? Our law and order TV show, you have our right to remain silent. And so law enforcement, the way that works is law enforcement, if they are going to do a custodial interview, then by that Supreme Court decision known as Miranda…I think it’s Miranda versus Arizona.

Lance Witcher: It is.

Philip Russell: The law enforcement officer has to read you your rights. Well, what we’re saying here folks is that OSHA doesn’t have a similar obligation. OSHA doesn’t have to read an employer its rights before it conducts an inspection. So, the expectation here is that you as an employer, you need to know what those rights are, what your rights and responsibilities are as an employer under the law, and what OSHA can and cannot lawfully do.

Lance Witcher: And all of the folks in our organization that are going to have some involvement in that process also need to have that understanding. A lot of legal will have that understanding. Safety might have that understanding. Operations may not have that understanding. So why it is that we put these protocols in place, keep guardrails up? So we’re protecting our employees, we’re protecting those three constituencies you’re talking about, and we’re protecting our assets.

Philip Russell: Exactly. All too often you’ll see OSHA show up at a job site unannounced because perhaps it was a result of an employee complaint or maybe a drive-by or referral, whatever. The employer doesn’t know. OSHA shows up, and the operations folks who may not be aware of what OSHA can and can do and may not be aware the government doesn’t have to read them their rights, may say, “Come on in and roll out the red carpet.” Without going through any discussions and trying to reach this informed consent to an inspection. That’s what we’re talking about for the operations team.

Lance Witcher: And it’s funny you say that because I think about me being from the Midwest, most of us in the Midwest are just nice and gullible. You’re from Florida. Florida has a healthy dose of skepticism. We want our folks to understand their rights so they could exercise that healthy dose of skepticism when they’re interacting with the government because they have the right. In fact, the employer has most of the control over whether that OSHA inspection’s going to take place and how it’s going to take place, unless they could convince a federal judge or a state judge and a state plan to go broader. So, as long as we’ve got good inspection protocols in place and we trained our folks, they’ll know what they should say yes to, what they should say no to, and how they can decide this inspection’s going to take place.

Philip Russell: Well, wait a minute. Hold on a second. Let’s just pause right there.

Lance Witcher: Yep.

Philip Russell: OSHA shows up, an employer doesn’t have to just roll out the red carpet and say, “Come on in?”

Lance Witcher: Absolutely not. My suggestion for folks to think about is think about it like it’s your own house. If you invited somebody over for dinner, you expect that they’re going to be in your dining room, they’re going to be in your kitchen maybe while you’re cooking in your bar when we’re fixing them a cocktail as we would, Philip. But if that guest decides that they want to go into your home office and start going through your credit card statements or drinking your expensive wine without your permission or go in and look in your medicine cabinet in your master bath, you kick them out. You’d say you’re going too far. Same way with OSHA. Absent that search warrant, other than you can’t lay hands on them, you can’t blindfold them when you’re walking them to the scene of the incident that they’re investigating, but you’ve got all of the control. It is your house, and that is true whether you own the building you’re in or you lease the building you’re in.

Philip Russell: So, the goal here though is…and we’re thinking about this in sort of a broader sense…the goal, we’re not trying to hide anything. It simply is a matter, as most clients tell us, their goal is to either avoid or minimize citation items, improve safety along the way, which is what we do quite a bit of with our clients. But in order to avoid or minimize citations, we need to have a say in the process.

Lance Witcher: It would be just like getting pulled over by the police for speeding, which of course you and I have never done. But if somebody hypothetically was pulled over by the police and they said, “Do you know why we’re pulling you over?” You shouldn’t answer that question. You shouldn’t give them an admission that you were speeding, and you shouldn’t say, “Yeah, when you clocked me, I wasn’t wearing my seatbelt and should look in my glove compartment, there’s an unregistered firearm, a bag of weed in my center console.” You wouldn’t give all of that information. You would give relevant information that you know you would be required to give if there was a search warrant or if there was a subpoena for certain information.

Philip Russell: Yeah. I think I’m going to revisit that disclaimer that this is not specific legal advice for certain circumstances, especially criminal because we’re not criminal…we are not criminal…but I think the concept is educational enough. I get the point. So, the timeframe, let’s talk about that. When OSHA does show up, they’ve got six months under the statute in which to do something or nothing.

Lance Witcher: That’s exactly right.

Philip Russell: But it seems that sometimes a client may say, “Well, we’ll figure this out once OSHA shows up,” or a company may say, “We don’t need to have such a robust set of protocols or preparation in advance,” but things move fast when OSHA shows up.

Lance Witcher: Well, we talked about it yesterday, and we just got out of another session where we were talking about it. Oftentimes, OSHA’s showing up because we’ve got a serious injury or a fatality. Why would we start preparing for that for the first time after the inevitable is going to happen? There’s a reason why. There’s an unpreventable employee misconduct defense under the law. The idea is the employer’s done everything they can, and they couldn’t have anticipated that that employee was going to deviate most rules, particularly when we do safety audits, we monitor, and we discipline. So, we need to take appropriate steps in advance, and we should be. And that’s the wonderful thing about having an OSHA inspection protocol, a guideline, a crisis plan, however you want to entitle the document, you identify your team and what roles they’re going to have so they know when this event inevitably happens, they know what their role is and they’ve done training, they’ve done role play, and they’ve done it.
In some instances, certainly for our construction clients or others in high hazard industries might even want to bring in the fire department, the police or other third parties to do that role playing with you, particularly if you’ve got a work location where they’re going to need to know how am I going to get there and what PPE I’m going to need. So, the idea is once a year, twice a year, first develop the plan, but once a year, twice a year, let’s do some role playing, let’s do some mock inspections, let’s do some mock responses to accidents and inspections so our folks feel empowered to know what they should and should not be doing.

Philip Russell: One of the things we think we need the operations folks to understand is how to have that conversation with OSHA when the compliance officer first shows up. How to conduct the opening conference. Maybe even how to conduct the walkaround. But they also might have to say no to OSHA. And that’s part of what we discussed yesterday in the group is how do you say no? How do you firmly assert your rights under the law without…I don’t want to upset OSHA. I’ve heard that many times. I’m sure you have too. Well, I don’t want to make them mad. Well, I think there’s a way to go about firmly and clearly asserting your rights without doing it so to poke a bear, so to speak.

Lance Witcher: Absolutely. You could do it diplomatically. The reality is OSHA knows what our rights are. OSHA’s never going to tell you what our rights are, but OSHA knows that. We should be thinking there are going to be a lot of young guns working for OSHA now because so many folks have retired, and so they’re going to be less experienced and might think you’re just trying to be obstructive, but they’re trained what our rights are. They just won’t tell you.

Philip Russell: Exactly. So, let’s talk about what a written OSHA inspection protocol might involve. And as we said yesterday, we called it a buffet because there are a large number of items and it’s a buffet, not an all you can eat buffet Lance.

Lance Witcher: I appreciate that clarification.

Philip Russell: It is a wide selection. I think we identified 27, 28 different possible sections that may go in. We’ll talk about a few of those, but this is not a one size fits all. This is not a template off the shelf. This is certainly something that should company want to consider this, look at it from either what you already have, putting a new set of sales on it, giving it revisions and upgrades, or if you’re creating one, not everything may apply for a particular employer. So really a lot of discretion and customizing that needs to go in this.

Lance Witcher: Yeah. And you’re going to have some companies that are going to have more sophisticated EHS, so they may need less of this than other smaller companies who, again, the thought of we’ve just lost a colleague or God forbid multiple colleagues have died or had serious injuries. Why are we going to, for the first time, figure out how are we going to deal with something that we know is likely to happen at some point?

Philip Russell: Exactly. We’ll pick out a few and talk about them. One of them is roles and responsibilities and really having clear definitions of who is responsible for what. And I think that’s important because, as we said earlier, you may have only the operations folks on site when OSHA first shows up. Then you have to get the safety team engaged, whether it’s site safety or regional, then maybe there’s national if you’re a larger company. Then you have to at some point involve in house or outside counsel. So, there are your constituencies. But what guidance are we giving? What role and responsibilities do each of those have in this process, and where do they change?
One of the concepts we talked about yesterday is making sure that our site folks, our operations folks are familiar with how to go through the initial arrival of the compliance officer, the initial discussions about why they’re here, what the purpose and scope of the inspection’s going to be, the opening conference, and maybe the walk around. But perhaps considering stopping at interviews until the safety team and legal’s engaged.

Lance Witcher: That’s exactly right. And all of the people that are going to have those interactions with OSHA should understand what their role is and who should be enlisted. And how many times have you learned that a client just assumed because OSHA was there, they were entitled to go ahead and do the inspection and the receptionist, or maybe even a plant manager might just say, “Come on in.” They said they’re just here to help. They don’t want to spend a lot of time here. They’re not looking for any trouble. They just want to see where the accident occurred and maybe talk to a few people and then we’re going to go on our merry way. They got six months to then analyze that, ask for more stuff, dig even deeper, and then we’ve got a citation. So, everyone should understand what their roles are.

Philip Russell: I think I’ve heard that line before. “I’m from the government, and I’m here to help.” Right? That sounds familiar.

Lance Witcher: And we’re not maybe as cynical as we might’ve been earlier on in our practice. We do recognize that there are folks that are there to help, but they’re specifically trained and obligated under the Occupational Safety and Health Act to issue citations when they see violations. That is their job.

Philip Russell: The arrival of the OSHA, one of the critical things to also consider in your protocol is how do you go about this process of getting to that point of informed consent? Because if OSHA shows up with a warrant, that’s a different thing…but usually they don’t. I’ve handled hundreds of inspections. I’ve handled one warrant, and that was earlier this year.

Lance Witcher: Typically, the only time you’re going to see a warrant is if you’ve completely refused an inspection after they arrived, or if you have a rule that you always require a warrant when OSHA shows up, and they know it.

Philip Russell: And those are deep dive considerations probably beyond what we can talk about today.

Lance Witcher: But you would put in your inspection protocols if you wanted to do something along those lines.

Philip Russell: Exactly. But the idea of this other concept, if they’re not there with a warrant, they’re there with your consent.

Lance Witcher: And so, they need to discuss what it is they hope to accomplish, and we need to be comfortable with that approach. So, if they say we’re here because you reported a amputation or a hospitalization that occurred within 24 hours, and we need to investigate that, there are a lot of, and it’s going to happen a lot more with newer, less experienced compliance officers, I should say. It will happen a lot more often where you might get a document request where they want your hazard communication program, your lockout/tag out program, your training records, and a bunch of stuff that doesn’t have anything to do with the accident at issue. And if there are lots of clients that are just nice, good people, that’ll provide it. We develop our protocols, so we are talking to the team about what information is relevant, what the relevant scope of this inspection should be.
And we’re only providing OSHA consent once we’re comfortable that we’ve agreed upon something that essentially a federal or state judge could issue a search warrant for. We’ll allow it to proceed, but only under these circumstances. Safety’s not there on site. If legal needs to be there because it was a serious accident, interviews aren’t going to take place until we’ve got those folks there.

Philip Russell: Well, you’ve touched on several components of what’s in that protocol.

Lance Witcher: Yeah. That’s a good point.

Philip Russell: You’ve got a decision about the access. That’s a section we talked about, access to the property or facility. You talked about the opening conference and having the conversation about the scope. That’s a section in your protocol. How do you conduct the opening conference? Who attends the opening conference? What’s the most important questions you need to have answered during the opening conference before you go to the next step in the process?

Lance Witcher: Who’s the note taker during that? How are we going to escalate up whether we’re comfortable with the scope of this inspection? Here’s our plan for the inspection, how we’re going to do our walkaround. All of that can be decided. I’m not saying we’ll have to tailor it for the actual accident, but all of those are considerations that we can have set forth in advance and we train our employees, so they understand what their role is and how they’re supposed to do that.

Philip Russell: Exactly. Because after the opening conference, we have what you just mentioned, which is the walkaround. There should be some protocols in that manual, or at least you want to have that as a section.

Lance Witcher: Who’s going to be the note taker? Who’s going to be taking the same photographs that OSHA’s taking? Who’s going to be taking the same videos that OSHA take? Are we going to allow them to take videos? Who’s going to make decisions about what’s trade secrets that we don’t want in a government file that might be subject to a FOIA request from one of our competitors or plaintiff’s counsel who’s going to be suing over this fatality? All kinds of legal considerations that when it hasn’t just hit the fan because we’ve lost one of our colleagues, we can be thoughtful about and have a plan in place for when this inevitable event will happen

Philip Russell: Exactly. And you talked about document requests. We know that there’s a four-hour turnaround time in the standards for the OSHA record, the OSHA logs. Nothing really…a few other documents are addressed on other parts of the standards, but for the most part on day one, you got four hours in which to have those logs produced unless you have an agreement with a compliance officer—confirmed and documented agreement, by the way. But that’s something to address in the protocols. How will we handle document requests and how will we track them? And it perhaps is not the best of ideas to say we will give you everything you ask for right now.

Lance Witcher: Absolutely not. I remember one when we got a request for 36 different items over one injury. Yes, we should plan in advance how we’re…make sure folks understand the employer really does have the power in that. Absent them having reasonable cause that could get them a search warrant. So, I know we’re going back to law-and-order discussion there. But absent them being able to convince a judge that got reasonable cause, the only way they can get anything from us is with our consent.

Philip Russell: Exactly. So, employee interview protocols. I touched upon that a moment ago and we discussed it yesterday. Do your protocols require the participation and engagement of the safety and legal teams? And I think that’s an area where we’ve seen some mistakes happen where interviews occur before the safety teams, and the legal teams are engaged, and those interviews are done, and those bells have been rung. You can’t unring them. And that’s a process that perhaps folks may want to consider shifting the responsibility there and getting that out of the hands of the operations folks and into the hands of the safety team and legal team.

Lance Witcher: Which just makes sense because we’re all trained in different disciplines. If you’re the operations director, general manager, plant manager, you know how to run a business, how to muster the teams to get our product or our service out, and deal with the customers when we’ve got service failures to do it. That’s what you’ve trained for. That’s what you do. Safety’s trained for dealing with hazards and getting to the root cause of what may have caused this, and what we should be doing different. Legal went to law school, even if they were gullible like I was when I started law school, a lot less so by the end of law school there by design, we and our profession are to be more cynical, to be less trustworthy of it. And we learned how to interview. Safety has learned how to interview. And most importantly, I should say, on that legal front, if it’s been a serious accident, and we’re potentially going to get sued, we may want to conduct our root cause analysis under privilege. You can’t do that if you’ve already done the interviews without legal counsel directing those interviews being conducted, and you really ought to have professionals conducting those interviews.

Philip Russell: Again, more subjects there to think about ahead of time.

Lance Witcher: Exactly.

Philip Russell: You talked about attorney-client privilege, you talked about internal reports and analyses. Do you do those? And if so, who decides who leads? And do you need an internal investigation for every single workplace injury and accident? Not necessarily, but if you are doing them, who has control of them? And if it’s a serious injury or accident or fatality, you certainly want to consider some more robust controls over that process of procedure.

Lance Witcher: Yep.

Philip Russell: And again, the whole protocol is the final product is helpful, but the journey to get there is really where the value is.

Lance Witcher: Well, that’s exactly right. And to your point, think about operations who are always problem solvers. You are helping them understand which problems they should be solving by putting these protocols in advance and they’d say, “This is my lane.” This isn’t one of those situations where a customer’s pissed because we didn’t get the order out to them in the right time, and the operations manager, general manager, plant managers are trying to fix that. This is an unusual set of circumstances, and you want everybody to understand what their roles are and stay in their lanes.

Philip Russell: Yeah. Exactly. One of the things we’ve talked about was having some forms, tools, checklists, templates, those things as an appendix.

Lance Witcher: I love the way you described it. You break the glass bottle, and you’re able to pull it out, and here’s how I’m going to manage this crisis. How much better is that for people who have never interfaced with the government to say, “Oh, okay, here’s what I’m going to do, but other people are going to take…they have their own lanes for these other things.”

Philip Russell: Exactly. And that’s what we talked about is that in case of emergency, break glass. We’ve all seen the cartoons or actually seen the real…the way we used to put fire extinguishers and pick axes, I think. But that’s the idea is that have something you’re not going to hand…if your inspection protocol has all these sections and is in a big binder, digitally or physical, you’re not going to be flipping through that when you have OSHA in the conference room.

Lance Witcher: You’re going to want something that safety could email that one pager or the part that helps that person or that portion of the team with their responsibilities can fire it off to them.

Philip Russell: Exactly. Create the big underlying robust document first, and then create those tools, forms, checklists that will be helpful in the heat of the moment.

Lance Witcher: I think it would certainly help people sleep. It’s going to be tough enough when you’ve lost a coworker and the grief and the guilt that you inevitably feel. If we’ve made certain decisions, again, as you said, a buffet, but you thought through that thoughtfully before the accident occurs, it’ll be a lot more easy to handle that situation and sleep better at night knowing that we’ve got a plan in place.

Philip Russell: Well, let’s bring this all back around and package it up. If you have, an employer has the best OSHA inspection protocol ever drafted on the history of the planet, the best one ever known to man, but it’s not used, it hasn’t been trained on, and there’s no awareness and no engagement, seems like a waste of time, doesn’t it?

Lance Witcher: You’d have the best machine specific procedure for lockout/tag out. And if you don’t train your employees on it and you don’t retrain them on it every year, it doesn’t matter what’s on paper. It’s what people execute. It has to be trained.

Philip Russell: So, we are not talking about creating an OSHA inspection protocol that sits in the safety professional, the safety director, VP of safety’s office, and nobody looks at it and gathers dust.

Lance Witcher: Train them once a year. The client just talked in our last presentation about how they do it twice a year and literally have first responders participate in role playing and come out and talk about their role under their inspection protocols. Training. You need muscle memory. I’m a horrible golfer because I played twice a year. If I played a lot, I’d have better muscle memory, and I’d understand how to do it better.

Philip Russell: Well, that puts us into that discussion of engagement of muscle memory, as you said. Well, the only way you get there is if you do…you talked about a mock inspection, but there’s also role playing. You could break it down. Instead of doing a full-blown mock inspection, you may want to consider just doing a mock interview with the site safety person, for example, or someone in plant management and see how they respond and get them used to thinking about something like that.

Lance Witcher: I can’t think of many things we do in our professional lives, whether we’re lawyers, plant managers, safety people where we don’t practice for when game day’s going to occur. College athletes, high school athletes, they practice five times a week, maybe two-a-days during football season, so they’re ready for game day. Practice it.

Philip Russell: Exactly. I will not attribute this properly because I can’t remember who said it, but someone once said that the practice should be harder than the game.

Lance Witcher: Yeah.

Philip Russell: Well, Lance, thank you very much. We have come to the end here. Another great episode. I appreciate your friendship. I appreciate you joining me yesterday and today to do this podcast. It’s one of my most prized possessions. We will continue to do this in future episodes and talk about all those things, similar things we talked about today, and also put it on your calendars, December 2nd, 3rd, and 4th, 2026, in Austin, Texas. Keep Austin weird. We’re going to contribute to keeping Austin weird. Thanks, folks. Appreciate you joining us.

Announcer: Thank you for joining us on the Ogletree Deakins podcast. You can subscribe to our podcast on Apple Podcasts or through your favorite podcast service. Please consider rating and reviewing so that we may continue to provide the content that covers your needs. And remember, the information in this podcast is for informational purposes only and is not to be construed as legal advice.