Safety Basics XV: Imminent Danger—OSHA’s Immediate Response Procedures

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.

John Surma: Hello, everybody. This is John Surma, a shareholder at Ogletree Deakins in the Houston office. I am here today with my law partner, Frank Davis, of our Dallas office, and we are here today on the 15th edition of our Safety Basics series. This episode is on OSHA imminent danger inspections.
Frank, welcome to the podcast.

Frank Davis: Hey. Thanks, John. Glad to get to join you for this one.

John Surma: I’m looking forward to it. Let’s get right after it. Can you explain for our audience what exactly an imminent danger OSHA inspection is? What does that mean?

Frank Davis: OSHA defines imminent danger as any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately. Immediately is the key word. Basically, it’s any hazardous condition or practice that would be expected to cause death or serious physical harm immediately if it is not immediately corrected.

John Surma: And could you give our audience some examples of situations, scenarios, that you commonly see with imminent danger inspections in terms of what the source of that imminent danger is?

Frank Davis: Well, I would say that I don’t find imminent danger inspections in the way we’re going to describe them and discuss them here today to be all that common. But the areas where I have seen and/or heard of imminent danger inspections tend to focus on issues about guarding, lockout/tagout issues, confined space, permit-required confined space, falls from elevated surfaces, electrical exposures, trenching, struck-by hazards, crush hazards. And a lot of that struck-by hazard…a lot of the falls from elevated surfaces have to do with cranes lately.

John Surma: But what sort of separates an imminent danger guarding inspection or lockout/tagout inspection from your standard inspection relating to guarding or lockout/tagout?

Frank Davis: OSHA conducts immediate inspections of an imminent danger if they receive either a report from an employee, an employee complaint, or often in the context of construction, especially with trenching or crane operations, if they’re in plain view, a compliance officer happens to see it, but they have a two-part analysis to decide whether an alleged complaint or an observed condition warrants an immediate inspection of an imminent danger. And the first one is, the question I have to answer is, does the alleged hazard…could it result in death or serious physical harm?
And one of these two things. One, it’s got to be reasonably likely that a serious accident could occur immediately. Or, if not immediately, then before abatement would otherwise be implemented following the usual inspection process.

John Surma: And is there, for lack of a better term, kind of a method by which OSHA determines those latter two factors? If you have a machine with a missing guard, whether or not it is something that is immediately going to cause an incident before abatement is accomplished or reasonably likely that a serious accident could occur immediately, if a serious citation is issued, that kind of implies the same thing.
How is this calculus ultimately engaged in? Or how is this determination ultimately made?

Frank Davis: There’s a lot of reliance on the information initially gathered by the compliance officer, as it is evaluated by the compliance officer first and then by the compliance officer’s direct supervisor, which is either an assistant area director/or an area director. But the compliance officer certainly has the authority to identify a condition that he or she believes satisfies these protocols, and they’re trained on it. They’re trained to identify situations where they think that there’s an immediate risk of serious physical harm or death, or that this risk is so great that they can’t wait to get abatement. They need to get a correction from the employer before abatement.

John Surma: What is the most common trigger for an imminent danger inspection?

Frank Davis: Well, it typically comes from an employee complaint. That is traditionally the most common source of these types of inspections. I am finding, however, that with some of the NEPs, the National Emphasis Programs that OSHA has adopted over the last few years, we’re seeing some plain-view corrections. And the ones that I’ve seen the most immediate requiring an immediate response are trenching cases. And you’re down here in the same area as I am, in the same trenches that I’m in as a practical matter. And that’s where I’m seeing the most action lately, is the compliance officer noticing a trench and saying, “Hey, that’s not right. I need you to fix that immediately.”
Especially, by the way, with ingress/egress because that’s the most obvious. That might be one of the most obvious things for a compliance officer to see, but there’s a fair amount of shoring, trench box, sloping issues that they also raise on these imminent danger inspections as they pick them up in plain view.

John Surma: My next question. Can you explain for our audience the process or the progress of an imminent danger inspection?

Frank Davis: It’s real similar. The imminent danger inspection is very similar to the manner in which compliance officers conduct any other inspection. The initial meeting between the employer and the employee is the opening conference. Then they ask for a walk-around. They conduct interviews of management and employees. They ask for documents, and then there’s a closing conference.
But what I have seen more in the last six to eight months is, whenever they come on the scene, especially when they’re investigating an alleged imminent danger associated with a crane or an alleged imminent danger associated with trenching, and this is very specific to construction, so I apologize for everybody in the general industry, but you’re just more obscured. It’s harder for a compliance officer to see a violation in plain view. Not to say that they couldn’t. But what I’m seeing a lot of is they come on scene, and they’re not having a meaningful opening conference with management. They’re just coming in. They’re engaging the employees right away, telling the employees to stop what they’re doing, and they begin the inspection and the interviews before management even has a chance to get on scene.
And actually, I’ve had a couple of favorable outcomes from those investigations because they didn’t follow the proper procedure. But that’s what I’m seeing, and that’s a real risk. And that’s something that, if I were an employer, I’d be thinking about and getting ready for.

John Surma: Now, Frank, is OSHA able to establish, without getting employer approval, the scope of the inspection, assuming no warrant’s been issued?

Frank Davis: No. The way an OSHA inspection works is that you own the property. And they don’t get to come on board unless they’re invited, or unless they have a warrant from a federal court. And none of these that they had clear access. They just weren’t denied access. Neither of the two cases I’m talking about. And that was certainly one of the arguments we made is, “Look, you came on. You never had authority to be there,” and they didn’t have a good defense for it.

John Surma: And is the opening conference in an imminent danger inspection any different than an opening conference in what I’ll characterize as kind of your standard, ordinary, typical, whatever normal term you want to apply to an opening conference?

Frank Davis: Well, no, except that they usually will present you with an employee complaint, if it’s based on an employee complaint, which is not different than another inspection originated by an employee complaint. Or in a plain-view instance, they still will tell you why they’re there. “I saw an open trench. It didn’t look like it was shored correctly. Now, I want to go look at it, see who’s exposed.”

John Surma: The opening conference in an imminent danger inspection. Is that any different than any other inspection’s opening conference, or is that more or less the same type of process?

Frank Davis: It’s nearly an identical process. They will tell you what they’re there to inspect, though, if it’s an imminent danger inspection, because the expectation whenever they come in with a specific complaint or a targeted investigation point is that they go to the targeted investigation point. You still, as an employer, have the right to deny them access and require them to get a warrant. Or if, as an employer, you allow them access, you can set that … You can give them access to a specific area and then think about how to get them to that specific area where the alleged imminent danger exists.

John Surma: Two questions in follow-up on that answer, Frank. Question number one, which I hear all the time from employers, does OSHA have an obligation to tell you who the source of the complaint is?

Frank Davis: No. They’ll protect the source of the complaint if the investigation is based on a complaint.

John Surma: And the second thing is…the concept behind the imminent danger inspection is that there’s some exigent circumstances that are in existence to essentially allow OSHA to engage in this inspection process, kind of deviating from normal pathways.
Does that allow them to just kind of blow through the front door and go to the scene of the hazard, so to speak? Or it’s still kind of the normal process is supposed to be followed? Is that correct?

Frank Davis: The same process should be followed. Just because there’s an allegation of an alleged violation or a hazardous condition doesn’t give them unfettered access, unless they go to federal court and get a warrant first.

John Surma: Frank, in an imminent danger inspection, what are OSHA’s rights?

Frank Davis: OSHA has the right to inspect permitted areas. And permitted areas are determined by one of two things. One is either your consent, the employer’s consent, to inspect, or a court’s inspection warranted that has to be supported by probable cause. And usually, an employee complaint is sufficient to support probable cause.
OSHA also has the right to issue subpoenas and to question employees, including managers, under oath. They also can issue subpoenas to obtain documents or materials. And during the walk-around, they have the right to take photos and videos in and from a permitted area where it’s either permitted by the employer’s agreement or by warrant.

John Surma: And could you describe the walk-around process in an imminent danger inspection?

Frank Davis: Walk-around process is you’re going to give him, the compliance officer, access to the area where the alleged violation of condition exists, and they’ll walk through the area. You’ll want to accompany the inspector at all times and take photographs of what OSHA photographs, video record what OSHA video records, take the same air and noise samples that OSHA takes. Basically, you’re trying to replicate their inspection.
In 25 years of doing this, I’ve never had an issue with OSHA letting me just copy their photographs, videos, and bring in an industrial hygienist and conduct the same sampling and studies that they’re conducting.

John Surma: And by copying photos, you don’t mean literally getting a copy of their photo. You’re talking about taking duplicates of their photos, right?

Frank Davis: I’m not talking about copying their file because they won’t let you copy their file. I’m talking about seeing what they’re photographing and then trying to get the same photograph that they took. As a practical matter, they often will show me exactly what they’re photographing, and then I’ll frame, or I’ll have a client frame, up the same photograph that OSHA just took to make sure we’ve got the same photograph.
There’s different ways to go about it, but that’s the way I find to be most efficient.

John Surma: During the course of the imminent danger inspection, how is the imminent danger identified to the employer? And what are the expectations relating to the elimination of that hazard or that danger?

Frank Davis: During the walk-around, or maybe even after the walk-around, the co-show may identify an imminent danger. And I say after the walk-around because sometimes they might not know there’s…they might not have identified it, or they might need to go back and do some research to see if it really satisfies an imminent danger, or they may need to go consult others.
At some point in an imminent danger inspection, the compliance officer may identify an imminent danger. And once OSHA identifies imminent danger, OSHA expects the employer to immediately abate the hazard. And if that hazard cannot be immediately abated or corrected, they expect the employer to remove the employees from the hazard area.

John Surma: Kind of sounds like what you’re talking about is not so much the compliance officer coming in with an identified imminent danger, but instead something that they identify in the course of maybe an NEP inspection, maybe just a fat cat, maybe a complaint inspection that’s not classified as an imminent danger complaint, and identifying something that’s an imminent danger in the course of that inspection.
Is that what I’m understanding? Is that correct?

Frank Davis: Well, it’s all those things. I mean, they can identify an imminent danger during any inspection. They could identify an imminent danger pursuant to an imminent danger inspection. It could be any of those things. The end result is that they’ve identified a condition that they believe it creates an immediate risk to life or physical health. They can take this action and tell an employer, “We need you to immediately abate that hazard or remove everybody from the area.”
Now, OSHA doesn’t have the authority to shut down operations, but they will post a notice of an imminent danger. The compliance officer will tell employees that it’s posting a notice of imminent danger and what constitutes an imminent danger. And they can go to federal court, and they can get a TRO, a temporary restraining order, that prevents the employer from maintaining the imminent danger or maintaining the operation that results in the imminent danger.
Even if they don’t go and get a TRO, even if OSHA doesn’t seek some type of injunctive relief, they still will tell employees that employees have the right to refuse to expose themselves to these identified imminent dangers. And employees are protected under the OSHA Act from refusing to do work if they believe that it results in a real risk of physical death or serious physical injury.
Lastly, I would say, if OSHA identifies an imminent danger and the employer refuses to abate the hazard or remove employees from the hazard area pending any type of further litigation or action, and an employee is killed because that employee was exposed to the imminent danger, then that would be one of the bases where you might see OSHA pursue criminal remedies against the employer or the supervisor that can result in real and actual jail time. Federal prison.

John Surma: And I’m assuming they could also seek citations that would be classified as willful.

Frank Davis: That’s right. That’s right. I mean, even if the employer immediately abates an alleged violation, OSHA…it’s highly likely OSHA is still going to issue a citation. And the citation could absolutely be willful even if the employer abates. The only thing it would say is that it was corrected during inspection, but that doesn’t stop OSHA from issuing the citation.

John Surma: From the standpoint of the document requests that OSHA might make during an imminent danger inspection, is there any difference in those document requests or in expectations relating to responses than in a standard inspection?

Frank Davis: The only ones I’ve seen is that they get a little more ants in their britches. They want the documents faster in those cases, sometimes demanding them on the same day. Typically, will ask for time to respond, but in an imminent danger inspection, sometimes they demand those inspection records right away.

John Surma: You cannot provide them immediately. Is there a penalty?

Frank Davis: Well, it depends. You’ve got to provide the injury logs, the OSHA 300, 300 days, and 301s within four hours. And then there are other policies that have a clock on them as well. But if they’re asking about documents that don’t have a four or eight-hour clock on them, then their remedy, OSHA’s remedy, is to issue a subpoena and try to enforce that subpoena for a quicker turnaround.

John Surma: Now, during an imminent danger inspection, OSHA also has the ability to interview employees, right?

Frank Davis: Yes, that’s correct. They can interview employees. They can interview managers. A lot of times during an imminent danger inspection, OSHA will want to interview employees on the job. Personally, I typically resist that, saying, “The guy’s got to work. You’re interfering, creating a more dangerous atmosphere. The law requires you to inspect at reasonable times and in a reasonable manner.” And then I would offer to schedule those employees during non-work time. I’d still keep them on the clock but schedule them during non-working time, so they’re not exposed to any hazards on the job, and let them get interviewed by OSHA.
Sometimes, the compliance officer will insist on interviewing the employee. And if I’m handling the inspection, I tend to get close and listen in. If OSHA says, “Well, we need to interview them privately,” then I go back to my regular mantra, “That’s fine. I’m happy to schedule that, but right now they’re working. If you’re insisting on talking to them now, I’m going to listen in to understand when this interview or this interaction needs to end so they can get back to work, so they don’t create a hazard to production or themselves.”

John Surma: And with regard to the management interviews, are those any different than they would be in a non-imminent-danger inspection?

Frank Davis: Well, I want to make sure we highlight the right for representation during a management interview is the right of the company. It’s not a choice by a manager. It’s the right of the company to have somebody sit in on a manager interview. I feel like having somebody with experience that can sit in and hear those questions and help with those responses is key to a successful manager interview. And the reason that they’re treated differently than an employee interview is because whatever a manager says can and will be used against the company as though the company made the admission itself. And therefore, that’s why I always encourage employers to have a good representative sitting with managers during their OSHA interviews.

John Surma: And are the questions more or less the same type of questions you would have in a standard inspection, or are they somehow different and somehow do they have to be, for lack of a better way to put it, more focused or more directed toward the hazard in question?

Frank Davis: Well, there’s certainly specific questions they’re going to be asking to try to establish the existence and employer knowledge of an imminent danger, and those are certainly outlined in their field operation manual. But otherwise, all of these interviews follow a very, very similar pattern.

John Surma: And Frank, you and I have both been doing this for a long, long time, and I think both of our experience is that this is a relatively limited and relatively unique set of circumstances where an imminent danger inspection is actually identified as such from the jump.
Do you have any other kind of suggestions or tips or guidance for our listeners as we’re bringing this podcast to an end?

Frank Davis: My inclination for any inspection or to prepare for any inspection is the preventative first. Inspect, detect, and correct imminent dangers and any other hazards that you identify in your workplace. Because if there isn’t an imminent danger, if there isn’t a workplace hazard, then there’s no need for an inspection. The key is to conduct that hazard assessment. And it’s not a one-and-done, right? It’s a continuous process. Anytime you change processes, anytime you’ve changed personnel, and then periodically, it’s recommended.
Sometimes it’s a good idea to get different eyes on it. If you’ve done these assessments internally traditionally, it might be a good idea to bring somebody else in with a fresh set of eyes. Get a little bit …you’ve heard that nose blindness, right? That commercial about nose blindness. You certainly get blind to some of the hazards and don’t see them. You and I go into these environments all the time where we’re walking the floor and say, “Hey, did you notice that? Did you notice that?” And they go, “Golly, no.” And they’re kind of obvious things. One of the most obvious ones I ever pointed out was the need for policies around a paint booth. “I didn’t even think about that.” Sometimes you just miss stuff.
I would also think about general inspection preparedness. Think about how you’re going to handle an inspection before you handle it. We have a handout that we offer to help work through that process. And if you want to email us, I’m happy to send you one. But that’s just to have a plan in place before OSHA arrives. Who’s going to contact OSHA? Who needs to be alerted that OSHA is there? How are you going to handle it? Where are you going to sit them? Because people without a plan quickly discover that they wish they’d had a plan once OSHA knocks on the door.

John Surma: I think that’s all great advice, Frank, and I appreciate you for contributing to our Safety Basics series and to our OSH Law Primer series. Have a great day, Frank. Thank you again.

Frank Davis: Thanks, John. Glad to be in Houston. Beautiful down here.

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.