The Right to Delay an OSHA Inspection Until Management Arrives
Chapter 3 of OSHA’s Field Operations Manual (“FOM”) governs OSHA Inspection Procedures, which encompasses many aspects of an inspection including preparation, planning, documentation, and notice. The “conduct of inspection” guideline indicates that the OSHA inspector must locate the owner, operator or agent in charge at the workplace prior to commencing the inspection.
In that regard, the FOM provides that “when neither the person in charge nor a management official is present, contact may be made with the employer to request the presence of the owner, operator or management official.” The guideline posits that the inspector should not be reasonably delayed due to the absence of a management official, for instance, for any duration over one hour. In the event that a management official cannot be determined, then the inspector is directed to record the inquiry in the case file and proceed with the physical inspection.
In the event that an agreed upon representative cannot be present within a reasonable time, an employer has a right to require that the inspector obtain an inspection warrant prior to entering an establishment and may refuse entry without such a warrant, unless one of the exceptions to the warrant requirement exists (such as plain view, consent, third-party consent, or exigent circumstances).
Ultimately, the employer has the right to delay an OSHA inspection where a key management employee, safety personnel or agent is not present and may demand that an inspector seek an inspection warrant prior to conducting an inspection. This concept of consent demonstrates that OSHA must agree to delay an inspection pending the arrival of the aforementioned key management/safety individual for at least an hour, assuming the delay is not sought for a nefarious reason (such as spoliation of evidence, etc.). Therefore, employees who are not key management personnel or owners must be made aware of this right in the event of an unexpected OSHA inspection so that the common employee may raise the issue of consent and delay an inspection or demand a warrant.