According to a decision this week, an OSHA compliance officer can write you a citation even if her credentials are expired. Your opportunity to challenge the credentials is only before you let her inside.
In a recent case, OSHA responded to an employee complaint about fall protection at a construction site. According to the Commission decision, the compliance officer “held up” his credentials or “flashed” the card “from a distance.” Company supervisors then escorted OSHA around the site. After OSHA had left, the company owner found the officer’s credential card left behind and discovered that the card had expired several weeks earlier.
The company contested citations it received on grounds that the inspector’s authority was expired and thus he was not authorized to inspect or cite them. They argued that under Section 8(a) of the Occupational Safety and Health Act, the Secretary is only authorized to inspect “upon presenting appropriate credentials to the owner, operator, or agent in charge.”
In a 2-1 split decision, the Commission disagreed and upheld the citations, finding,
[T]he credential card merely functions to inform an employer that OSHA has delegated inspection authority to the CO—the card itself does not grant that authority.”
According to the majority opinion, the company could have scrutinized the credentials and even objected to letting the compliance officer inside. Indeed, unless OSHA obtains a warrant, the inspection can only occur by the employer’s consent. But, once it allowed in the inspector, the company waived any defense based on the expired credentials.
Commission Chair Heather MacDougall dissented. She argued that according to the words of the OSH Act, presenting “appropriate credentials” is a precondition to performing an inspection. No credentials = no inspection. The lack of such credentials should be an affirmative defense, she wrote, unrelated to whether or not the company consented to the inspection. However, her views did not gain majority support.
The case is a reminder of a couple important points about handling OSHA inspections.
First, an employer has rights, some of which you either have to exercise or you will waive. Some people may feel uncomfortable asking to see a compliance officer’s credentials. But, that’s a discomfort worth getting over. You should be sure that the person gaining entry to your facility is actually – and currently – from OSHA. Being certain of that does not mean you’re being difficult. It just means you’re following the inspection process laid out in the OSH Act. (Of course, you should do it in a friendly way.)
Second, except under unusual circumstances, we typically advise clients that generally cooperating with OSHA (and consenting to appropriate inspections, after confirming/negotiating the scope) is the best approach. It allows OSHA to do its job and allows you to get back to doing yours. But, that doesn’t mean you should skip steps in the inspection.
Many of those are steps you may not have a chance to re-do later. If you decide not to hold an opening conference, not to accompany OSHA during the inspection, not to document what happens, or not to check credentials, that’s your choice. But, those are important moments for minimizing liability and even preparing a defense. And you may have trouble convincing a court to toss out citations later just because you didn’t seize those moments when you had the chance.