As the NSAA Capital Watch has pointed out, ski areas have made it onto OSHA’s 2008 inspection list. Ski areas rose to the list after being identified as a High Hazard Area. However, inspections may also occur because of employee complaints, a major accident that is reported in the media, or a fatality or incident where three or more employees are hospitalized. There is nothing you can do at this point to avoid the inspection.

Inspections are unannounced. In fact, it is a crime to give a workplace advance notice of an inspection. So someday you may be surprised to find an OSHA compliance officer standing in your office.

The first step is to be polite. Although this is largely an adversarial relationship, you will learn more and protect yourself by responding in a courteous manner. Invite the inspector into your office, offer him coffee, get your pad and pencil. Start by creating a relationship.

Next, get on the phone and call your OSHA compliance officer. This is probably your risk manager or your workers’ compensation manager. You may also want to call your attorney. Ask the OSHA inspector to wait for any discussions until both of these people show up. OSHA inspectors will normally wait for a reasonable length of time.

Your OSHA compliance officer, before meeting you, can notify department heads that an inspection may be coming. This will give them at least some time to get their operations in order.

Ask to see the inspector’s credentials. Do this by exchanging a business card. If the person in front of you cannot show you proper credentials, ask them to leave and come back when they can. Make sure you have contact information before your meeting is over.

Next, try and determine why the inspection is being done. If the inspection is based on an employee complaint, you have the right to see the complaint. (The name of the employee who complained will not be revealed.) Finding out how the inspection was triggered will help you to informally narrow the inspection. You can negotiate and agree with the inspector on what points or issues will be covered. At a later point, if the OSHA inspector wants to broaden the inspection, a reminder of your agreement over the scope of the inspection will usually steer the inspection back.

Once you know the source of the inspection, get prepared for it. You will need a tape recorder, camera, possibly a video camera, pens and pads. Make sure you identify how the inspector will record the site so you can do so with the same instrument, photographs or videotape. If you are not good at taking notes, have someone else do it.

During the first conference discussion you can also determine what documents the inspector wants to see. In rare cases, such as when your risk manager is a new employee, the inspector will give you time to gather the requested documents.

Normally, inspectors want to see:

• OSHA 300 log and any associated OSHA 101 forms (first notice of injury)

• company hazard communication training program

• log of all MSDS in your possession

• copy of your lockout/tagout plan

• copy of your hearing conservation plan

• blueprints of your facility (if the incident occurred in a facility)

• training records for each exposed employee

• a list of all employees

Keep a record and a copy of every document you provide to OSHA, who provided it, and when it was provided. If documents are provided in person, ask the person receiving the documents for a receipt.

At this point, you have a legal right to have the OSHA inspector come back with a warrant. However, this is generally not a good approach. Warrants are always issued, and OSHA will then come back with a vengeance. OSHA believes that businesses that request warrants are hiding something, and inspectors will stop at nothing to find it. The only situation where this will work is if you need time to clean up an obvious violation, but that is very risky move.

The next step is the “walk around.” This is where the inspector asks to be taken to the site where the inspection will occur—usually the place where the accident occurred or the complaint was filed.

You are in control of how you get to that site. Follow a route with the least likelihood of OSHA problems along the way. The inspector may not be looking for problems, but any violation in plain sight can be written up. So, as you start for the site, notify the department head where the inspection is taking place to join you on your arrival. This gives the department notice of what is coming and provides you with additional assistance.

If the inspector identifies hazards that are in plain sight and you can correct the problem immediately, you should do so. This may be as simple as closing an electrical panel door or the hazardous materials cabinet. Have someone else do this so you do not spend any time away from the inspector. You don’t want to miss anything the inspector is looking at, photographing or taking notes about.

If the inspector takes a picture, you should also take a picture from the exact spot and angle as the inspector. Any video tape should be taken the same way. You want to specifically be prepared to deal with any issues brought up in photographs and to identify issues that the inspector sees. Do not be afraid to ask questions. “Why are you taking that photograph?” may provide an answer so you can prepare your defense.

The inspector has the right and may request the opportunity to interview employees. This can take place during the inspection or at a later date. Try and postpone the interviews if you can. There are valid reasons for doing this: an employee who is not at work, or faces a time crunch, especially if removing the employee will create a hazard. By postponing the interview, your attorney can prepare him. For the interview itself, the employee has the right to bring a union or shop steward or his own attorney, but no management personnel are allowed.

Management personnel can be interviewed by OSHA. Managers also have the right to an attorney, and you should make sure the company attorney attends.

After the inspection is over, one of two things may occur. The inspector may wish to have a closing conference right then, or you will be told that further investigation is warranted. No matter what, pump the compliance officer for information. The more you learn, the better you can solve problems and prepare for any possible defense.

If you are not learning what the problems are, press to find out what the possible citations are, and start at that moment to solve them. OSHA looks kindly to companies that have resolved issues before they are cited. If you resolve an issue, notify the OSHA inspector immediately and describe how you will make sure the situation does not recur.

There are four types of violations that a ski area or any company can receive: 1) serious; 2) willful; 3) other than serious; 4) repeated.

Serious violations are issued when there is a substantial probability the hazard could cause death or serious physical harm. Penalties can range up to $7,000. Good faith efforts to clean up and solve problems, as well as a good history, can help keep fines lower.

A willful violation means the company knew of the hazard, knew it violated OSHA standards, and made no effort to eliminate it. Penalties can range up to $70,000 for each willful violation.

Other than serious violations are discretionary violations where serious hazard or death are unlikely. A $7,000 fine is possible, but rarely imposed.

Repeated violations are those for which a business has been previously cited, even at another facility, within the past three years. The fine can be up to $70,000. This is why OSHA inspection outcomes should be shared with everyone in the company.

If you are cited, you have the option to appeal the citation, which you should do. Frequently the fines can be reduced, sometimes significantly.

OSHA investigations are rarely a good thing. Running a safe operation, making sure you follow the OSHA standards, and keeping your employees happy go a long way in keeping this government wolf at bay.