A Roofer’s Guide to Safely Navigating an OSHA Inspection

Almost every American can recite his or her Miranda rights. We have all seen enough cop dramas and world’s wildest police chases on prime-time television to know that when the police, FBI or other law-enforcement agencies get involved that we have the right to remain silent, and we know that everything we say can and will be used against us in a court of law. Unfortunately, many roofing contractors in the construction industry do not remember their rights when an OSHA inspector arrives at their job sites, and this can lead to hefty fines. It is very important for residential and commercial roofing contractors to remember OSHA inspectors are adversaries when they visit your job site, and they are not inspecting your equipment and interviewing the crew out of curiosity. When an OSHA inspector arrives onsite, he or she is usually there to gather evidence to issue a citation.

One of the most discouraging situations that we have seen from OSHA’s recent push for larger fines and more citations occurs when honest men and women in the roofing industry open their arms to OSHA inspectors who arrive at the job. Roofing contractors and their crews are not criminals, and most truly have nothing to hide. The majority of contractors in the industry are hesitant to take a firm stance against an apparently well-to-do government agent on their job site. However, a roofer who opens up and allows OSHA inspectors free and unlimited access to a construction site is making a costly mistake. Therefore, it is important to remember that when OSHA visits on your next project, there are a few key questions that every roofing contractor needs to be able to answer about the inspection.

WHY IS OSHA ON MY JOB SITE?

OSHA will investigate a job site for a number of reasons. Inspectors will show up if an employee has issued a complaint against you, if there is a recent fatality or if there is an imminent threat identified. However, in recent months, OSHA has been after
the residential and commercial roofing industry through a systematic targeting method. The dangers of fall-related injuries in the industry have been well-documented, and this has prompted inspectors in your area to be on the lookout for roofers. Additionally, roofers are the easiest to cite due to the fact that roofing is a highly visible construction trade and an inspector does not have to use much effort to determine the likelihood of a dangerous situation that needs inspecting.

DO I HAVE TO COMPLY? HOW SHOULD I COMPLY? WHAT HAPPENS IF I REFUSE OSHA ACCESS?

First and foremost, you need to know that OSHA has a legal right to inspect your job site. OSHA has what is called “administrative probable cause” to inspect and investigate your project. OSHA’s probable cause is more easily obtained than that of other agencies. An officer of city, state or federal law enforcement needs a much more specific probable cause to enter a private citizen’s property. When an active construction job is taking place, there is an inherent risk of danger and injury, and this gives OSHA all the administrative probable cause it needs.

This is not to say that you or your site superintendent does not have the right to deny OSHA access to the project and demand that the inspector get a warrant. The site superintendent has the option to consent to OSHA’s inspection or deny the inspector access to the project. The superintendent is well within his or her rights to tell the inspector to get a warrant. This is not an easy fix, however. If you tell OSHA to get a warrant, it most certainly will. Because of OSHA’s broad power to oversee safety within the U.S., the agency can obtain a warrant from a judge or magistrate. Once OSHA obtains a warrant for a site inspection, its inspection can become much more invasive. This means OSHA inspectors can get permission from a judge to examine documents; conduct extensive interviews; and also perform scientific tests on items, such as air quality, presence of combustible material or any other danger.

The bottom line is that it is rarely a good idea to tell an OSHA compliance officer to get a warrant. The reasoning behind this has to do with the scope of OSHA’s inspection rights under the Code of Federal Regulations (CFR). The CFR demands that OSHA’s inspection be “reasonable.” This essentially means that the agency is limited to inspect only the men, equipment and materials that are within “plain sight.” “Plain sight” is a doctrine borrowed from criminal law and the Fourth Amendment, which says that a government agent may not sample or manipulate anything that is not within his or her reasonable line of sight. If an agent violates this doctrine, it is possible all the information he or she obtained during the inspection may be suspect.

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About Anthony David Tilton

Anthony David Tilton is a construction-law associate with Trent Cotney P.A, Tampa, Fla. He works primarily on matters relating to OSHA defense, construction litigation and arbitration, licensing and building code-violation defense.

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