Your office assistant just let you know that an investigator from OSHA is on the phone, what do you do? All of a sudden your heart starts to race, you start sweating, and you have less than a split second to decide whether to take the call from the OSHA investigator or call your attorney. What do you do?
These initial informal phone calls are becoming more and more frequent from OSHA. First and foremost, you must have a plan in place, if you ever receive such a call.
The United States Occupational Safety and Health Administration (OSHA) separates complaints into two categories: formal and non-formal. If OSHA receives a formal complaint, it may send an unannounced inspector to observe operations within the dental practice. When responding to non-formal complaints, OSHA may initially contact a dental office in writing or by telephone. In order to properly manage the risks associated with an OSHA investigation, practice owners should develop a plan of action for an OSHA investigation.
Letters from OSHA
Typically, when OSHA receives a non-formal complaint, its first investigative step is to send a letter to the owner of a dental practice. This letter will typically describe the alleged violation and ask the practice owner to investigate the claim and respond to the allegation within a specified time. When responding to an OSHA letter, practice owners should keep several things in mind.
First, the practice owner should provide a complete and truthful response to OSHA’s request. The practice owner should never knowingly provide false information to OSHA [which could lead to criminal sanctions]. However, the practice owner should limit his or her response only to the specific alleged violations stated in the letter. There is danger in providing too much additional, unrelated information to OSHA, which could lead to a larger investigation or to other potential violations.
When responding to OSHA’s request, it may be helpful to provide documents that will show the office’s compliance with workplace safety regulations. Again, the practice owner should only provide documents that directly relate to OSHA’s current investigation.
For example, if lack of required PPE is cited then documents one could send are those related to purchases from a personal protective equipment supplier. Statements or records proving the required equipment is being purchased and used may also be useful. practice owners should not send records of opinionated emails or statements.
In responding to the investigation, a practice owner should be “leery” about making comments regarding specific employees. Comments that OSHA interprets as “anti-employee” may make a bad impression. The fact that a dispute with an employee or former employee led to the filing of an OSHA complaint does not necessarily mean that the complaint originated from a current or former employee [although it is a very real possibility].
In some cases, OSHA will share a copy of the practice owner’s response with the complainant and request their comments. OSHA may perform a follow-up inspection after reviewing all information available from the letters; however, this is rare because follow-up inspections are typically chosen at random. If the practice owner fails to sufficiently respond to OSHA’s request or does not respond at all, OSHA will perform a follow-up inspection for violations.
Telephone Calls From OSHA
When investigating a non-formal complaint, OSHA may call a dental practice, in addition to sending an investigatory letter. Responding to OSHA telephone inquiries poses several unique risks for practice owners.
The practice owner will be asked to comment on allegations that he or she has not seen in writing. The inspector will likely refer to specific OSHA standards, which the practice owner may not have available for reference. The inspector will ask questions about office conditions that the practice owner has not had an opportunity to investigate. Moreover, one or both of the parties to the conversation may not understand what the other party means by the questions and answers.
For the above reasons, when responding to telephone OSHA investigations, the practice owner runs the risk of making statements that are not in his or her best interest or that may be interpreted as admissions to violations. For this reason, some practice owners should be very cautious before commencing with a telephone interview with an OSHA investigator.
Developing an Office Protocol
To avoid the problems, practice owners should create a risk management plan for responding to calls from OSHA inspectors. Once formulated, the office protocol should be clearly explained to and followed by all office staff.
First, only the practice owner should answer telephone inquiries from an OSHA inspector. Office staff who may answer the telephone should immediately contact the practice owner if an OSHA inspector calls. If the practice owner is not in the office, this person should take a message and assure the inspector that the practice owner will follow up with them as soon as possible. Staff should never respond to the inspector’s questions, because the practice owner may be held responsible for any misstatements by staff members.
Before responding to an OSHA inspector’s inquiries, the practice owner should take the inspector’s name and the name of the office from which they are calling. The practice owner should then verify that the information provided is accurate by cross-referencing the information with directory assistance. Occasionally, scams have involved persons falsely identifying themselves as OSHA inspectors.
Once the practice owner has verified the identity of the inspector, he or she should inquire whether the complaint is written or unwritten. If the complaint is written, the practice owner should request a copy of the complaint to review prior to responding to the investigator’s verbal questions. This will also provide the practice owner with an opportunity to investigate office conditions before responding to the investigator.
As with a written investigation, the practice owner should confine the conversation to the violations alleged in the complaint. By discussing items not referred to in the complaint, the practice owner risks expanding the scope of OSHA’s investigation. If the inspector’s questions begin to go beyond the scope of the complaint, politely but firmly object to answering those questions.
Practice owners should “never,” “never,” “never” argue with the investigator. Again, the practice owner should be truthful and should resist the urge to make disparaging comments about the person who may have filed the complaint. Upon request, the practice owner should send the inspector documentary evidence that is relevant and supports the practice owner’s position on the alleged violations.
The first step to OSHA compliance is having an OSHA manual, which is an absolute must. It is amazing how many dental offices do not have an OSHA manual, or do not have an up-to-date OSHA manual. The second critical step to OSHA compliance is proper office training.
By formulating an office protocol to handle OSHA investigations, practice owners can take steps to adequately protect themselves during the investigation process. It is crucial that practice owners plan for OSHA investigations and ensure that the office staff is aware of the protocol, to avoid unintentionally admitting a violation due to an employee’s statement to an investigator.
Stuart J. Oberman, Esq.
Stuart J. Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 28 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company.
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