During an OSHA inspection, the compliance officer will most likely request certain documents such as the manufacturer’s manual, safety and health policies, internal or external safety and health audits, videotapes, minutes from safety meetings, trade association data, employee complaints, etc. Initially, the employer representative should ensure that all document requests are memorialized in writing so there is no confusion as to what is requested. When responding to these document requests, employers need to be mindful of potential privileges, e.g., attorney-client privilege covering an internal safety audit so that they are not waived unintentionally. Employers also need to be vigilant in protecting any documents containing trade secrets, commercially sensitive or other confidential financial information.
As a reminder, documents submitted to OSHA will normally be subject to Freedom of Information Act (“FOIA”) requests. Accordingly, employers should, among other things, carefully consider the need to mark and/or redact applicable documents containing trade secrets, commercially sensitive or other confidential financial information and attaching an affirmative statement in their production that they are being produced to OSHA with the expectation that they will not be publicly disclosed. Doing so may not automatically exempt such documents from disclosure under FOIA but should help bolster the employer’s argument that they are exempt, if necessary. Specifically, Exemption 4 of FOIA has been found to protect documents where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy.
During the course of a normal OSHA inspection, the compliance officer requests these documents from the employer on a voluntary basis with the limited exception of certain documents that must be provided under the Occupational Safety and Health Act within a certain set time period, e.g., OSHA logs. The employer should work out an agreement and confirmed in writing with the compliance officer for a reasonable time period to produce the documents which may depend on factors such the scope of the requests and where they are maintained.
If the employer does not produce the requested documents, OSHA may issue a subpoena for them. During the inspection process, OSHA generally has broad authority to subpoena relevant documents to its inspection. Most management attorneys advise their clients to cooperate with OSHA in producing these documents during the inspection process to avoid a subpoena. Prior to the issuance of a subpoena, the employer generally has more control and flexibility in working with the compliance officer to satisfy these documents requests. This same principle is true when the compliance officer requests to interview a supervisory employee. In the absence of voluntarily producing the supervisor for questioning, OSHA may issue a subpoena duces tecum (for testimony) which most employers would rather avoid for numerous reasons, e.g., a transcript under oath subject to FOIA may be of particular interest to plaintiff’s counsel in a general liability claim involving the same injury or fatality.
Employers are also reminded that failure to comply with an OSHA subpoena may, although rare, result in an arrest warrant. On July 6, 2022, Bloomberg Law News reported that a judge in the United States District Court for the Eastern District of Missouri recently issued such a federal arrest warrant against the owner of a commercial printer and packaging firm for failing to comply with OSHA subpoenas. Prior to the issuance of the arrest warrant, the court found the owner in contempt and levied a fine of $100 per day until the subpoenaed documents and testimony were provided.
Ultimately, to what degree an employer should cooperate with OSHA during an inspection remains a fact-sensitive question and when it does produce documents and/or permit supervisory interviews, counsel should be consulted to help navigate the employer through this often challenging process. As a final reminder and alluded to above, how an employer addresses these issues may often have a significant impact on collateral litigation over the same injury or fatality and such general liability claims often expose the employer to significantly more damages than OSHA penalties, thus, making these strategic considerations even more important.