When OSHA/OHS inspectors show up at a workplace, the first people they usually encounter are the workers and supervisors (which, for simplicity’s sake, we’ll refer to collectively as “workers”) at the site. What transpires between those workers and the inspector in those few moments can make or break the inspection.

This series will explain what your workers need to know about OSHA/OHS inspections so they can respond appropriately to inspectors’ demands if and when an inspector shows up. At the conclusion of the series, I’ll provide a Model Policy (in the Tools section of SafetyXChange) that you can adapt and use to make sure your workers understand how to protect your company’s and their own rights during an inspection.

Cooperation vs. Self-Incrimination

The start of an OSHA/OHS inspection is a crucial period and one fraught with tension. One false or rude remark by a worker and you might be in for a rough ride. That’s why most companies tell their workers to be courteous and cooperative when the inspector shows up. In fact, there’s a legal duty to extend cooperation to OSHA/OHS officials carrying out inspections.

On the other hand, you don’t want your workers to be too cooperative. Employer and workers have legal rights during inspections. Caving in to—or worse, anticipating—the inspector’s every demand can compromise your legal position and expose you to liability. More than one company has been hit with citations or had their fines increased because their workers “gave away the store,” according to an Illinois lawyer.

You Have the Right to Question Inspectors

OSHA/OHS inspectors are not gods. For example, they can’t just ask for and help themselves to any information they want. Their authority is subject to your rights. The problem is that you need to understand and assert those rights. For example, you might have to turn down an inspector’s demands for certain information the government is not entitled to see, such as privileged audit reports. If you just roll over, you might end up forfeiting your rights.

The Search Warrant Conundrum

Search warrants are a perfect illustration of this. Since 1978, U.S. courts have recognized that OSHA inspectors must have either a search warrant or valid consent to conduct an inspection. You may deny inspectors access to your facility or jobsite until they come back with a search warrant. Some people in the field recommend that you always ask to see a warrant, if for no other reason, to buy a little extra time. Others recommend a less confrontational approach. “They’re going to get in anyway, and the inspection is going to be a lot more comprehensive when they return if you insist on a warrant,” warns a Florida OSHA lawyer.

Ultimately, the employer must decide whether to ask an inspector for a warrant. The fly in the ointment: If you opt for a “let-me-see-your-warrant” strategy, you might have to rely on the workers on the scene to assert that right on your behalf. If you’re not there, in other words, it falls to one of your workers to demand to see a search warrant.

Search Warrants in Canada

In Canada, the rules are slightly different. Generally speaking, provincial OHS laws grant inspectors broad rights to conduct workplace inspections to determine if an organization is in compliance with regulatory requirements. This includes access to the workplace and the right to see and make copies of documents without a warrant.

If, on the other hand, the inspector is there not to conduct an inspection but an investigation, he or she needs a warrant. In contrast to an inspection, an investigation is undertaken in response to suspicion of wrongdoing for the purpose of gathering evidence for use in a prosecution. Since it’s essentially a criminal procedure, it implicates civil rights and liberties under the Charter, such as the right against self-incrimination and the right to a fair trial.

As a practical matter, however, since the same government officials generally have the authority to conduct inspections and investigations, it is often difficult for organizations to determine if they’re being inspected or investigated.

Conclusion

The search warrant is just one example of legal protections and rights that need to be asserted early in the inspection process, and in many cases, asserted by workers on the scene. Next week, in Part 2 of this series, we’ll look at what can go wrong when workers fail to assert an organization’s rights appropriately and how to remedy the problem.

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