The two most common types of regulatory inspections you face as a construction business owner are safety and environmental. Construction is a common target for both kinds of inspection, with its high fatality rates and the dangerous demands of many construction jobs—from working at heights and with heavy duty equipment to dealing with hazardous chemicals.
Read on for a thorough overview of these two primary inspection types, and the practices that will fall under scrutiny of the authorities-that-be. We also look at how you can be best prepared for inspections so that you can avoid suffering a negative impact, or at least minimize it.
Why do construction companies get inspected—and why me?
It goes without saying that construction work is one of the most dangerous jobs in the U.S., topped only by fishing, logging and piloting an aircraft. In 2017 alone there were 965 fatalities on construction job sites, according to the Bureau of Labor Statistics’ National Census of Fatal Occupational Injuries. There were also 198,100 recordable construction injuries and illnesses in 2017, with almost 80,000 requiring days away from work.
We’ll talk about environmental inspections below. These are most relevant for companies that pass certain thresholds of noise levels, chemical usage or water waste, for example. Then we’ll take a more thorough look at safety inspections, as these can affect all construction businesses, whether they have one employee or one-thousand.
Who can conduct a construction inspection?
One of the maddening things about inspections is not being sure sure who has the authority to do them. So let’s break it down for the two main types, environmental and safety.
Environmental inspections are usually conducted by a government regulatory agency such as a state environmental agency of the federal Environmental Protection Agency (EPA). Different environmental code statutes differ in the authority they give the EPA and state governments—and in the leeway they give in terms of whether it must be an EPA officer or employee, or whether an EPA representative can come instead.
Safety inspections, on the other hand, are mostly initiated by the Occupational Safety & Health Administration (OSHA). OSHA handles U.S. occupational health and safety regulations for virtually every type of workplace, with just a couple of exceptions, and has the right under the Department of Labor to inspect any workplace at any time.
If OSHA sounds like an innocuous organization that will just slap your wrist gently in the case of missteps, be warned: OSHA fines can reach up to $70,000 per violation, so fines can add up quickly if they find several.
Some states have their own OSHA-approved state programs, which the OSH Act allows, provided the state can demonstrate that its regulations and enforcement will be “at least as effective” as the worker protection provided by federal law. As an example, California’s OSH Act enforcement is handled by Cal/OSHA, whereas Texas has federal OSHA offices throughout the state that oversee both government and private sector employers.
Employees or representatives of these governmental agencies are generally allowed to show up to conduct an inspection at any time, but you’re entitled to ask for their credentials at the door—and we recommend it.
If you do not object to an inspection, that is the same as consent—which means no warrant at all is required.
Construction environmental inspections
Like we said, the EPA and state environmental agencies are responsible for most environmental inspections, though OSHA does handle some “industrial hygiene” inspections. You also may do your own prevention-focused environmental inspection, such as a pre-demolition construction site inspection (see “How to prepare long-term” below).
Though the EPA is limited by the Fourth Amendment’s requirement that a search warrant be obtained before searching a private home or commercial building, these warrants have a lower threshold than criminal search warrants. The EPA just needs “administrative probable cause” to believe that an environmental violation is occurring or has occurred.
On the other hand, if you do not object to a search, that is the same as consent—which means no warrant at all is required.
Permits are big when it comes to environmental compliance and being prepared for environmental inspections. If you are a “major source” of certain air or water pollutants, then a permit is the first thing you’ll be asked about in the event your site is audited or inspected. You’ll also need a permit if you’re building on a wetlands. (Permits are required by OSHA for certain things, too. For instance, if you are demolishing or building a structure that is or is intended to be more than 36 feet high, Cal/OSHA requires a permit.)
Construction safety inspections
Again, because of the high incidence of injury and death in construction work, construction is a target industry for OSHA and routine, unannounced inspections are commonplace. Hence safety laws and regulations are something that every construction company needs to know about, regardless of your size and the scope of your work.
When OSHA comes around—especially on routine inspections—they’ll be trying to determine whether your team is working safely, including if you’re fulfilling your legal obligation of providing all the required safety information and training to your charges.
Inspectors will be looking for written safety plans, injury logs, and training records—all of which are required by law. Records are useful not only for inspections by OSHA but also for employers to get a sense of where their safety weak points are. From OSHA’s “Injury and Illness Reporting Requirements”: “When employers analyze and review the information in their records, they can identify and correct hazardous workplace conditions on their own.”
Aside from judging the adequacy of your injury log and safety plans (and carefully reviewing the information inside), OSHA inspectors will be keeping a keen eye out for all types of violations. For reference, here are the 10 most frequently cited standards following OSHA inspections:
2. Hazard Communication (29 CFR 1910.1200) [related OSHA page]
3. General Scaffolding Requirements (29 CFR 1926.451) [related OSHA page]
4. Respiratory Protection (29 CFR 1910.134) [related OSHA page]
5. Control of Hazardous Energy (lockout/tagout) (29 CFR 1910.147) [related OSHA page]
6. Ladders (29 CFR 1926.1053) [related OSHA page]
7. Powered Industrial Trucks (29 CFR 1910.178) [related OSHA page]
8. Fall Protection Training Requirements (29 CFR 1926.503) [related OSHA page]
9. Machinery and Machine Guarding (29 CFR 1910.212) [related OSHA page]
10. Eye and Face Protection (29 CFR 1926.102) [related OSHA page]
Remember, you can be cited just as easily for violations outside of the above categories, too.
What to expect when you’re (not) expecting an inspection
As Findlaw.com notes, inspections can be spurred on by agency compliance monitoring programs, citizen or employee complaints, administrative plans of enforcement, accidents or publicity.
Not every complaint is met with urgency by OSHA. For low-risk complaints, the OSHA office typically calls the employer to notify them of the complaint and then follows up with a letter requesting a response within 10 days.
Let’s say the complaint is more major, though, or this is a routine OSHA inspection—and they’re comin’ no matter what.
A first step in preparing for inspections, scheduled or unscheduled, is to establish a team of management-level personnel (i.e. an “inspection response team”) with a designated leader who will interact with government agency representatives. These should be people who are very familiar with your safety and health (and/or environmental safety) protocols, but who can also adeptly field any legal questions or challenges that are posed. If your primary compliance expert would freeze under pressure, consider appointing someone who’s close enough to the subject but also has the right people skills.
If you are notified of an upcoming inspection, you have the right to ask: Is it complaint-based? Industry-targeted? Random? If it’s complaint-based, you may be able to view the complaint in advance, so ask (but don’t speculate aloud about which employee may have made it—the inspector may red-flag you for possible retaliation, and that isn’t information you as an employer are privy to).
Also try to find out if it is based on a complaint about safety or ‘industrial hygiene’. An industrial hygiene inspection means testing such as noise monitoring or air sampling will likely be done. Be aware that you are entitled to have a representative on site conducting side-by-side tests to compare with the OSHA samplings.
Safety inspection preparation checklist
There are a few good articles online (a rarity, we know) listing the ways you should be prepared for an inspection. Each is a little different but the main points overlap. Without further ado, here’s our list:
1. If you know about it in advance, notify all company personnel about the date, time and scope of the inspection.
2. Ask to see an inspector’s credentials and have them sign into your job site or facility.
3. Establish a friendly, courteous relationship with the inspector from the start. Tell your receptionist or site supervisor to welcome them professionally.
4. Do not allow inspectors onto the premises without the appointed management personnel present.
5. Limit the scope of an inspection. You don’t have to provide a full tour. Ask what they need to see and take them to those areas of your site; do not perform staged demonstrations. (OSHA is entitled to see work as it is being done, but not to request special demonstrations. On the other hand, if a violation is in plain view, then the “plain view” doctrine applies—and a search isn’t needed).
6. Take notes of what the investigator is reviewing, and take photos of the things they are taking photos of. It’s important to have your own records.
7. Expect OSHA to interview your employees in interviews arranged by the appropriate member of your management team (off-the-cuff conversations should be limited to a few minutes by your inspection leader). You can ask workers about their interviews after the fact. If OSHA requests an interview with a management or supervisory employee, exercise your right to have a representative present.
8. If the agency finds few violations or infractions, they may not conduct additional inspections within a short time. If, however, the inspector observes multiple violations, you can expect periodic follow-up visits.
Violations found by OSHA can result in civil penalties ranging anywhere from less than $100 to $70,000, significant abatement costs, and even criminal prosecutions—not to mention negative media coverage and deteriorating employee relations.
How to prepare long-term
There are things you can’t fix—or fake—right before an inspection. To establish a strong safety culture, you’ll need to put in place safety training for your employees.
Safety training may sound difficult to implement. You’re already busy—and where do you start? If you don’t know where to begin, you can get help from your local OSHA chapter or office (in California, it’s the Cal/OSHA Consultation Service), your workers’ compensation insurance carrier, private consultants and vendor representatives. You can also glean tips from organizations like The Safety Council.
One example of how states are starting to enforce safety training: As of 1991, a written, effective Injury and Illness Prevention Program (IIPP) is required for every California employer.
Once you get safety training in place, one thing you can do to ensure it’s sticking is to perform regular internal inspections. Like OSHA inspections, some of these should be held without forewarning to get a true sampling of how the company is performing safety-wise.
You can do self-led safety inspections with or without a designated safety officer. That said, the person conducting the inspections should have a deep knowledge of what they are looking for.