Regulatory Compliance: What to Expect During a Cal/OSHA Inspection

CDA Practice Support

The following Q&A is excerpted from Chapter 7 of the CDA Legal Reference Guide for California Dentists.

What happens during a Cal/OSHA inspection?

Complaint-based inspections are unannounced. Cal/OSHA will request the presence of the employer or a representative for the inspection. You can accompany the inspector during the walkthrough of the facility, but you may not be present during the inspector’s interviews with staff. An employee or employee representative may also accompany the inspector during the walk-through. The inspection starts with an opening conference in which the inspector provides information on the purpose and scope of the inspection and how it will be conducted. The inspector reviews required written plans and then walks through the facility taking photographs and speaking with staff as needed.

At the end of the walk-through, the inspector meets with the employer for an exit conference. If violations were observed, the inspector may issue citations during the exit conference or provide the employer with a preliminary report, with citations to be issued at a closing conference that will be scheduled later. During the closing conference, Cal/ OSHA staff review their findings with the employer, including the nature of the violations and how they can be abated. Penalties are proposed and the employer is informed of the requirement to post a citation and other notices so employees may view them. Cal/OSHA informs the employer of the opportunity to hold an informal conference with the district manager to discuss the citation and penalties and of the separate opportunity to appeal. Cal/OSHA’s inspection procedures are detailed in its policies and procedures manual available at dir.ca.gov/samples/search/querypnp.htm.

Do I have to provide the Cal/OSHA inspector access to my staff and office?

Always verify the identity of individuals to whom you allow access to your office. Cal/OSHA prefers to have your permission to conduct the inspection. An inspector may be willing to wait while you finish treating a patient but will not wait beyond a reasonable time. If you are not present at the office when the inspector arrives, Cal/OSHA staff will attempt to contact you by telephone to gain permission. If the inspector cannot contact you, they will document the attempts to gain your permission and then will commence the inspection. If you refuse permission, the inspector will report back to the district manager who will initiate the process for obtaining a warrant or taking other appropriate action. If a warrant is served for an inspection, that warrant is a court order mandating the inspection, and refusal to comply is likely to result in fines or possible incarceration.

I received a letter from the Division of Occupational Safety and Health regarding a complaint — what should I do?

Respond to Cal/OSHA’s request for information to the extent possible. Provide photographs if they are useful. Once you have provided the information, do not expect Cal/OSHA to send you a notice that you have satisfactorily answered its inquiries. If Cal/OSHA finds your response unsatisfactory, an unannounced on-site inspection will occur. Cal/OSHA may choose to investigate some nonformal serious complaints by telephone or fax. It contacts employers first by telephone, then by faxed letter. The employer has five working days to respond; employers who do not respond are scheduled for an on-site inspection. Follow-up inspections may occur for some of the complaints handled through this process.

What triggers a Cal/OSHA inspection?

Cal/OSHA reviews all complaints and classifies each as to whether it presents an imminent hazard, is a serious complaint or is a nonserious complaint. Complaints from self-identified employees, employee representatives and government representatives are classified as formal complaints. All formal complaints trigger an on-site inspection. Nonformal complaints are those made by nonemployees and employees who do not identify themselves. Nonformal serious complaints are investigated by telephone first and may be followed by a letter or an on-site inspection. Nonformal, nonserious complaints are investigated by a letter to the employer in lieu of an on-site inspection. However, Cal/OSHA district managers have some discretion to conduct on-site investigations of these complaints. A complaint is invalid if the district manager determines it involves willful harassment of an employer. Cal/OSHA is not obliged to provide the employer with the identity of the complainant. Cal/OSHA also conducts “programmed inspections” when it is targeting an industry. For example, agriculture and the garment industry have been targets of programmed inspections. There is also a possibility that your practice will be inspected if a neighboring dental office has had frequent complaints and inspections.

I was cited by Cal/OSHA — what should I do? Do I need an attorney?

At the closing conference, Cal/OSHA staff will have reviewed their findings with you or your representative. You may choose to take one of these actions:

■ Correct the violations and pay the proposed penalties. In this scenario, you effectively agree that there were violations and you will not appeal the citations.

■ Appeal the citations and proposed penalties. File an appeal with the Occupational Safety and Health Appeals Board within 15 working days of receiving citations.

You can also request an informal conference with the district manager while you await your appeal hearing. An informal conference allows you to present evidence, offer explanations and clarify issues. After an informal conference, a district manager will determine if it is appropriate to withdraw or amend citations and revise penalties. An informal conference does not negate your right to a hearing before the appeals board, nor is it the same as the prehearing conference scheduled by the appeals board although the scope is the same. You may request an informal conference any time before the day of the appeal hearing. Additional information on the appeals and hearing process and on informal conferences can be found in the Cal/ OSHA policies and procedures manual. Whether you need or want an attorney depends on the nature and scope of the citations. A few nonserious violations may not warrant it, but seeking legal counsel is advisable for serious violations such as an injury to an employee or an allegedly unsafe work environment.

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