IN THE FIELD-OSHA Enforcement Trends 2025

How contractors can survive new era of aggressive inspections

Over the past few years, OSHA has been getting more and more aggressive. Although recent “doomsday prophecies” have been circulating in the news, we have seen no signs of OSHA slowing down. In fact, we’ve seen first-hand examples of enforcement requiring employers to up their “OSHA game” considerably. And right away.

This trend has resulted from several factors. First, in January 2023, OSHA issued a memorandum regarding “instance by instance” (“IBI”) violations. These violations are issued per employee or per instance. For example, rather than issuing a single violation for failing to train 10 employees, OSHA issues 10 separate violations – one for each employee who was not trained. OSHA previously limited IBI violations to

“willful” situations but has expanded the policy significantly to allow IBI violations any time OSHA concludes issuance would achieve a “deterrent goal.” Since this time, we have seen more IBI violations, which has significantly increased penalties and made cases more difficult to settle.

Second, although some might deny this (even though they know it’s true), knowing the OSHA Area Director used to mean preferential treatment like getting better outcomes based solely on that relationship. Now, those relationships carry less, if any, weight.

OSHA generally seems less interested in settling cases early, even if you and the Area Director are pals (or, more often, you think you are). More frequently we are seeing cases with strong defenses not getting any attention. When you can’t get anyone to listen, especially early in the case, expect to spend more time, more money defending an OSHA matter. In short, you have to work harder to truly convince OSHA of your position.

Third, OSHA no longer “groups” violations the way it did previously. Of course, yes, sometimes OSHA does group violations, but we’ve seen much less of this. As a result, instead of receiving one item in a citation, with parts “a”, “b”, and “c” (with one penalty), now employers are receiving three separate violations – all with penalties. Once again, this reflects a common theme – that is, aggressive enforcement, full steam ahead.

With these trends in mind, what can a contractor do to protect itself? For starters, contractors must (not should) know their rights during an OSHA inspection. This prevents an inspection from going sideways and the outcome from getting out of hand. Second, contractors must know what OSHA believes is important, if not required, and why. This is the only way to protect yourself – and, in turn, get the best outcomes. Some of the most important rights and considerations are addressed below.

Fourth Amendment

Employers are entitled to Fourth Amendment protection against unreasonable searches and seizures; accordingly, an OSHA inspector needs one of two things to proceed with an inspection: a warrant or your consent. Inspectors, formally known as Compliance Safety and Health Officers (“CSHO”), almost never show up with a warrant. So, they need your consent to proceed. Interestingly, a CSHO may never ask, “Do you consent to this inspection?” Instead, more likely, the CSHO will describe what he or she plans to do and then ask if you have any questions. When you answer, “No, that’s fine,” you’ve effectively just consented. This is implied consent.

Since a CSHO will invariably need your consent for the inspection to proceed, this provides an opportunity (prior to consenting) to negotiate a reasonable scope and reasonable conditions for the inspection. For example, you might tell the inspector, “We are inclined to consent to this inspection, but before we do, we want to ensure that we have a clear understanding of what the inspection will entail – essentially what we are consenting to – and also, the protocol for the inspection activities.” This should facilitate a productive discussion with the CSHO.

Even if you consent to the inspection, you can still request that the inspection be delayed for up to one hour pending a critical management representative (including outside legal counsel) appearing at the site. Keep in mind, if a CSHO is unwilling to negotiate a reasonable scope for the inspection, you believe there’s no probable cause for the inspection, and/or you need additional time (for example, someone on your team can’t get to the site in time), you might insist that the CSHO obtain a warrant. “We deny consent.” You can actually say that.

The opening conference is critical

The first stage of an OSHA inspection is the opening conference. The CSHO is required to explain why the employer is being inspected, including whether it is a programmed or unprogrammed inspection. We always ask about this. If the inspection is due to an employee complaint, the CSHO is obligated to provide the employer with a copy of any written complaint (with the name of the employee redacted). We always ask for a copy and, invariably, get it.

Section 8 of the OSH Act of 1970 states that inspections must be conducted in a “reasonable manner.” You have the right to insist that a reasonable scope and protocol be established for the inspection. If you feel the CSHO is overstepping the proper boundaries, you can always reference this basic OSH Act requirement. Ensuring a proper scope of the inspection is critical. For example, if the probable cause for the inspection is an employee complaint regarding equipment used and located in only one part of the site, the inspection should be limited to that part of the site.

Document requests

Documents, documents, documents. Have you heard that said before? Documents are critically important. Why? You need them! Contractors must know that certain documents are literally indispensable to certain OSHA defenses. For example, you must have disciplinary records if you want to defend a matter, arguing that the employee engaged in misconduct. Also, you need evidence that you have conducted jobsite inspections and/or audits and/or walks. This is the third element of the unpreventable employee misconduct defense. Furthermore, the OSHA multi-employer citation policy requires that “controlling employers” (oftentimes, general contractors, but also frequently, simply higher tier contractors who subcontract with lower tiers) exercise reasonable care to detect and prevent violations. You need records of these efforts.

More fundamentally, at the start of an inspection, the CSHO will undoubtedly request that you provide certain records, including injury and illness logs (OSHA

forms 300, 301, and 300A). These records must be produced within only four hours if requested. As a result, you should always have your 300 logs in acceptable form and ready to be produced, quickly.

For any additional document requests, employers should ask that all requests be made in writing and directed to a single company representative—such as legal counsel. Also, any sensitive documents should be reviewed for confidential business information

and/or trade secrets. Any privileged documents – those protected by the attorney-client privilege should not be produced.

The walkaround

During this phase of an inspection, the CSHO will walk the site, gather evidence, and seek to identify potential safety and/ or health hazards in the workplace. The CSHO is authorized during this phase to take photographs, videos, and measurements. Importantly, an employer representative (including legal counsel) has the right to accompany the CSHO at all times and take the same photographs as the CSHO (“side-byside photographs”), videos, measurements, and samples. If the CSHO points out any areas of concern during the walkaround, you should correct any obvious issues but not admit to any violations. You gain nothing by admitting to a violation, and, more importantly, how would you even know if you are correct? After all, OSHA needs to prove four elements to establish any one violation. It is essential that you know all four elements:

• The standard applies,

• The employer failed to comply,

• Employees were exposed, and

• The employer knew or should have known.

Interviews with employees

Although the CSHO is entitled to conduct interviews, a notable distinction exists between hourly employees and those in management. Although the CSHO may interview hourly employees privately, an employer representative, including outside legal counsel, has a right to participate in all management interviews, in part because any admissions made by management may be attributed to, and used against, the employer.

In addition, hourly, non-supervisory employees do have the right to request that a personal attorney or union representative be present during their interview. If honored by the CSHO, this would negate any private interview of the hourly employee.

Understanding the inspection process and limits of OSHA’s inspection authority will enable employers to obtain positive outcomes in the inspection process. This, in turn, may translate to less – or even no –violations being issued against the employer. Please consider implementing these OSHA inspection best practices now, before you receive the proverbial “knock on the door.” •