Some Mechanics of Inspections by the Tennessee Commissioner of Labor and Workforce Development under Tennessee’s Occupational Safety and Health Act of 1972 (“TOSHA”)

By John W. Simmons¹

Under Tennessee’s Occupational Safety and Health Act of 1972 (“TOSHA”), employers in Tennessee may be inspected by the Commissioner of Labor and Workforce Development as part of Tennessee’s efforts to enforce equal or greater standards than those required by the Federal Occupational Safety and Health Act (“OSHA”).²  Tennessee’s Commissioner of Labor and Workforce Development or the Commissioner’s designated compliance officers (collectively “the Commissioner”) have the authority, upon showing proper credentials, to enter “without delay” and “at a reasonable time,” any work site where an employee of an employer is working and, in connection with this entry, to “inspect and investigate” during working hours and at other reasonable times the “conditions, processes, structures, machines, apparatus, devices, equipment and materials in the places of employment.”³  The Commissioner is also empowered to “question privately” any employer or other “owner, operator, agent or employee” in connection with such an inspection.  As further part of such an inspection, the Commissioner or designated compliance officers are authorized to review records required by TOSHA and its implementing regulations, as well as other records “directly related” to the purpose of the inspection.⁴

A private employer typically will do its best to accommodate the Commissioner’s demand for entry and an inspection in the hope of not getting in more trouble under TOSHA.  However, an employer does have the right to refuse initial access to the Commissioner since the inspection is a government action seeking access to private property. The Commissioner’s instructions to a compliance officer faced with such a refusal (whether it is a refusal to permit the compliance officer to enter the place of employment; to inspect; to review records; or to question any employer or other agent or employee; or to permit a representative of employees to accompany the compliance officer doing the physical “walk around”) are that the compliance officer may either terminate the inspection or may limit the inspection to what the employer agrees to provide and allow.  The compliance officer also is directed to attempt to determine the reason for the refusal and is then directed to immediately report this conduct to various officers in the Tennessee Department of Labor, Division of Occupational Safety and Health.  At that time, a decision will be made as to whether to seek compulsory process.  In other words, the State may then go to an appropriate officer who may issue an order or warrant requiring the inspection that was denied by the employer.

Typically, an employer is not told in advance that an inspection is going to occur.  Tennessee law actually makes it a crime for advance notice of an inspection under TOSHA to be provided without authorization from the Commissioner or an authorized designee allowing this advance notice.  There are some situations where advance notice is permissible and may be approved, including cases where there is an imminent danger and advance notice will enable the employer to abate it as quickly as possible; circumstances where inspection will be most effectively conducted outside regular business hours or where special preparations are needed; and inspections where advance notice is necessary to assure the presence of representatives of the employer and employees or other appropriate personnel.  However, absent one of these special circumstances, advance notice is typically not given and in most instances would not be permissible.  Compulsory process may also be sought in advance of an inspection under TOSHA where the employer’s past practice indicates that a warrantless inspection will not be voluntarily allowed, where an inspection is scheduled far from an area office so that obtaining a warrant in advance would potentially save significant time and resources in the event that a warrantless inspection was denied by the employer, or when the inspection requires special equipment or expert assistance and the Commissioner does not want to arrange all this and then have a warrantless inspection be denied by the employer.

Most often, however, inspections are warrantless; and the employer first learns of it when a TOSHA compliance officer arrives at a site of employment, presents his or her credentials to the owner or other person in charge and demands access.  When an employer is faced with such a demand, a TOSHA compliance officer also should be expected to explain the nature and purpose of the inspection, and in a general sense the scope of the inspection and what records are requested for review.⁵  Compliance officers are authorized to take environmental samples and photographs and are also empowered to use devices to measure employee exposures.  Compliance officers have the authority to question privately any employer, owner, operator or agent or employee of an establishment.⁶  A person, of course, has the right to refuse to answer questions until compelled and even then may still have the right to refuse to answer.  Further, a person would also have the right to seek advice of counsel before responding.  Compliance officers are directed to conduct inspections in a manner that does not unreasonably disrupt the operations of the employers business.⁷  At the end of the inspection, the compliance officer should confer with the employer or with his or her representative and provide a review of any potential violations disclosed from the inspection.  At this point, the employer should also be given the opportunity to provide any other information the employer might want to raise.⁸

During the inspection, a compliance officer would usually be accompanied by an employer representative.  If there is an employee representative, then that person would also often accompany the compliance officer during the inspection.⁹  The compliance officer may allow additional employee representatives or employer representatives to accompany him or her if this also will further aid in the inspection.  If any of these individuals (employer or employee representatives) is determined by the compliance officer to interfere with a “fair and orderly” inspection, then the compliance officer is authorized to deny this person the right to accompany the compliance officer during the inspection.¹⁰  If there is no employee representative, then a compliance officer is directed to consult with a “reasonable number” of employees on safety and health matters during the inspection.¹¹  When a compliance officer consults with employees on matters about health and safety during the inspection, the compliance officer is also authorized to receive, and employees are authorized to provide, any further complaint of a violation of TOSHA.¹²

What happens after the inspection?  The Commissioner is directed to review the inspection report of the compliance officer.  Based on that review, if there is a belief that a standard, rule or other order has been violated, the Commissioner will issue a citation to the employer.¹³  A citation “shall be” issued even though after the employer learned of the alleged violation, the employer immediately abated or initiated steps to abate the alleged violation.  However, a citation must be issued reasonably promptly, and in no event later than six months following the inspection.¹⁴  Once the citation is issued, then the employer still has the right to contest the citation and the various procedural mechanisms for challenging or enforcing a citation begin to run.¹⁵

Employers are encouraged to cooperate with inspections, but an employer should also know his, her or its rights under the law.  If you wish further information, please contact John Simmons at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .