Preparing for an OSHA inspection
'Plain view' rule allows expanded scope of visit
Reducing hazards is the key to a safe workplace. It means fewer injuries, workers' compensation claims, and absenteeism and a culture of safety. But with OSHA's emphasis on health care, it is also important to ask: How would OSHA view the health and safety program? Are you ready for an OSHA inspection?
Eric J. Conn, an attorney who heads the OSHA group at Epstein Becker and Green in Washington, DC, offers this advice for employers to be prepared for an OSHA inspection:
Develop and implement a comprehensive safety and health program.
Ensure written safety programs are current, accurate, compliant, and implemented.
Develop a formal program for reporting and resolving employee safety concerns.
Establish a Safety Committee that includes employee representatives to:
evaluate safety programs as written and implemented;
audit the workplace for potential hazards; and
review and discuss workplace incidents and near misses.
Conduct internal or external safety and health audits.
Whenever possible, audits, whether conducted by your Safety Committee, safety or operational supervisors, or third-party safety and health consultants or counsel, should be conducted at the direction of in-house or outside legal counsel to protect the audit findings under the attorney-client privilege.
Review recommendations from prior health and safety audits to ensure specific recommendations were addressed and problem areas are not ongoing concerns.
Ensure that new health and safety audit recommendations are addressed and that the steps taken to address the recommendations are documented.
Train staff
Familiarize Employees with OSHA Basics.
Ensure employees understand:
OSHA standards applicable to the employer's industry and workplace.
Special emphasis programs relevant to the employer's industry and workplace.
The employer's safety and health programs and procedures.
Any site-specific safety and health programs and procedures.
Familiarize Employees with Employers' OSHA Inspection Rights. Employees should understand that the employer has a right to:
Demand an administrative warrant from the inspector.
Reasonable inspection at reasonable times.
An opening conference.
A copy of formal employee complaints.
Escort Compliance Safety & Health Officer (CSHO) on inspections of the workplace.
Participate in management interviews.
Protect trade secret and confidential business information.
A closing conference.
Contest alleged violations.
Familiarize Employees with their OSHA Inspection Rights. Employees should understand that they have a right to:
File a safety or health complaint with OSHA.
Participate in the inspection by having a designated employee participate in the:
opening and closing conferences;
CSHO walkaround;
private interviews with OSHA; and
informal settlement conference.
Access inspection records (e.g., citations, notice of contest, and abatement records).
Protection from retaliation and discrimination for exercising these rights.
Familiarize Employees with OSHA's Inspection Rights. Employees should understand that during inspections, OSHA has the right to:
Decline to provide advance notice of inspections.
Inspect workplaces with probable cause, consent, or when hazards are in plain view.
Inspect records.
Collect evidence, for example, air or noise samples and photographs.
Conduct employee interviews.
Exercise their authority to issue subpoenas for records and interviews.
Establish an inspection team and inspection protocols.
Prepare a notification plan, identifying who must be informed (and by whom) of the start of an OSHA inspection, including senior management, field supervisors and OSHA counsel.
Designate an inspection team and assign the following responsibilities (one person can fill multiple roles):
team leader (management spokesperson and OSHA point person; and, generally, OSHA counsel, site-safety director, or other senior management representative);
opening and closing conference participants (generally, a senior management representative, the inspection team leader, walk-around representative, and document production manager);
walk-around representative (escort OSHA throughout the inspection);
document production manager (manage the document control system);
photographer (take side-by-side pictures of the CSHO's pictures);
sampler (coordinate industrial hygiene sampling and acquire parallel samples);
contractor liaison (coordinate inspection activities with contractors);
union liaison (coordinate inspection activities with the employees' union); and
interview representative (prepare employees for interviews and participate in management interviews).
Equip the inspection team with the following materials:
camera and video recorder;
template for document production log;
labels for designating documents as trade secret or business confidential;
notebooks;
contact list; and
copy of OSHA's Field Operations Manual.
Designate walk-around routes for each area of the facility. In doing so:
understand the "plain view doctrine," which permits OSHA to investigate hazards in areas beyond the scope of consent or a warrant if the CSHO observes a hazard in plain view from an area within the scope of consent or the warrant.
Source
Eric J. Conn, Epstein, Becker & Green, Washington, DC, [email protected]. The full checklist is available at: http://bit.ly/vxMnvZ.
Reducing hazards is the key to a safe workplace. It means fewer injuries, workers' compensation claims, and absenteeism and a culture of safety. But with OSHA's emphasis on health care, it is also important to ask: How would OSHA view the health and safety program? Are you ready for an OSHA inspection?You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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