WHAT EMPLOYERS NEED TO KNOW ABOUT OSHA’S NEW ELECTRONIC RECORD RULES!

By Robert G. Chadwick, Jr, Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC

On May 12, 2016, OSHA published a Final Rule amending its recordkeeping regulations to include new electronic submission mandates for certain work establishments.  This Rule was published at the  same time as new anti-retaliation regulations explained in this blog’s May 12, 2016’s post entitled What Employers Need to Know About OSHA’s New Anti-Retaliation Regulations!  The new electronic recordkeeping mandates will be phased in over two years.

Which Work Establishments Must Comply With the Final Rule? 

The new electronic recordkeeping mandates apply to two groups of establishments:

  • An establishment with 250 or more employees; or
  • An establishment with 20-249 employees which is classified in an industry listed in Appendix A to the Final Rule. Appendix A lists 66 industries.

What Does the Final Rule Mandate?

The Final Rule mandates that establishments with 250 or more employees electronically submit injury and illness data they are already required to record on their onsite OSHA Forms 300, 300A and 301. See What Employers Need to Know About OSHA Injury/Illness Records Mandate, posted on March 14, 2016. The Final Rule mandates that a covered establishment with 20-249 employees electronically submit its OSHA Form 300A.

How Will the Mandated Electronic Information be Submitted?

OSHA will provide a secure website for the electronic submission of information.

Does the Final Rule Replace Existing Injury/Illness Records Mandates?

No. If an establishment is already required to create and maintain an OSHA Form 300, 300A and 301, the establishment will still be required to maintain the Form even if the electronic submission mandates do not apply. Similarly, if an establishment is partially exempt from maintaining OSHA injury/illness records, the partial exemption remains.

What is the Timetable For Phasing In the New Mandates?

Covered establishments with 250 or more employees must electronically submit information from their 2016 OSHA Forms 300A by July 1, 2017  Such employers must electronically submit information from their 2017 OSHA Forms 300, 300A and 301 by July 1, 2018. Beginning in 2019 and every year thereafter, the mandated information must be electronically submitted by March 2.

Covered establishments with 20-249 employees must electronically submit information from their 2016 OSHA Forms 300A by July 1, 2017, and their 2017 OSHA Forms 300A by July 1, 2018.  Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

What Does the Final Rule Authorize OSHA to Do With Electronically Submitted Information?

Some of the data will be posted to the OSHA website.  OSHA maintains that “public disclosure will encourage employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public.”

What Does the Final Rule Mean for OSHA State  Plans?

OSHA State Plan states must adopt requirements that are substantially identical to the requirements in the Final Rule within 6 months.

What Does the Final Rule Mean for OSHA Inspections?

Increased access to injury and illness data will allow OSHA to better (1) target establishments for inspection, (2) evaluate whether or not an OSHA violation was willful, and (3) determine the fines which should be proposed for an OSHA violation.

 

 

WHAT EMPLOYERS NEED TO KNOW ABOUT OSHA’S NEW ANTI-RETALIATION REGULATIONS!

By Robert G. Chadwick Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC

On May 12, 2016, OSHA published a Final Rule amending its recordkeeping regulations to include new anti-retaliation protections for employees who report work-related injuries and illnesses. The new anti-retaliation protections are effective August 10, 2016.

What Does the Final Rule Prohibit of Employers?

The Final Rule makes it unlawful for an employer to “discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”

What Does the Final Rule Require of Employers?

The Final Rule requires employers to take the following actions:

  • Establish “a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness;”
  • Inform “each employee of [its] procedure for reporting work-related injuries and illnesses;” and
  • Inform “each employee that (1) Employees have the right to report work-related injuries and illnesses; and (2) Employers are prohibited from discharging or in any manner discriminating against any employee for reporting a work-related injury or illness.”

What Enforcement Options are Available for a Violation of the Final Rule?

The Final Rule seemingly allows for two enforcement options in the event of retaliation.  First, the Final Rule implies that discrimination against an employee for reporting a work-related injury or illness is itself a recordkeeping violation which can form the basis of an OSHA citation and fines.   OSHA inspections are thus an option for enforcement of the new anti-retaliation protections.

Second, the Final Rule interprets Section 11(c) of the OSH Act as already prohibiting retaliation “against an employee for reporting a work-related fatality, injury or illness.” Section 11(c) (1) provides a 30-day window for an employee to file a complaint, (2) is enforced through investigations conducted by OSHA’s Whistleblower Protection Program,  (3) authorizes the Department of Labor to  bring suit against an employer in a U.S. District Court for unlawful retaliation, and (4) authorizes a U.S. District Court “to order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.”

 

EMPLOYER DOS AND DONT’S DURING AN OSHA WALK-AROUND INSPECTION!

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC

Much of the evidence to support a citation is gathered by OSHA during a walk-around inspection of the employer’s operations. For this reason, it is imperative that the employer be diligent to protect its rights and interests during this component of an OSHA inspection.

DO Have a Management Representative Accompany OSHA During the Walk-Around Inspection. 

The OSH Act specifically allows a management representative to accompany OSHA on the walk-around inspection. 29 U.S.C. 657(c).  To protect its interests, the employer should exercise this right.

DO Require OSHA Representatives to Obey Safety and Security Rules and Procedures During the Walk-Around Inspection.

If visitors to an employer’s worksite are expected to be familiar with and follow certain safety and security rules and procedures, the OSHA representatives should likewise be expected to  be familiar with and follow the same rules and procedures. Otherwise, OSHA may discern that the employer does not take health and safety seriously, especially if the rules and procedures are also applicable to employees.

Personal Protective Equipment/Badges: Where personal protective equipment or radiation badges are required of visitors and employees, such equipment should be provided to and required of OSHA.

Orientation and Training: OSHA representatives should not be presumed to be familiar with an employer’s safety rules and procedures. The OSHA representatives should be provided the same orientation and training provided other visitors to an employer’s workplace.  Typical rule and procedures which should be reviewed with OSHA include (1) emergencies, such as fires, spills and exposures; (2) evacuation routes and procedures; and (2) quarantine procedures.

Security: If visitors are required to log in or wear visitor badges, the same requirements should be imposed upon OSHA.

Where Applicable, DO Limit the Scope of the Inspection.

Where the permissible scope of the walk-around inspection is limited, the employer should police and monitor the route to make sure the permissible scope is not exceeded by OSHA.  Allowing a broader inspection cannot be undone after the inspection.

DO Limit the Ability of OSHA to Observe Employer Operations Outside the Scope of the Inspection:  To the extent possible, the employer should limit the ability of OSHA representatives to observe any operations outside the scope of the anticipated inspection.  For example, if safe, doors to such operations should remain closed. Even  if an operation is outside the scope of the anticipated inspection, what OSHA is able to view in plain sight can nevertheless be the basis for (1) a citation for an OSH Act violation or (2) an expanded inspection.

DO Deny Any Request for a Detour From Planned Inspection Route:  The employer should deny the OSHA representatives access to areas, if any, outside the scope of the anticipated inspection.  Accommodating a request for a detour even for an innocent reasons, such as a restroom, water or cigarette break, risks (1) a citation for a violation viewed by  an OSHA representative during the detour; or (2) an expansion of the inspection based upon violations viewed during the detour.

DO Fight An Attempted Expansion of the Scope of Inspection: If OSHA wishes to expand the scope of the inspection, based upon information learned during the walk-around inspection, the employer should (1) discuss the request with OSHA in much the same manner as the opening conference; discussions regarding the scope of the inspection should not be made during the walk-around inspection; (2) inquire as to OSHA’s basis for seeking an expanded inspection; and (3) object if the basis is without merit.

DON’T Attempt to Conceal Any Operations From OSHA’s View Which are Within the Permissible Scope of the Walk-Around Inspection.

The employer should not attempt to conceal the view of OSHA representatives from areas within the permissible scope of the inspection.  Due to OSHA inspection training, such an effort will likely fail.  Worse, such  an effort will likely only draw OSHA’s attention to the work area sought to be concealed.

DO Collect Evidence

During the inspection , OSHA will be collecting evidence in the form of photographs, video and audio recordings, samples, tests and measurements. Despite any oral assurances to the contrary, OSHA is not bound to share this evidence with the employer. The management representative who accompanies OSHA on the  walk-around inspection, therefore, should be collecting evidence on behalf of the employer  for use in defending an OSHA citation.

DO Observe Everything From the Same Perspective as the  OSHA Representative: If an OSHA representative takes a photograph or video or audio recording of an employee or work location, the management representative should also take a photograph or recording from the same perspective as the OSHA representative.

DO Simultaneously Collect Same Physical Evidence as Collected by OSHA Representative: To the extent necessary equipment is available, for every sample, test or measurement taken by OSHA, the same sample, test or measurement should be taken by the management representative.

DO Talk With Employees About Hazards Discovered During Inspection: With an eye toward collecting evidence only, the employer should ask employees about hazards discovered during the walk-around inspection.

DO Take Notes.

The management representative should take meticulous notes during the walk-around inspection regarding (1) specific operations observed by OSHA; and (2) questions asked by the OSHA representative(s).  After all, OSHA is taking notes.

DO Immediately Address Detected Hazards

Certain hazards detected during a walk-around inspection can and should be immediately addressed by an employer. Amongst the actions which can be taken by an employer during an inspection include the following:

Employee Discipline:  Employees observed to be engaged in conduct in violation of the employer’s safety rules should be immediately reprimanded.  This action may risk alerting OSHA to the violation, but the employer may risk more by doing nothing in response to a violation which OSHA has already noted.

Fix Hazards: A hazard which is capable of being fixed during the inspections should be immediately abated.

Discontinue Hazardous Work:  Although discontinuing work until a serious hazard is abated may be a drastic measure, the risk of doing nothing may be a citation for a willful violation of the OSH Act.

DON’T Conduct Demonstrations.

There is no obligation on the part of the employer to perform demonstrations of work operations not otherwise being performed at the time of the walk-around inspection. To do so, risks (1) providing OSHA with additional questions to ask; (2) a citation for an unwittingly admitted or demonstrated violation; or (3) a basis for expanding the scope of the inspection.

DO Object to Disruptive Impromptu Interviews of Employees.  

Frequently, OSHA will attempt to conduct private impromptu interviews during the walk-around inspection of employees at their work stations. Such impromptu interviews are not necessarily improper, but they may be improper if they unreasonably disrupt the employer’s operation.  The employer should object to an impromptu interview if it (1) prevents the employee from performing an essential job task; or (2) takes the employee away from his or her job duties for an extended period of time.  Since OSHA has the right to interview the employee, however, the employer should couple its objection with an alternative time to interview the employee.

DON’T Respond to Dangerous Questions to Management Representative.

Often, OSHA will ask questions of the management representative during the walk-around inspection which call for damaging admissions.  The management representative should avoid any response to these questions lest they bind the employer to a potentially damaging admission: (1) How long has this hazard been here? (2) Have there been any close calls due to the hazard? (3) Who knows about his hazard? (4) You know this is an OSH Act violation, right? (4) You know an employee can be seriously injured or die because of this hazard right? (5) Isn’t there an industry standard which prohibits this?

DO Defer Questions  to Management Representative if Interview is Anticipated in Presence of Legal Counsel.

Frequently, OSHA will ask questions of the management representative during the walk-around inspection with legal counsel absent.  If an interview of the management representative is anticipated in the presence of legal counsel, such questions should be deferred until the interview itself.

WHAT DOES AN EMPLOYER NEED TO KNOW ABOUT OSHA’S WALK-AROUND INSPECTION?

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

During an OSHA inspection, the agency will conduct a physical inspection of the employer’s operations to gather relevant evidence.

When Does the Walk-Around Inspection Take Place? 

A walk-around inspection will generally take place after the opening conference and OSHA’s review of the employer’s records.

How Long is the Walk-Around Inspection?

There is no time limit on the walk-around inspection but the inspection should not be so long as to unreasonably disrupt the employer’s operation.

What is the Permissible Scope of the Walk-Around Inspection?

As previously noted in the December 6, 2015 post entitled “What Does an Employer Need to Know About an OSHA Opening Conference?”, the scope of the walk-around inspection is generally determined during the opening conference of an OSHA inspection.  Anything which is in plain sight to OSHA during the walk-around inspection, however, can be the subject of a later citation.

What Determines the Manner and Route of the Walk-Around Inspection? 

As previously noted in the December 6, 2015 post entitled “What Does an Employer Need to Know About an OSHA Opening Conference?”, the manner and route of the walk-around inspection can be discussed between the employer and OSHA during the opening conference.  Otherwise, the Compliance Safety & Health Officer (“CSHO”) will determine the manner and route subject to the following considerations: (1) the availability of the management representative or employee representative who will be accompanying the CSHO, (2) compliance with the employer’s safety and health rules and procedures, and (3) avoidance of unreasonable disruption of the employer’s operations.

Who Can Participate in the Walk-Around Inspection?

One management representative at a time and one employee representative at a time have the right to accompany OSHA during the walk-around inspection; the management representative and employee management can be substituted during the course of the inspection.  OSHA may be represented by more than one government official during the walk-around inspection, but one CSHO will generally lead the inspection.

What Does OSHA Do During the Walk-Around Inspection?

For a substantial part of the walk-around inspection, OSHA will be simply visually observing the health and safety conditions of the workplace and taking notes.  OSHA will also be collecting physical evidence.

Photographs:  Subject to any prior understanding as to the protection of the employer’s trade secrets, OSHA may photograph the employer’s workers and work operations.

Audio and Video Recordings: Subject to any prior understanding as to the protection of the employer’s trade secrets, OSHA may conduct audio and video recordings of the employer’s workers and work  operations.

Samples:  OSHA may collect air, water and chemical samples, and swipe samples from workplace surfaces.

Monitoring:  OSHA may monitor or take instrument readings as to employee exposures to toxic fumes, contaminants, chemicals, gases, dusts, radioactivity, etc.

Measurements:  OSHA may take measurements of lighting and noise levels, as well as any measurements of height or distance which may be relevant to an OSHA standard.

Questions:  OSHA may also question both managerial and non-management employees as to observable work conditions and operations.

Does OSHA Provide Feedback During the Walk-Around Inspection?

OSHA will normally, but not always, advise the employer’s management representative of the existence of workplace hazards which can be immediately or quickly abated.

 

NBC5 INTERVIEWS ROBERT CHADWICK AFTER OSHA CITES FORT WORTH ZOO

On Friday, March 18, 2016, NBC5 in Dallas/Fort Worth aired an investigative report regarding an OSHA Citation issued against the Fort Worth Zoo. The Citation arose from an alleged September 14, 2015 incident involving a zookeeper and elephant.  The investigative report included an interview with Robert G. Chadwick, Jr.

SEE VIDEO

WHAT EMPLOYERS NEED TO KNOW ABOUT OSHA INJURY/ILLNESS RECORD MANDATES

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

At the start of an OSHA inspection, the agency will likely ask to review the employer’s injury and illness records.  Barring an applicable exemption, OSHA regulations require that these records include (1) a log of work-related injuries and illnesses (OSHA Form 300), (2) an incident report for each injury and illness (OSHA Form 301), and (3) an Annual Summary of work-related injuries and illnesses (OSHA Form 300A).  29 C.F.R. 657(c)(2).

Are Any Employers Exempted From these Requirements?

OSHA regulations  provide for two categories of employers which may not be required to create or maintain injury and illness records.

Small Employers: An employer that employs ten or fewer employees during the calendar year need not keep injury and illness records unless informed in writing to do so by OSHA or the Bureau of Labor Statistics (“BLS”). 29 C.F.R. 1904.1

Low Hazard Industries: A business establishment that is classified as a low hazard industry need not keep injury and illness records unless informed to do so by OSHA, the BLS or a state agency operating under the authority of OSHA or the BLS.  The list of industries within this exemption was narrowed by OSHA effective January 1, 2015. The exemption does not apply to an employer which has a business establishment engaged in a non-exempt industry. 29 C.F.R. 1904.2

What Injuries and Illnesses Must be Recorded by a Non-Exempt Employer? 

A non-exempt employer must record all occupational injuries and illnesses which result in the following:

  1. Death;
  2. Loss of consciousness;
  3. Days away from work;
  4. Restricted work activity or job transfer;
  5. Medical treatment beyond first aid;
  6. A needle stick or cut from a sharp object that is contaminated with another person’s blood or other potentially infectious material;
  7. Hearing loss as determined by an audiogram;
  8. Medical removal under the medical surveillance requirements of an OSHA standard (i.e., lead, cadmium, methyl chloride, formaldehyde, benzene, etc.)
  9. Tuberculosis infection as evidenced by a positive skin test or diagnosis by a physician or other licensed health care professional after exposure to a known case of active tuberculosis;
  10. Musculoskeletal disorder; and
  11. Cancer, chronic irreversible disease,  fractured or cracked bone, or a punctured ear drum.

29 C.F.R. 1904.7-1904.12.

Where Must Injury and Illness Records be Maintained?

The records must be maintained by a non-exempt employer at each establishment  that is expected to be in operation for one year or longer. 29 C.F.R. 1904.30

Short Term Establishments: Only one  OSHA 300 Log need be maintained for all of an employer’s short-term establishments expected to be in operation for less than one year. 29 C.F.R. 1904.30

Single Location: An establishment is a single location where business is conducted or where services or industrial operations are performed. (For example: A factory, mill, store, hotel, restaurant, movie theater, farm, ranch, bank, sales office, warehouse, or central administrative office).  Where distinctly separate activities are performed at a single location (such as contract construction activities operated from the same physical location) each activity  shall be treated as a separate establishment. 29 C.F.R. 1904.46

Physically Dispersed Activities: For activities where employees do not work at a single location, such as construction, transportation, communications, electric, gas and sanitary services, the establishment is represented by main or branch offices, terminals, stations, etc., that either supervise such activities or are the base from which the personnel carry out these activities. 29 C.F.R. 1904.46

Traveling Employees: Records for  personnel who do not primarily report or work at a single establishment, and who are generally unsupervised in their daily work, such as traveling salesmen, technicians, engineers, etc., shall be maintained at the location from which they are paid or the base from the personnel operate to carry out their activities.

Maintenance Away From Establishment: An employer may maintain  the log of work-related injuries and illnesses at a central location or by means of data-processing equipment, or both, only under the following circumstances: (1) the employer can transmit information to the central location within seven days of receiving information that a recordable case has occurred; and (2) the employer can send the records from the central location to each establishment within the short time periods required by OSHA regulations for production of the records. 29 C.F.R. 1904.30

Change in Ownership: Where an establishment has changed ownership, the employer shall be responsible for maintaining records only for that period of time during which it owned the establishment. However, in the cases of any change in ownership, the employer shall preserve those records, if any, of the prior ownership which are required to be maintained. 29 C.F.R. 1904.34

How and When Must Entries Be Made on the OSHA Form 300?

For every recordable  work-related illness or injury at a non-exempt employer, an entry must be made on the OSHA Form 300 in the detail described in the instruction accompanying the Form.  An employer may use a substitute form as long as it provides all of the information required by the OSHA Form 300.  An employer must record the injury or illness as early as practicable, but no later than seven days after learning  of the injury or illness.

How and When Must the OSHA Form 301 be Completed?

For every recordable work-related illness or injury at a non-exempt employer, the OSHA Form 301 must be completed in the detail described in the instruction accompanying the Form. An employer may use a substitute form as long as it provides all of the information required by the OSHA Form 301.  An employer must record each injury or illness as early as practicable, but no later than seven days after learning  of the injury or illness.

Duty to Investigate:  Although no duty to investigate a work-related injury or illness is set forth in OSHA regulations, such an investigation is necessary to complete OSHA Form 301. An employer must answer specific questions which include the following:

  1.  What was the employee doing just before the incident occurred?
  2. What happened?
  3. What was the injury or illness?
  4. What object or substance directly harmed the employee?

How and When Must the OSHA Form 300A be Completed?

For each calendar year, a non-exempt employer  must complete, certify and post at each establishment the OSHA Form 300A. The OSHA Form 300A must be completed in the detail described in the instruction accompanying the Form.  An employer may use a substitute form as long as it provides all of the information required by the OSHA Form 300A.

Time for Posting: For a completed calendar year, OSHA Form 300A must be posted from February 1 through April 30 of the following calendar year. The OSHA Form 300A must be posted in the same location as other notices required by the OSH Act to be posted at each establishment of the employer. For employees who do not primarily report or work at a single establishment, or who do not report to any fixed establishment on a regular basis, employers must satisfy the posting requirement by presenting or mailing a copy of the OSHA  Form 300A during the month of February of the following year to each such employee who receives pay during the month.

Certification: The certification of OSHA Form 300A must certify that the annual summary of injuries and illnesses set forth therein is true and correct.

How Long Must Injury and Illness Records Be Maintained?

Each completed OSHA Form 300, 301 and 300A must be retained for a minimum of five years. 29 C.F.R. 1904.33

Who Can Review an Employer’s Injury and Illness Records?

A non-exempt employer must provide access to its OSHA Forms 300, 301 and 300A to OSHA upon request within four hours. 29 C.F.R. 1904.40.  The employer must also provide access to such forms to any employee, former employee or employee representative upon request by the end of the following business day. 29 C.F.R. 1904.35 

 

OSHA MATH: CALCULATING THE FULL IMPACT OF THE 2016 PENALTY INCREASE

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

Under the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015, OSHA penalties will undergo annual inflation adjustments beginning on January 15, 2017. A one-time “catch up adjustment”, however, must be announced by the agency by July 1, 2016. This “catch up adjustment” will take effect no later than August 1, 2016.  The purpose of this one-time “catch up adjustment” is to make inflation adjustments since the last increase in OSHA fines in 1990.

Many experts are predicting that the “catch up adjustment” could mean an 80% increase in OSHA penalties effective August 1. The following shows how such an increase would affect the current maximum penalties:

“Other then Serious” and “Serious” Violations:

  • $7,000 currently
  • $12,600 after August 1, 2016

“Willful” and “Repeat” Violations:

  • $70,000 currently
  • $126,000 after August 1, 2016

“Failure to Abate” Violations:

  • $7,000 per day currently
  • $12,600 per day after August 1, 2016

To fully appreciate the full importance of these increases, however, employers must also understand the means by which penalties can be assessed by OSHA.  A single OSHA inspection can result in multiple penalties based upon the number of violations and/or hazards discovered.  On October 29, 2009, for instance, BP Products of North America was assessed a record $81,340,000 in total penalties based upon only two inspections.

OSHA, moreover, generally combines separate violations of a single OSHA standard into one proposed penalty. Similarly, when a single hazard violates more than one OSHA standard, the violations may be grouped into one proposed penalty. There are instances, however, when violations will not be combined or grouped into one proposed penalty:

Multiple Establishments or Worksites:  Violations of an OSHA standard at more than one establishment or worksite of the same employer generally draw a separate penalty for each establishment or worksite.

Multiple Employee Exposures: For egregious violations, a penalty can be assessed for each employee exposed to a single hazard. CPL 02-00-080

Multiple Violations of OSHA Standard: For egregious violations, a penalty can be assessed for each violation of the same OSHA standard. CPL 02-00-080

For most OSHA inspections, therefore, the full impact of the penalty increases will be multiplied by the number of discovered violations and/or hazards. For egregious violators, the full impact of the penalty increases may be multiplied even further.  This much is certain; the number of OSHA inspections resulting in combined penalties exceeding six figures and seven figures will increase dramatically beginning this year.

ENTERPRISE-WIDE ABATEMENT RULING RAISES STAKES OF OSHA INSPECTIONS!

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

A citation stemming from an OSHA inspection typically specifies (1) the hazards which must be abated by the employer, and (2) the deadline for abating the hazards.  For employers with multiple locations,  these abatement requirements have historically been limited to hazards at the location inspected by OSHA.  In recent years, however, OSHA has periodically sought to impose enterprise-wide abatement requirements even as to alleged hazards at locations not inspected by the agency.

Proposing broader abatement requirements for employers with multiple locations is not merely a remedial strategy of OSHA.  An employer subject to enterprise-wide abatement requirements is also vulnerable to future enterprise-wide inspections by the agency to  verify that the requirements are being followed.

A September 30, 2013 ruling by Administrative Law Judge William Coleman in Secretary of Labor v.  Delta Elevator Service Corp.  placed the legality of OSHA’s strategy in doubt. In rejecting OSHA’s request for enterprise-wide abatement,  Judge Coleman ruled that “while enterprise-wide abatement has occurred in [Occupational Safety & Health Review] Commission cases where the parties have agreed to such abatement in a voluntary settlement agreement … there is no Commission or other precedent holding that such abatement may be directed pursuant to the “other appropriate relief” clause in Section 10(c) of the [OSH] Act.”  He also noted: “… the requested relief in this case would require an order that (1) is not based on any work performed at a worksite where an inspection took place, and (2) is not the subject of any allegation contained in the citation …”

A December 23, 2015 OSHA news release, however, boasts of a new ruling which the agency now contends provides precedent for enterprise-wide abatement requirements.  In Secretary of Labor v. Central Transport, LLC,  Administrative Law Judge Carol A. Baumerich ruled that, under the “other appropriate relief” clause in Section 10(c) of the OSH Act, the “Commission has the authority … to  order  enterprise-wide relief in cases where appropriate.”

To be sure, OSHA’s news release may be overstating the importance of an un-reviewed decision by one Administrative Law Judge.   After all, Judge Baumerich specifically noted that Judge Coleman’s earlier 2013 ruling was “not controlling” as to her ruling.  Still, the underlying message of the news release is plain – OSHA will continue to seek enterprise-wide abatements from employers with multiple locations.  Indeed, OSHA may be emboldened to make such requests more commonplace.  Employers with multiple locations must thus consider that the financial stakes of an inspection may have just been raised by OSHA.

DOS AND DONT’S FOR EMPLOYERS DURING AN OSHA OPENING CONFERENCE!

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

It is to an employer’s strategic benefit to be proactive in protecting its interests during the opening conference of an OSHA inspection.

DO Be Selective as to the Employer’s Representative at the Opening Conference

The employer should be represented in the opening conference by a management representative who is not only familiar with the inspection process, but also the measures which must be taken to protect the employer during the opening conference.

DO Address Purpose of Inspection

An employer should not allow an OSHA Compliance Safety & Health Officer (CSHO) to bypass or rush any discussion about the legal or factual bases for the inspection, even when the CSHO is armed with a search warrant.

  • DO Ask About Applicable  Exemptions: If the CSHO does not inquire about applicable exemptions to OSHA’s inspection or record-keeping requirements, the employer should do so if there is even an arguable basis for claiming an exemption.
  • DO Ask About Purpose of Investigative Inspection: If the CSHO does not explain the purpose of an investigative inspection with sufficient clarity or detail, the employer should press the CSHO for further information as to the issues to be investigated.
  • DO Take Time to Review a Formal Employee Complaint: If the purpose of the inspection is to investigate one or more formal employee complaints, the employer should review the complaints thoroughly before proceeding with the inspection.  A defective formal employee complaint may be grounds for challenging the inspection.
  • DON’T Challenge Coverage:  Although questions about an employer’s business are routinely part of the opening conference, an employer should not expect coverage to be a basis for challenging the legitimacy of the inspection.  

DO Define Scope of Inspection

An employer should endeavor to reach an understanding with the CSHO as to the exact scope of the OSHA inspection.

  • DO Read Search Warrant: Even where the scope of an inspection is defined by a search warrant, the employer should read the content of the warrant and strive to reach a consensus with the CSHO regarding any ambiguities in such content.
  • DO Define Extent of  Programmed Inspection: Even for a programmed inspection, for which a wall-to wall inspection of the employer’s entire worksite is generally authorized, the employer should strive for an understanding of the areas to be inspected.
  • DO Define Areas Encompassed by Investigative Inspection:  The CSHO may seek to conduct a wall-to-wall inspection even where such breadth is not necessary to an investigation.  For such an inspection, it may be incumbent upon the employer to propose, and if appropriate, insist upon a more limited inspection of the areas encompassed by the investigation.

DO Press for a Plan for Walk-Around Inspection

An inspection plan can help avoid an overly broad inspection which unreasonably disrupts the employer’s operations.

  • DO Address Route: At the opening conference, the employer and the CSHO should determine a logical route for the walk-around inspection. Amongst the considerations in determining the route should be (1) minimization of disruption of the employer’s operations, (2) the defined scope of the inspection, (3) limitation of plain view of operations outside the defined scope of the inspection, and (4) avoidance of repeat views of work areas.
  • DO Address Methods of Collecting Evidence: Determining methods anticipated by the CSHO can assist the employer in making preparations for collecting its own evidence during the walk-around inspection.
  • DO Address Timing and Length: If the employer representative or employee representative is needed elsewhere during the walk-around inspection, this issue and possible solutions can be addressed during the opening conference.

DO Press for an Interview Schedule

An interview schedule can help minimize the disruption of the employer’s operations.  Whether the timing, length, location or manner of employee interviews will unreasonably disrupt an employer’s operations may be affected by such issues as (1) the demands of the operations for which the employee is responsible, and (2) the ability of the employee to be away from his/her work station for an interview.

DO Memorialize in Writing List of Requested Records and Programs

A search warrant or subpoena may provide a specific list of documents to be produced in conjunction with the inspection. In the absence of a search warrant or subpoena, the employer should, to avoid misunderstandings or conflicting memories, (1) request that the CSHO provide a written list describing the specific documents to be reviewed, or (2) provide a written list to the CSHO, based upon documents verbally requested  by the CSHO, with a request for confirmation that the list is accurate and complete.

DO Address Trade Secrets       

As previously noted in the August 23, 2015 post entitled “How Trade Secrets Can be Protected in an OSHA Inspection“,  the CSHO should not be trusted to question the employer regarding trade secrets at the opening conference.  The employer must be prepared to identify with particularity (1) the trade secrets which it wishes to protect, and (2) the procedures which it requires to protect such trade secrets.

DO Conduct a Management Walk-Around Inspection During the Opening Conference 

While the opening conference is ongoing, other management employees should be conducting a quick walk-around inspection of the work site to (1) identify and correct any workplace hazards, (2) clean up any spills or debris in the employee work areas, (3) ensure that all employees are wearing personal protective equipment, and (4) ensure that no employees are in violation of safety and health policies.  To be sure, the CSHO may learn of this quick walk-around inspection during employee interviews. Avoiding first-hand viewing of hazards may be preferable to such second-hand reporting.

WHAT DOES AN EMPLOYER NEED TO KNOW ABOUT AN OSHA OPENING CONFERENCE?

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

The opening conference of an OSHA inspection typically takes place in an office or conference room and can address several matters, the most important of which are (1) the nature of the employer’s business, (2) the nature of the employer’s workforce, (3) the purpose of the inspection, (4) any legal bars to the inspection, (5) the scope of the inspection, (6) the timing, length and manner of the inspection, (7) the documents to be reviewed and their location, (8) the employer’s trade secrets, if any, and (9) the benefits of prompt abatement of hazards discovered during the inspection.

What is the Nature of the Employer’s Business?

There are at least two reasons for OSHA to inquire about the nature of an employer’s business:  (1) OSHA may ask questions to determine whether the employer’s business is covered by the OSH Act; and (2) the nature of the employer’s business may determine the OSHA standards applicable to the employer.

What is the Nature of the Employer’s Workforce?

Since only employees are protected by the OSH Act, OSHA may inquire whether there are any independent contractors working on-site.

What is the Purpose of the Inspection?

OSHA should inform the employer as to the purpose of the requested inspection.  The purpose may be a programmed  inspection scheduled by the agency based upon certain selection criteria.  The purpose may also be investigative in nature as to (1) an employee fatality, inpatient hospitalization, amputation, or eye loss, (2) a formal employee complaint, (3) an informal complaint, (4) a referral, (5) hazards directly observed by OSHA at or near the employer’s workplace, or (6) hazards identified during a previous inspection.  If the purpose of the inspection is to investigate a formal employee complaint, the employer is entitled to know the content of the complaint, but not the identity of the complainant.

Are There any Legal Bars to an  Inspection?

One question which can be addressed at the opening conference is whether there are any grounds for challenging the inspection.  These grounds include (1) an applicable exemption to the inspection, (2) a defective formal complaint, or (3) a defective search warrant.  The opening conference can also determine whether a different employer should properly be the target of the inspection.

What is the Permissible Scope of Inspection?

The inspection of an employer’s entire worksite is generally authorized as to a programmed inspection and may be authorized by a search warrant.   For other inspections, the opening conference provides an opportunity to review a floor plan or map of the worksite to determine which areas will be included in the inspection.

What Will be the Timing, Length and Manner of Inspection?    

The opening conference also provides OSHA and the employer the opportunity to discuss the logistics of the inspection and how to proceed with minimal disruption to the employer’s operation.

What Documents Are to be Reviewed and Where are they Located?

At the opening conference, OSHA and the employer will generally discuss the documents to be reviewed as part of the inspection and their current location.  Where applicable, OSHA and the employer should try to determine whether any exemptions apply to the retention of injury and illness records.  See If the documents are located at a different location, arrangements will need to be made at the opening conference for their review.

Are There any Trade Secrets to Protect?

As previously noted in the August 23, 2015 post entitled “How Trade Secrets Can be Protected in an OSHA Inspection“,  the OSH Act provides for the protection of trade secrets which are within the scope of an OSHA inspection.  The opening conference is the opportunity for OSHA and the employer to reach an understanding as to how the employer’s trade secrets will be protected.  Still, it is incumbent upon the employer to identify the trade secrets and the areas at the worksite which contain or which might reveal these trade secrets.

What Happens if Easily Fixable Hazards are Discovered During the Inspection?   

At the conclusion of the opening conference, the employer should have an understanding from OSHA as to the benefits under the agency’s Administrative Penalty Policy of (1) correcting hazards identified during the inspection, and (2) correcting hazards within 24 hours of the inspection.