compliance safety and health officer

As we reported last week, the U.S. District Court refused to dismiss a challenge to OSHA’s controversial 2013 Fairfax Memorandum, which allowed for the participation of union representatives in OSHA safety inspections at workplaces where the union did not represent the workers. We asked at the time whether the Trump Administration would continue to defend that change in policy. This week, we saw the first concrete evidence suggesting that OSHA is at least reconsidering and may at a minimum drop its defense of the practice.

On Monday February 13th, OSHA filed an Unopposed Motion For Extension of time, requesting an additional 30 days to file an answer to the complaint, which otherwise would have been due today, February 17th. As OSHA’s lawyers explained in the Motion, the agency stated that “the extension of the deadline for defendants to answer is necessary to allow incoming leadership personnel at the United States Department of Labor adequate time to consider the issues.”

While it may be risky to predict with assurance what the outcome will be of the incoming leadership’s assessment of the issues, there is a strong likelihood that the new leadership may abandon not only the defense of this legal challenge but that they will also return to the interpretation of the OSHA regulation allowing for an employee representative at such Safety Walkarounds until 2013. As OSHA’s own rules make clear, while employees have the right to an employee representative present, the “authorized representative(s) shall be an employee(s) of the employer,” unless “good cause is shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.”

With the new administration’s nomination of R. Alexander Acosta , it appears that the new incoming leadership may be taking shape at the Department of Labor. No doubt, the question of union representation at OSHA safety walkarounds will be only one of many issues that the incoming leadership personnel at the United States Department of Labor will be taking time to reconsider.

By Eric J. Conn

Below is a set of important questions that we are frequently asked by clients when OSHA unexpectedly shows up at their doorsteps.  These questions and many more are also addressed in our OSHA Inspection Checklist desk reference guide.

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Scenario 1:   An OSHA Compliance Safety and Health Officer (CSHO) arrives unannounced to begin an inspection, but the employer’s representative whom the employer desires to manage the OSHA inspection is not present at the workplace.  Can the employer request that the CSHO return later or wait to start the inspection until the employer’s chosen representative is available?

Answer:  Yes, the employer can request that the CSHO return at a later time or wait a reasonable amount of time until the employer’s chosen inspection representative is available.  The OSH Act grants to employers the right to be represented during an OSHA inspection and to physically accompany an OSHA CSHO during on-site inspection activities.  The employer has the right to designate whomever it wants to fill that role, and if that person is not available at the moment OSHA arrives, but can be available in a reasonable amount of time, the employer can request that the CSHO wait or return later.

OSHA’s Field Operations Manual explains that OSHA believes waiting approximately one hour is a reasonable amount of time to delay the start of an inspection to wait for the employer’s selected representative to become available.

“When neither the person in charge nor a management official is present, contact may be made with the employer to request the presence of the owner, operator or management official.  The inspection shall not be delayed unreasonably to await the arrival of the employer representative. This delay should normally not exceed one hour.”

Notwithstanding OSHA’s purported one-hour rule, unless the CSHO has a warrant or other exigent circumstances exist (i.e., imminent danger in plain view), the employer can refuse to consent to the inspection until its chosen representative arrives, so OSHA  could not proceed with the inspection without obtaining a warrant, which generally takes at least a couple of days.

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Scenario 2:  OSHA explains at the Opening Conference that the inspection is in response to an employee complaint about a machine guarding hazard in the maintenance shop, but he requests that the employer’s representative grant him a general tour of the entire workplace.  Should the employer’s representative provide the CSHO with a general tour of the entire workplace?

Answer:  No, in the absence of a related special emphasis program, a warrant, or a hazard in plain view, OSHA cannot expand the scope of a complaint-based inspection beyond the location and hazard identified in the complaint without the employer’s consent.  The employer should insist that the inspection be limited to only that location.

To minimize the risk of the CSHO expanding the scope of the inspection based on his observing hazards in plain view in other locations, the employer’s representative should follow a route to the complaint location that introduces the CSHO to the least sensitive areas of the facility, even if that means walking the CSHO around the outside of the building to a different entrance closer to the location of the complaint.

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Scenario 3:  The CSHO asks to conduct an interview of a non-management employee, but the employee explains to his supervisor that he does not feel comfortable speaking to OSHA and does not want to be interviewed.  How should the employer representative respond to the employee?

Answer:  The employer representative can advise the employee that it is the employee’s choice whether or not to agree to the CSHO’s request for an interview, but also that OSHA has subpoena authority, and may compel the employee to participate in an interview if he refuses the request for a voluntary interview.  Employees’ participation in OSHA inspections is protected from employer retaliation by Section 11(c) of the OSH Act, so the employer representative may not discourage the employee from participating in the interview or from sharing any particular information during the interview, and may not take any adverse employment action on account of the employee’s decision whether to participate in the OSHA interview.

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Scenario 4:  At the conclusion of a management representative interview, the CSHO asks the management witness to review the CSHO’s interview notes and sign the notes if they appear to be accurate or to write out and sign a witness statement.  Does the management representative witness have to and/or should he agree to sign the notes or write out his own witness statement?  What about being taped or video recorded during the interview?

Answer:  OSHA has no authority to require any witness to sign any document or to prepare a written witness statement, or any form of new written document during an inspection.  Likewise, during a “voluntary” interview, witnesses may refuse to allow an interview to be video or tape recorded.  Note that OSHA can issue a subpoena that compels a witness to submit to an audio or video recorded interview.  OSHA cannot, however, compel an employee to write or sign any document even with a subpoena.

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Scenario 5:  During an inspection, OSHA issues a subpoena to your workers’ compensation insurer seeking risk assessments, loss control surveys, and other safety audits conducted of your facility.  Is the insurance company required to provide such materials?

Answer:  They are now.  A few months ago, OSHA won a key battle against an insurance company and all employers in a case involving two teens, who became engulfed in corn.  As part of OSHA’s investigation, OSHA subpoenaed records from the employer’s workers’ compensation insurer, Grinnell Mutual Reinsurance Co., seeking documents and testimony regarding working conditions observed by the insurer.  Grinnell refused to produce any documents or information, and OSHA sued the insurer in federal court.  The insurer argued that enforcing the subpoena would cause a “chilling effect” by discouraging businesses from allowing insurers to conduct safety inspections if the material could later be used against them in litigation or OSHA enforcement proceedings.  The court disagreed, finding that “[w]ith OSHA’s authority to investigate, comes the authority to require production of evidence and to obtain court enforcement of subpoenas seeking such evidence.”  See the district court’s opinion in Solis v. Grinnell Mutual Reinsurance Co.

OSHA has made it a habit of requesting from employers and third parties during workplace inspections, copies of safety audit reports from third parties (e.g., insurance companies, consultants, etc.), and using the audit reports to the detriment of employers.  OSHA uses the findings from such safety audits as a roadmap to steer their inspections, and references uncorrected audit findings as evidence:

  1. to support citations;
  2. of the required showing of employer knowledge of violative conditions; and
  3. of willfulness.

Following the Grinnell case, we know that OSHA has authority to access such audit records unless the audit was conducted under the protection of the attorney-client privilege.  In order to properly invoke the attorney-client privilege today, employers should seek the legal opinion of counsel with regard to OSHA compliance issues, and have counsel either personally conduct the audit or direct a third party consultant to provide expert, technical assistance to the attorney.  The consultant should obtain information about the employers’ programs, procedures, and physical conditions at the plant directly from the employer, rather than gathering that information independently (i.e., any physical inspection or observations should be made in conjunction with a company representative, who points out and explains operations and equipment to the third party auditor).  The audit report should be delivered to counsel, who in turn must use the report to deliver legal advice based on the technical information provided by the consultant (i.e., a memorandum to the employer describing legal compliance issues and attaching the report).