OSHA recently identified the 10 most frequently cited standards from FY 2012 (October 1, 2011 through September 30, 2012). There were no surprises on the list, and it was consistent with years past with only a slight shuffling in the order.

OSHA posts on its website the list of top 10 violations (it has not updated the site with the FY 2012 list yet) in order to “alert employers about these commonly cited standards so they can take steps to find and fix recognized hazards addressed in these and other standards before OSHA shows up. Far too many preventable injuries and illnesses occur in the workplace.”

Here is the list for FY 2012:

  1. 1926.501 –    Fall Protection (cited 7,250 times during FY 2012)
  2. 1910.1200 – Hazard Communication (cited 4,696 times during FY 2012)
  3. 1926.451 –    Scaffolding (cited 3,814 times during FY 2012)
  4. 1910.134 –    Respiratory Protection (cited 2,371 times during FY 2012)
  5. 1926.1053 –  Ladders (cited 2,310 times during FY 2012)
  6. 1910.212 –    Machine Guarding (cited 2,097 times during FY 2012)
  7. 1910.178 –    Powered Industrial Trucks (cited 1,993 times during FY 2012)
  8. 1910.305 –   Electrical, Wiring Methods (cited 1,744 times during FY 2012)
  9. 1910.147 –    Lockout/Tagout (cited 1,572 times during FY 2012)
  10. 1910.303 –   Electrical, General Requirements (cited 1,332 times during FY 2012)

This year, OSHA also reported the Top 10 standards in terms of the highest assessed total penalties for FY.  It is worth noting that excavation hazards are not among the 10 most frequently cited standards, but citations related to those hazards are the 7th most highly penalized.  That is likely a result of the fact that many excavation-related citations have been characterized lately as Willful or Repeat with much higher penalties than Serious violations.  Here is the list:

  1. 1926.501 — Fall protection, construction
  2. 1926.451 — Scaffolding, general requirements, construction
  3. 1910.147 — Control of hazardous energy (lockout/tagout), general industry
  4. 1910.212 — Machines, general requirements, general industry
  5. 1926.1053 — Ladders, construction
  6.  1910.178 — Powered industrial trucks, general industry
  7.  1926.652 — Excavations, requirements for protective systems
  8. 1910.1200 — Hazard communication standard, general industry
  9. 1910.305 — Electrical, wiring methods, components and equipment, general industry
  10. 1910.303 — Electrical systems design, general requirements, general industry

For purposes of comparison and evaluating trends, here is the Top 10 list of most frequently cited standards from FY 2011, which includes all of the same standards, only with slight differences in the order of frequency cited:

  1. 1926.451-  Scaffolding
  2. 1926.501-  Fall Protection
  3. 1910.1200-Hazard Communication
  4. 1910.134-   Respiratory Protection
  5. 1910.147-   Lockout/Tagout
  6. 1910.305-  Electrical-wiring methods
  7. 1910.178-   Powered Industrial Trucks
  8. 1926.1053-Ladders
  9. 1910.303- Electrical-general requirement
  10. 1910.212-   Machine Guarding

By Eric J. Conn, Head of the OSHA Practice Group

Back in September, we posted an article critiquing OSHA’s Severe Violator Enforcement Program (“SVEP”) in general, and the newly announced “exit criteria” in particular.  Since that time, in the beginning of October, OSHA updated its embarrassing SVEP Log that it maintains for public consumption on the OSHA website.  With the new data included on the SVEP Log, we thought this would be a good time to provide an update about the SVEP, including:

  • The types of employers and industries that OSHA is most frequently qualifying for the program;
  • The OSHA Regions that are most active in the SVEP;
  • The pace at which new employers are added to the program; and
  • Other useful information.

As a reminder, on June 18, 2010 OSHA implemented the SVEP to focus OSHA’s enforcement resources on those employers whom OSHA believes demonstrate indifference to their OSH Act obligations by committing certain types of violations, including:

  • Any violation categorized by OSHA as “Egregious”;
  • 1+ Willful, Repeat or Failure-to-Abate violations associated with a fatality or the overnight hospitalization of three or more employees;
  • 2+ Willful, Repeat or Failure-to-Abate violations in connection with a high emphasis hazard (generally speaking, the subjects of OSHA’s special emphasis programs, such as falls, amputations, grain handling, etc.); or
  • 3+ Willful, Repeat or Failure-to-Abate violations related to OSHA’s Process Safety Management Standard.

Also as a reminder, OSHA qualifies employers for the SVEP not upon a Final Order of the OSH Review Commission confirming that the employer actually violated the law as alleged by OSHA, but instead, employers find themselves on the public Severe Violator list just upon OSHA’s initial, unproven allegations.

Below are some interesting bits of data about the SVEP in general, and the types of employers that are landing on the SVEP List, how frequently, and in what parts of the country:

By Eric J. Conn, Head of the OSHA Practice Group

The U.S. Court of Appeals for the District of Columbia Circuit recently provided some much-needed clarification to the meaning of “Willful” with respect to violations of the Occupational Safety and Health Act, in the case of Dayton Tire v. Secretary of Labor, No. 10-1362 (2012).  Violations of the OSH Act fall into one of four categories, with “Willful” and “Repeat” violations being the most severe, and carrying penalties up to 10x that of “Serious” or “Other than Serious violations.  29 U.S.C. § 666(a)-(c).  All OSHA violations, even Other than Serious violations, require a showing by OSHA that the employer had “knowledge” (actual or constructive) of the violative condition.  So if knowledge is required for all violations, what sets a “Willful” violation apart from the others?  The DC Circuit attempted to explain that difference in the Dayton Tire case, when it struck down the Willful characterization of several Lockout/Tagout (“LO/TO”) citations.

In doing so, the DC Circuit stated that the definition of Willful is a narrow one, requiring that an act be committed “voluntarily with either an intentional disregard of, or plain indifference to, the Act’s requirements.”  To make out a Willful violation, the Secretary of Labor must be able to demonstrate that “the employer was actually aware, at the time of the violative act, that the act was unlawful, or that [the employer] possessed a state of mind such that if it were informed of the [OSHA] standard, it would not care.”  The Court further clarified that “it takes a lot to be plainly indifferent,” and based on the Secretary’s failure to “cite a single piece of evidence indicating that [the manager] was actually aware . . . that the act was unlawful,” the Court vacated the penalties assessed again Dayton Tire in this case.

The LO/TO standard at issue in the case applies to “the servicing and maintenance of machines and equipment in which the unexpected . . . start-up of the machines or equipment, or release of stored energy could cause injury to employees.”  29 C.F.R. § 1910.147(a)(1)(i).  The LO/TO standard requires covered employers to “establish a program and utilize procedures for affixing appropriate lockout . . . or tagout devices to energy isolating devices.”  29 C.F.R. 1910.147(a)(3)(i).  Finally, the LO/TO standard requires that employers provide training “to ensure that the purpose and function of the energy control program are understood by employees and that the knowledge and skills required for the safe application, usage, and removal of the energy controls are acquired by employees.”  § 1910.147(c)(7)(i).  These training requirements vary depending on whether an employee is “authorized” (e.g., a maintenance employee who applies locks and tags to equipment) or “affected” (e.g., a machinen operator who works in the vicinity of a machine being locked out).  29 C.F.R. 1910.147(c)(7)(i)(A) & (B).

In 1989, when OSHA promulgated the LO/TO standard, Dayton Tire operated a tire-manufacturing facility in Oklahoma, but all service and maintenance at the facility was performed by an outside contractor.  Dayton Tire’s safety managers determined correctly that their employees were only “affected” employees, whose required level training in LO/TO is much less stringent than “authorized” employees.  Following a 1993 fatal injury to a Dayton Tire employee caused by the unexpected start-up of a machine, OSHA inspected the facility and issued to Dayton Tire 107 Willful violations, 98 of which were for alleged Willful failures to train 98 different Dayton Tire employees to the “authorized employee” level.

Dayton Tire contested the citations, and OSH Review Commission Administrative Law Judge (“ALJ”) affirmed the violations, and assessed a penalty of $518,000.  See Secretary of Labor v. Dayton Tire, No. 94-1374 (1997).  Although the ALJ found that Dayton Tire’s actions were “consistent with a good faith belief and effort to comply with the LO/TO standard throughout the Oklahoma City plant,” the Judge nevertheless characterized 37 violations as Willful because, he reasoned, Dayton Tire had knowledge that its parent corporation had previously been cited for similar violations of the LO/TO standard.  Id.  The case was appealed to the OSH Review Commission, which issued its opinion in 2010 (more than 12 years after the ALJ’s decision).  The Commission’s opinion upheld all of the violations as Willful, and increased the penalty to approximately $2 million.  Secretary of Labor v. Dayton Tire, No. 94-1374 (2010).  The Commission’s determination of Willfulness was not based on the parent corporation’s prior violations, but rather, was based on the original finding by Dayton Tire’s first safety manager that only the outside maintenance contractor’s employees were LO/TO authorized employees, which the Review Commission found to be “plainly erroneous.”  The Review Commission also criticized that when the subsequent safety manager relied on her predecessor’s assessment, she “either knew that her predecessor’s LO/TO analysis was incorrect or chose to avoid such knowledge by refusing to conduct her own assessment.”

The DC Circuit overturned the Commission’s decision based on plain indifference, noting that past Commission findings of plain indifference have only been upheld where a company made no effort to address repeated warnings from employees or OSHA that they were in violation of safety standards.  The incidents referenced by the Commission in the Dayton Tire case, however, failed to reach that level.  According to the DC Circuit, the original safety manager’s actions showed that she at least made an attempt to respond to concerns that were raised—“while [she] could have done more, she did not do nothing.”  The manager’s “responses evince negligence at most,” which is insufficient for a finding of Willful.  This decision provides a clearer standard for employers and OSHA, and should provide protection from Willful violations for employers who act in good faith, even if they are wrong.

Special thanks to Danielle L. Steele, a Summer Associate (not admitted to the practice of law) in Epstein Becker Green’s Washington, DC office, for her contribution to the preparation of this post.

By Eric Conn, Head of the OSHA Practice Group

We recently had an article published by the Washington Legal Foundation entitled “OSHA Continues Trend of Informally Imposing New Rules.”  The article expanded on an earlier post here on the OSHA Law Update Blog regarding OSHA’s attempts to circumvent Formal Notice and Comment Rulemaking by changing regulatory requirements through interpretation letters, directives, and enforcement memoranda.  Here is a link to the original post.

Below is an excerpt from the expanded article, published this week in Washington Legal Foundation’s Legal Opinion Newsletter:

On June 2, 2012, an Occupational Safety & Health Review Commission (OSHRC) Administrative Law Judge (ALJ) ruled that the Occupational Safety and Health Administration (OSHA) could not lawfully expand an existing safety standard through an enforcement memorandum. The decision, which OSHA declined to appeal, was an important one for regulated entities and for those who advocate for clarity and transparency in the regulatory process. Regretfully, the victory may be short lived, since OSHA has already issued other citations based upon the same expanded interpretation from the same enforcement memo.

Click here to download the full article as a PDF. Used by permission from the Washington Legal Foundation, Vol. 21 No. 20.

By Eric J. Conn

In what seems to be a trend, OSHA has again delayed its rulemaking process for an Injury and Illness Prevention Program (commonly known as I2P2) standard. The announcement came during a National Advisory Committee on Occupational Safety and Health meeting in late June.  According to OSHA officials, we should not expect the next rulemaking phase, a small business review process, to begin until at least Labor Day.  I2P2 programs, which aim to reduce workplace injuries by requiring employers to proactively find and fix workplace hazards, have been on OSHA’s regulatory radar for quite some time.

Agency hold-ups, however, and more recently, election-year politics, have left the rulemaking process at a standstill.  The timeline below illustrates OSHA’s “progress” to date on the I2P2 Rule:

To justify the Agency’s most recent delay, an OSHA official explained that OSHA is still ironing out the proposal it plans to present to the SBREFA panel. OSHA stressed that it wants to deliver a “complete” proposal, including a range of alternatives that the Agency is considering.  Excuses aside, OSHA’s inability to get past this early step in the rulemaking process signals a long and difficult road ahead for the I2P2 rule.  After OSHA convenes the SBREFA panel, it still has to publish its proposed rule and solicit stakeholder comments before releasing a final rule.  Based on the time-consuming nature of this process and the delays we have already seen from OSHA, we probably will not see substantial movement on the rule until 2013.  Still, it is never too early for employers to start preparing.

While OSHA’s rule will likely allow for some degree of program flexibility, we expect that it will require employers’ I2P2 programs to include the following core components:

  • Management leadership;
  • Employee participation;
  • Hazard identification, prevention, and control;
  • Education and training; and
  • Program evaluation.

Further, an I2P2 rule will likely draw from current voluntary consensus standards for I2P2 programs, such as the ANSI/AIHA Z10 and the OSHAS 18001 standards, as well as state I2P2 laws and regulations (34 states currently incentivize or require employers to implement I2P2 programs through legislation or regulation).

No matter the Rule’s ultimate requirements, employer compliance will be crucial.  The I2P2 rule has the potential to become one of the most frequently used weapons in OSHA’s enforcement arsenal.  For example, if a workplace injury occurs, OSHA may not only cite the employer under applicable hazard-specific standard, it will likely also tack on an I2P2 violation. Alternatively, if a workplace injury occurs, but there is no hazard-specific standard for OSHA to cite, OSHA will rely on the I2P2 rule to impose fines against employers.  In either case, OSHA’s reasoning would be that the injury never would have happened if the employer had an adequate I2P2 program in place.

This type of enforcement pattern is already playing out at the state plan level.  Consider California for example, where employers have been subject to a state I2P2 standard since 1991.  Twenty-one years later, California’s I2P2 standard is the most frequently cited standard.  The bottom line is that although OSHA may not issue a final I2P2 rule until sometime in 2013, or later, employers should consider the potential far-reaching implications of the rule for safety, their budgets, and their reputations.


Bonnie I. Scott, a Summer Associate (not admitted to the practice of law) in Epstein Becker Green’s Washington, DC, office, contributed significantly to the preparation of this post.

This week, Washington Legal Foundation published an article  regarding OSHA’s New Enterprise-Wide Approach to Enforcement, authored by EBG attorneys Eric J. Conn and Alexis M. Downs.  The article expands on a February 2012 post entitled “Enterprise Enforcement: OSHA’s Attack on Employers with Multiple Locations,” here on the OSHA Law Update Blog.

The gist of the article and the prior blog post is that companies that operate multiple facilities in different locations, such as national retail and grocery chains, grain cooperatives, large national nursing and medical care organizations, manufacturers, hotel groups, and many others, need to be aware of four new Occupational Safety and Health Administration (OSHA) enforcement trends that have important corporate-wide consequences:

  1. A rise in follow-up inspections and Repeat violations at sister facilities within a corporate family;
  2. OSHA’s pursuit of company-wide abatement provisions in settlement agreements;
  3. OSHA’s requests for enterprise-wide relief from the Occupational Safety and Health Review Commission; and
  4. Implementation of OSHA’s Severe Violator Enforcement Program (SVEP), which incorporates elements of each of the above.

The full article explains these four initiatives and how OSHA is implementing them.

Last week, EHS Today Magazine ran our article in which we delve into more detail about OSHA’s amended Hazard Communication Rule (“HazCom”), and the integration of the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”).  Check out the full article here, in which we detailed 10 important things employers need to know about the final HazCom Rule.  Here’s the short list:

  1. New Hazard Classification Criteria
  2. New Method for Evaluating Mixtures
  3. Amended Label Requirements
  4. Proscrictive Format for Safety Data Sheet
  5. Inclusion of Non-Mandatory Threshold Limit Values in SDSs
  6. Information and Training Requirements
  7. Other Effective Dates
  8. Inclusion of a Category of Hazards Not Otherwise Classified
  9. No Preemption of State Tort Laws
  10. Covers Combustible Dust Without Clarity

The article expands on our post here last month with a brief summary of the new HazCom rule.

By Eric J. Conn and Casey M. Cosentino

Following a March 20, 2012 Press Release, on March 26, 2012, OSHA issued its much anticipated final Hazard Communication Rule (“HazCom”), which integrates the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”) into OSHA’s old Hazard Communication Standard (“HazCom” or “HCS”).  The new HazCom Standard requires employers to classify chemicals according to their health and physical hazards, and to adopt new, consistent formats for labels and Safety Data Sheets (“SDS’s”) for all chemicals manufactured or imported in the United States.  According to Assistant Secretary Michaels, “OSHA’s 1983 Hazard Communication Standard gave workers the right to know . . . this update will give them the right to understand.”

In preparing to implement the new HazCom Standard, below is a list of 10 important things employers need to know about the final rule.  Look out for our article coming soon in EHS Today Magazine for a more detailed review of these 10 issues.


  1.  Hazard Classification:  The new HCS has specific criteria for classifying health and physical hazards into a hazard class and hazard category.  The hazard class indicates the nature of hazard (e.g. flammability) and the hazard category is the degree of severity within each hazard class (e.g. four levels of flammability).
  2. Mixtures:  Evaluating health hazards of mixtures is based on data for the mixture as a whole.  If data on the mixture as a whole is not available, importers and manufacturers may extrapolate from data on ingredients and similar mixtures.
  3. New Label Requirements:  For each hazard class and category, chemical manufacturers and importers are required to provide common signal words, pictograms with red borders, hazard statements and precautionary statements.  Product identifiers and supplier information are also required.
  4. Safety Data Sheets: SDS’s replace MSDS’s, and the new Standard requires a standardized 16-section format for all SDSs to provide a consistent sequence for organizing the information.
  5. Non-Mandatory Threshold Limit Values in SDSs:  Employers are required to include in SDS’s the non-mandatory threshold limit values (TLV’s) developed by the American Conference of Governmental Industrial Hygienists, in addition to OSHA’s mandatory permissible exposure limits (“PEL’s”).
  6.  Information and Training:  Employers are required to train employees on the new label elements (e.g. signal words, pictograms, and hazard statements) and SDS format by December 1, 2013.
  7. Other Effective Dates:  The table below shows the rolling effective dates of the new Standard:
  8. Hazards Not Otherwise Classified: Hazards covered under the old HazCom Standard but not addressed by GHS are covered under a separate category called “Hazards Not Otherwise Classified” (“HNOC”).  HNOC’s need only be disclosed on the SDS and not on labels.  Notably, pyrophoric gases, simple asphyxiants, and combustible dust are not classified under the HNOC category.  Rather, these chemicals are addressed individually in the new Standard. 
  9. No Preemption of State Tort Laws:  The new HazCom Standard does not preempt state tort laws, which means that it will not limit personal injury lawsuits regarding chemical exposures, inadequate warnings on labels, and/or failure to warn.
  10. Combustible Dust:  The final rule added combustible dust to the definition of “hazardous chemicals,” and thus, combustible dust hazards must be addressed on labels and SDSs.  Although the new HazCom Standard expressly states that combustible dust is covered, OSHA failed to define combustible dust, which will likely create substantial confusion and uncertainty for employers.

By Casey M. Cosentino and Eric J. Conn

On March 20, 2012, the U.S. Court of Appeals for the Seventh Circuit vacated an ALJ’s decision penalizing Caterpillar Logistics Services, Inc. for allegedly failing to record an employee’s “work-related” musculoskeletal disorder (“MSD”) on the Company’s OSHA 300 log.  Caterpillar Logistics Services, Inc. v. Sec’y of Labor, No. 11-2958 (7th Cir., Mar. 20, 2012).  This case is significant because it stamps back (at least temporarily) an effort by OSHA to expand the meaning of “work-related” in the context of ergonomic injuries and OSHA Injury & Illness Recordkeeping.

By way of background, OSHA requires employers to record certain work-related deaths, injuries, and illnesses.  See 29 C.F.R. § 1904.4(a)According to OSHA’s regulation, an injury is work-related if “the work environment either caused or contributed to the resulting condition.”  29 C.F.R. § 1904.5(a).  Employers are required to record such injuries on OSHA’s 300 Log, 300A Summary Form, and 301 Report.  MSDs are injuries to muscles, nerves, tendons, ligaments, joints, cartilage or spinal discs that were not caused by a slip, trip, fall, motor vehicle accident or similar trauma.

In the Caterpillar Logistics case, an employee experienced pain in her right arm after working five weeks in the Company’s packing department.  She visited the Company’s medical clinic, where the staff physician diagnosed her condition as medial and lateral epicondylitis (aka golfer’s elbow and tennis elbow).  The physician concluded, however, that the repetitive motions in the employee’s work alone did not contribute to her condition.  A five-member internal review panel agreed with the physician’s diagnosis and conclusion.  The Company, therefore, did not record the injury on the 300 Log as work-related.

After an inspection, however, OSHA determined that the employee’s injury was “work-related” and assessed the Company a citation for failing to record the injury.  An administrative law judge (“ALJ”) sustained OSHA’s determination.  In doing so, the ALJ concluded that “an employee’s work activities do not have to be the cause, but rather a cause of an injury or illness” in order to be recordable (emphasis added).   The ALJ also found the preponderance of the evidence showed the employee’s work activities were at least a contributing cause of the employee’s epicondylitis.  The Occupational Safety and Health Review Commission declined to review the ALJ’s decision, rendering the ALJ’s determination final.

On appeal, the Seventh Circuit vacated the ALJ’s decision and remanded the matter for further proceedings.  The Court criticized the ALJ for basing his decision on the sole physician to testify in support of OSHA’s position and ignoring the “strong indications that [his] favored witness got things wrong.”  Indeed, the Court discounted OSHA’s physician’s testimony because he failed to explain why, if the work activities in the packing department contribute to epicondylitis, no other worker in the Company’s 10 years of operations had contracted this same condition.  Additionally, the Court stated that OSHA, not the judiciary, must determine what “§ 1904.5(a) means in saying that an injury is work-related if working conditions ‘contributed to’ the injury.”  The Court proposed two alternative meanings for the “contributed to” requirement for OSHA to consider: (1) “increased the probability, above background levels, by a statistically significant amount;” or (2) “doubled the probability.”

Nevertheless, the Seventh Circuit was puzzled by the presence of the work-relatedness requirement in § 1904.4(a).  The Court reasoned that if the purpose of the injury log is to help the U.S. Department of Labor determine which occupations are hazardous and in need of enforcement resources and regulatory changes, then that purpose is best served if employers were required to record all injuries, not just the injuries that employers determine are connected to the workplace.  The Court further noted that eliminating the work-relatedness requirement would save employers time and the high expense of evaluating whether workplace factors contribute to injuries and illnesses.  For these reasons, the Court noted that “the Secretary may wish to take another look at § 1904.4(a).”

Because of the Caterpillar Logistics case, it remains unsettled whether an employee’s job duties must be the cause of an injury or illness or a cause to constitute work-relatedness.  At the very least, however, this decision reminds ALJs to weigh all the evidence in determining whether an injury or illness is work-related and/or an anomaly.  Employers should stay tuned for further guidance on how much workplace factors must contribute to injuries and illness to be considered work-related.  In the meantime, because the work-relatedness requirement is on OSHA’s radar, employers should review their regulatory obligations to record work-related injuries and illnesses, and ensure that they are maintaining in accurate injury and illness recordkeeping logs.

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.

*          *          *          *          *          *          *          *

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).