When OSHA Visits: Responding to an OSHA Inspection
In 1970, Congress passed the Occupational Safety and Health Act (the “OSH Act”) in response to growing concerns regarding the safety and health of the country’s workers. The purpose of the OSH Act, as stated by Congress, is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” This purpose is to be accomplished through a variety of actions, including establishing employer and employee workplace safety responsibilities, development of safety and health program standards, research on occupational safety and health problems, training programs, and encouraging states to assume responsibility for occupational safety and health laws.
The issue of workplace safety and health continues to be of prime importance. In 2014, the last date for which complete statistics are available, 4,821 workers were killed on the job. That is 92 workers killed each week, or 13 workers killed each day. The riskiest industry for workers was construction, accounting for 17% of all deaths. The four most common causes of worker death were: (1) falls; (2) electrocution; (3) being struck by an object; or (4) being caught between and crushed by an object. As might be expected, the five most cited violations of the standards were: (1) lack of fall protection; (2) lack of hazard communication plan; (3) scaffolding deficiencies; (4) respiration (dust) problems; and (5) lockout/tag out.
The OSH Act imposes two primary requirements on employers: (1) furnishing places of employment that are “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees; and (2) complying with occupational safety and health standards promulgated by the U.S. Department of Labor (“DOL”) through the Occupational Safety and Health Administration (“OSHA”). Employees also are required to comply with all standards promulgated by OSHA that apply to employee conduct.
B. Operation of the Occupational Safety & Health Administration
OSHA was established following passage of the OSH Act to perform the following general tasks: (1) Encourage employers and employees to reduce workplace hazards and to implement new or improve existing safety and health programs; (2) Provide for research in occupational safety and health; (3) Maintain a reporting and recordkeeping system to monitor job-related injuries and illnesses; (4) Establish training programs for occupational safety and health; (5) Develop and enforce mandatory job safety and health standards; and (6) Provide for the development analysis, evaluation, and approval of state occupational safety and health programs.
OSHA’s primary activity is enforcement of the OSH Act, although some agency activities have emphasized OSHA’s consultative and training functions in helping businesses to comply with federal standards. OSHA procedures for setting or modifying workplace safety and health standards may be initiated by the agency itself or in response to petitions from other entities including the Department of Health and Human Services (“HHS”), the National Institute for Occupational Safety and Health (“NIOSH,” which is a research arm of HHS), state and local governments, employers, labor representatives, and other interested persons. If it is determined a standard is needed, OSHA may request recommendations from various advisory committees, including two standing committees–the National Advisory Committee on Occupational Safety and Health and the Advisory Committee on Construction Safety and Health. Proposed or modified standards usually are published in the Federal Register as a Notice of Proposed Rulemaking that gives the public a certain period in which to comment on the proposed standards. Following the comment period, the agency may hold public hearings on the proposed standards. Once the comment and public hearing stages have ended, OSHA must publish its final standard in the Federal Register. OSHA also has the authority to promulgate emergency temporary standards for immediate implementation if the agency determines that a serious health or safety threat exists. Persons who are adversely affected by a final or emergency standard may petition the appropriate U.S. Court of Appeals for judicial review.
The OSH Act provides that any state that desires to assume responsibility for developing and enforcing federal occupational safety and health standards may submit a plan to OSHA describing the state’s proposal for development and enforcement of such standards. OSHA may approve a state plan if it is satisfied that the plan meets certain criteria, including whether the plan: (1) provides for development and enforcement of safety and health standards that are or will be at least as effective as the standards promulgated by OSHA; (2) provides for a right of entry and inspection of all workplaces subject to the OSH Act, including a prohibition on advance notice of inspections; (3) gives assurance that the state will provide adequate funds for administration and enforcement; (4) provides coverage for state and local government employees; and (5) maintains OSH Act reporting and recordkeeping requirements. The plans must go through a lengthy interim operation process before final approval and are monitored by OSHA after approval to ensure compliance. Currently, 22 states and territories operate under their own plans. Currently, twenty-two (22) states and U.S. territories have OSHA-approved plans. States with approved plans include North Carolina, South Carolina, Tennessee and California, all states in which B.C. Construction is currently working on projects. Despite the emphasis on State Plans, however, certain workers are specifically excluded from coverage under a State Plan (i.e., maritime industry workers, on-base military personnel, mine workers, etc.).
A. DUTIES IMPOSED UPON EMPLOYERS BY THE ACT
1. The General Duty Clause
The Act imposes a “general duty” on employers to furnish “employment and a place of employment…free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.” This is a “catch-all” clause to provide employees a safe workplace. Since this statute was designed to augment rather than to supplant specific standards, a citation under this statute is only proper if no specific standard applies.
The general duty clause applies only to “recognized hazards” which are “likely” to cause serious physical harm, which may be eliminated by “feasible” means of abatement and which did or do exist in the workplace. The Secretary of Labor must satisfy the following four-part test to demonstrate a violation of the general duty clause: (a) a condition or activity in the workplace presents a hazard to an employee; (b) the condition or activity is a recognized; (c) the hazard is causing or likely to cause death or serious harm; and (d) feasible means exist to eliminate or materially reduce the hazard.
There is no requirement that there be a “significant risk” of the hazard coming to fruition, only that if the hazardous event occurs, it would create a significant risk to employees. In one case, exposure to Hepatitis B virus was determined to be a recognized hazard in the employer’s nursing homes under the ruling that “for the purposes [of the standards], the existence of a hazard is established if the hazard’s incident can occur under other than freakish or other impossible occurrence of circumstances.” In this case, the. Secretary of Labor successfully established the existence of a hazard by showing exposure to infected patients posed the hazard of transmission, and that there was potential that employees could be exposed even though the evidence showed that only a small number of patients were HBV positive and there were no recorded cases of HBV transmission from those patients to employees.
A recognized hazard may be shown by either the actual knowledge of the employer or the standard of knowledge in the employer’s industry — an objective test.
The feasibility portion of the test means that, for abating the hazard, feasibility need not be based on the relevant industry standards, but rather may be based on the opinion of safety or health experts familiar with the relevant industry.
Under the general duty clause, the employer is not entitled to argue that compliance with requirements of a specific standard insulated from any violation. In UAW v. General Dynamics Land Systems Division, the court held that even if an employer complies with the requirements of a specific standard, it still may be in violation of the general duty clause if it knew that mere compliance with the standard was inadequate. The court stated:
“If . . . an employer knows a particular safety standard is inadequate to protect his workers against a specific hazard it is intended to address, or that the conditions in his place of employment are such that the safety standard will not adequately deal with the hazards to which his employees are exposed, he has a duty under [the general duty clause] to take whatever measures may be required by the Act, over and above those mandated by the safety standard, to safeguard his workers,”
2. Duty to Comply with Occupational Safety Health Standards
Federal statutes authorize the Secretary of Labor to promulgate, modify or revoke any occupational safety or health standard in accordance with the terms and conditions of the Code of Federal Regulations.
The standards must be worded such that persons of ordinary intelligence may know what conduct is required of them or is prohibited by law.
3. Record Keeping
The Act vests the Secretary of Labor with authority to promulgate regulations requiring employers to maintain all records necessary to the enforcement of the Act. The record keeping system under the regulations consists of three forms for recording occupational injuries and illnesses: a log, a supplementary record and a summary. The records must be kept on a calendar – year basis (January 1 through December 31). Completed forms are not sent to any agency, but must remain at the establishment and be available for inspection and copying by representatives of the Department of Labor. The records must be maintained at the establishment for five years following the end of the year to which they refer.
There are two types of records: (a) records of employee accidents and illnesses (not applicable to employers with 10 or less employees and for employers engaged in certain industries); and (b) records on particular hazards.
Injury logs must be kept by employers to record all occupational injuries and illnesses for each establishment. For this purpose, the employer must use the OSHA Form 300 or an equivalent which is as readable and comprehensible to a person not familiar with it. This alternate log must be completed in as much detail as the standard Form 300.
For the purpose of the regulations, an “establishment” means, a single physical location where business is conducted or where services or industrial operations are performed. Where distinctly separate activities are performed at a single location, each activity may be treated as a separate establishment. For firms engaged in physically disparate activities, records may be maintained at a place where employees report daily. For employees who do not report to a fixed location each day, and generally are not supervised, records shall be maintained at the location where they are paid, or their base location.
Recordable occupational injuries or illnesses encompass fatalities, regardless of the time between the injury and death, or the length of the illness; any cases which result in lost workdays; any non-fatal cases without lost workdays which result in transfer to another job, termination, required medical treatment (other than First Aid), involve loss of consciousness or restriction or motion. Any doubtful cases should be recorded, because failure to follow these guidelines can result in a violation of the act and the applicable standards.
Log entries must be made as early as practicable but no later than six working days after receiving information that a recordable injury or illness has occurred. If an accident results in one or more fatalities, or three or more hospitalizations, the employer must report the fatality/hospitalization to the OSHA area office within eight hours.
An employer is required to maintain the log even in the absence of any reportable injuries or illnesses. An employer may not defend against an alleged record keeping violation by asserting that it did not experience any illnesses or injuries. In fact, it is has been held that a failure on the part of OSHA to send the 300 Form to an employer does not exclude an employer from its obligation to maintain the required illness and injury log.
There is an additional duty to have a supplementary record of an accident available at each establishment within six working days of learning a recordable case has occurred. For this purpose, the employer should use either OSHA Form 301 or, alternatively, worker’s compensation, insurance or other reports, if they contain identical material required by Form 301.
Employers must post in a conspicuous place an annual summary of illnesses and injuries by no later than February 1 of each year, and that posting must remain up and visible to employees until March 1 of each year. In the absence of a fixed establishment, or for employees not reporting to a fixed establishment on a regular basis, a copy must be mailed to each employee receiving pay during the month. The employer must certify, by signature, that the summary is true and complete.
Records of specific hazards and activities (such as asbestos exposure) must be maintained for the period of time prescribed for each hazard.
Injury logs, supplementary records and annual summaries are required to be retained in each establishment for five years following the end of the year to which they were late. If ownership of the business changes, the new owner must keep records for the portion of the year they owned the company, and they must preserve the records of the previous owner for the total applicable time period.
An employer who knowingly makes any false statement, representation, or certification, in any record or other document required to be maintained by the act is subject to fine or imprisonment.
Failure to maintain or file records is required, or in the detail required by the forms and instructions issued under the regulations, may result in the issuance of citations and penalties.
An employer who has employees exposed to toxic substances or horrible physical agents must make available to all current or former employees certain existing exposure and medical records. Exposure records which employees must have access include: (a) environmental monitoring records; (b) biological monitoring records; (c) material safety data sheets; and (d) any other record disclosing the identity of a toxic substance or harmful physical agent.
This standard is meant to provide workers the right to examine and copy their own occupational health records maintained by employers and to preserve data for epidemiological studies. Although the employer is responsible for compliance with these provisions, the pertinent provisions may be carried out by a healthcare professional in charge of employee medical records.
Unless a specific OSHA standard indicates otherwise, each employer shall ensure the retention of records as follows: (a) each employee’s medical records must be maintained for 30 years from the last date of employment; (b) each employee exposure record must be retained for 30 years; and (c) each analysis using medical or exposure records shall be preserved and maintained for 30 years. The form and manner or process of record preservation is not mandated as long as the information is preserved and retrievable except that X-rays must be preserved in their original state.
The employer is required to allow an employee or its representative reasonable access to the employee’s health records within 15 working days of the request. The term “employee” means a current or past employee. If such access cannot be provided, the employer shall notify the employer or the employee’s representative within those 15 working days of the reason for the delay and the earliest date the records will be available.
An employee’s designated representative must have specific written consent of the employee to gain access to the employee’s medical records, and a physician representing the employer may recommend that the employer designated representative accept summaries in lieu of records or accept the release of records only to a physician or other designated representative.
In addition to record keeping, every employer, regardless of size, must report to OSHA: (a) all work-related fatalities; (b) all work-related inpatient hospitalizations of one or more employees; (c) all work-related amputations; and (d) are work-related losses of an eye. Work-related fatalities must be reported by the employer within eight (8) hours of learning of them. Employers are, however, only required to report fatalities occurring within thirty (30) days of a work-related incident. For any inpatient hospitalization, amputation or loss of an eye, employers must make a report to OSHA within twenty-four (24) hours of the work-related incident.
In making a report to OSHA, the employer must report the following information: (a) establishment name; (b) location of the work-related incident; (c) time of the work-related incident; (d) type of reportable event; (e) number of employees who suffered the event; (f) names of employees who suffered the event; (g) a contact person and telephone number; and (h) a brief description of the work-related incident.
An employer does not have to report an event if it: (a) resulted from a motor vehicle accident on a public street or highway (but employers must report the event if it happened in a construction work zone); (b) occurred on a commercial or public transportation system; or (c) occurred more than thirty (30) days after the work related incident in the case of a fatality or more than twenty-four (24) hours after the work-related incident in the case of an inpatient hospitalization, amputation or loss of an eye.
B. Protection of Employees from Discrimination
Statutory law prohibits discharging or discriminating against an employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding or inspection under or related OSHA regulation or testifies or is about to testify in any proceeding. These prohibitions against discrimination apply not only to employers but to any person who might discriminate against an employee because of protected activities.
C. The Inspection Process
Inspections are conducted according to priorities: (a) imminent dangers; (b) accidents and fatalities; (c) valid employee complaints; and (d) general workplace conditions.
An “imminent danger” is defined by the Act as a condition “which could reasonably be expected to cause death or serious physical harm immediately or before … such danger can be eliminated through the enforcement procedures.”
A fatality will result in a job site inspection, and if five or more employees are hospitalized as a result of job site conditions, an inspection can also be expected. Additionally, inspections may be ordered as the result of publicity surrounding an accident, or where an employer has refused to abate the cause of a previous accident.
Inspections will also be conducted upon receipt of a valid employee complaint. The Act allows employees the right to confidentially request an inspection of workplace conditions.
Finally, the most common type of inspection is the general workplace condition inspection which includes randomly selected inspections of general industry, construction sites, and agricultural operations, together with follow-up inspections.
For example, according to one published study in North Carolina, only 15% of all business establishments inspected during a given fiscal year were in compliance with OSHA standards, and the inspections revealed an average of 3.84 violations of standards per job site.
2. Notice and Warrant Requirements
The inspections are conducted without advance notice. While the original federal act allowed for inspections without warrants, the United States Supreme Court ruled that the provisions of federal OSHA allowing warrantless searches violated the Fourth Amendment of the United States Constitution. North Carolina’s provision authorizing warrantless searches is virtually the same as the federal provision, and it too was declared in violation of the Fourth Amendment.
An inspection begins with a compliance officer presenting credentials to the “owner, operator, or agent in charge” of a business. Someone with the appropriate authority is then afforded the opportunity to consent to the inspection. Consent to inspect subcontractors at a multiemployer work site may be given by the general contractor with “common authority” over the project area. If an employer fails to object, it will be construed by the Safety and Health Review Board as a consent to the inspection.
Evidence may be obtained by a compliance officer without a warrant from public areas or from areas which are visible to the general public. In other words, even without a warrant and with objection from the owner, a compliance officer can take photographs or otherwise develop evidence which is “available to the general public on plain view.”
If the owner or agent in charge of a business or job site objects to an inspector’s warrantless inspection, the Department may obtain a warrant unilaterally. A search is then conducted pursuant to the warrant presented to the employer, and the inspector must observe the terms, including time limitations, specified in the warrant.
While the United States Supreme Court has held that “probable cause” must be shown to support the issuance of a warrant to allow a randomly selected OSHA inspection, all that must be shown to obtain such a warrant is “that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from mutual sources.”
3. Employer’s rights during an inspection
An inspection officially begins when a Departure compliance officer or officers arrive at the workplace, display official credentials, and ask to meet an appropriate employer’s representative. Employers must have a policy in place which designates a specific representative or representatives to meet with compliance officers.
(b) Opening Conference
Before beginning the actual “walk through or inspection, the compliance officer is required to conduct an opening conference which should be used by the officer to explain the purpose of the visit, the scope of the inspection and the standards that apply. The employer’s representative must make certain that this information is provided at the opening conference so that the inspection can be properly limited to only those issues and things which have given rise to the visit. The employer’s representative should be given a copy of any employee complaint that may be involved, although the Department of Labor will delete the employee’s name if that individual has requested anonymity.
It is extremely important that prior to any inspection visit that the employer has properly trained all employees in effective safety procedures which have been documented in personnel records and had documented evidence of disciplinary actions against employees for violations of safety regulations. With this type of information at hand, the employer’s representative should, at the time of the opening conference, inform the compliance officers of the employer’s commitment to providing a safe and healthy workplace and further provide the representative with an explanation of the employer’s safety manual and how safety rules are enforced.
In any facility where trade secrets might be encountered during an inspection, the employer’s representative should identify the secrets to make certain they are protected. A trade secret has been defined as any confidential pattern process list formula blueprint device or compilation of information used by an employer which is not generally known and which gives an employer an advantage over other competitors who do not know the secret or use it. All information reported or obtained by a compliance officer which contains or which may reveal a trade secret, must be kept confidential.
When the compliance officer begins his inspection, an employee representative has a right to accompany the officer. This is permissive, not required. The employee representative is defined by statute as a “collective bargaining representative” or the representative of any other group or body which represents employees, or an individual employee who has been selected as an inspection representative.
In addition to the employee representative, the employer’s representative should accompany the compliance officer during the inspection to act as guide and to respond to any direct questions regarding operations at the facility.
Usually, the compliance officer will first request to inspect the employer’s records and this request will usually take place during the opening conference, with the compliance officer allowing the employer to make copies he reviewed after the conclusion of the inspection. The only records which an employer is required to make available to the compliance officer are records specifically identified by the act and the regulations and standards promulgated under the act. Records required include the OSHA 300 log, Industrial Commission form 19s the annual summary (year-end totals on OSHA 300 logs) the hazard communication program, exposure control plan for blood borne pathogens, and various records of training and employee exposure to such materials as lead. The scope of the inspection as announced by the compliance officer at the opening conference should be considered with the employer determines the scope of the records which need to be disclosed to the compliance officer. The records made available to the compliance officer should be only those records necessary to satisfy the purpose of the inspection.
(c) The “Walk-Through”
Upon completion of the opening conference, the compliance officer, together with lawyer and employee representatives, will “walk through” the job site to inspect work areas for safety and health hazards that are within the scope announced at the opening conference. While the Department of Labor has taken the position that the route and duration of the inspection are to be determined by the compliance officer at the site, employers should attempt to limit the inspection to the scope identified at the opening conference and select a reasonable route to be taken by the compliance officer in conducting the inspection.
During the walk through, the compliance officer is entitled to talk with employees privately unless the employee specifically state they wish an employer’s representative present. If the compliance officer attempts to interview managers or supervisors of the employer, employer’s legal counsel should be present. Additionally, the compliance officer may not conduct interviews of employees in such a manner as to disrupt ongoing business operations.
During the course of the walk through, you should require the inspector to observe all safety and health rules and practices at your business site, including the use of any safety equipment or specialized clothing.
When company representatives are asked questions during the course of the walk through, they should respond directly but not volunteer information which is not specifically requested. Employer’s representatives should never “guess” at an answer, but honestly say “I don’t know” in the appropriate circumstance. Never, under any circumstances, should a representative of the employer ever admit that a condition at the work site violates an OSHA standard.
During the walk through, the inspector may take photographs and instrument readings, collect data samples and otherwise conduct tests to monitor employee exposure to toxic fumes, dusts or gasses. It is important that the employer’s representative take photographs or samples at the same time and location as the compliance officer to be used by the employer and its legal counsel in defense of any potential citation. Additionally, the employer’s representative should make detailed written notes of the route of the inspection, areas investigated, employees interviewed and any comments of the compliance officer. These notes should be taken pursuant to a “standing directive” from corporate legal counsel, so that the employer’s representative’s notes will have been developed in anticipation of litigation and therefore protected in discovery by the attorney work product privilege.
During the course of the inspection, the compliance officer may note what appear to be obvious violations in safety standards in immediate correction. The compliance officer will often suggest a method to abate the allegedly unsafe condition. While not admitting that the condition is unsafe, the employer should undertake to comply with the compliance officer’s suggestions for abatement, since immediate efforts to abate a violation works in favor of the employer when the Department of Labor is calculating monetary penalties.
Following the inspection, the compliance officer conducts a “closing conference” to discuss the results of the inspection with the employer and employee representatives. The conference focuses on apparent violations, the fact that citations and penalties may be issued, and the periods of abatement for violative conditions that were observed by the inspector.
After the inspection, the Area Director, or designee, reviews recommendations submitted by the compliance officer in a report. The Director will issue a citation with proposed monetary penalties to the employer, if there are reasonable grounds to suggest the presence of a recognized hazard or violation of a rule, regulation or standard.
The citation must be issued within six months from the occurrence of the alleged violation. The citation must describe “with particularity,” the standard, rule, regulation, or order allegedly violated, and a time period will be fixed in the citation for abatement of the alleged violation.
The employer is required to post the citation where it can be observed by employees, and the citation must remain posted for three working days or until the violation is corrected, whichever period is longer.
The monetary penalties assessed by paid by employers to the Department of Labor are “civil” in nature.
Upon receipt of the citation, the employer may request an informal conference with the compliance officer’s supervisor. The informal conference is the employer’s first opportunity ‘to challenge the findings or assumptions contained in the citation and seek modifications of the proposed penalties.
Upon receipt of the citation, the employer may request an informal conference with the compliance officer’s supervisor. The informal conference is the employer’s first opportunity to challenge the findings or assumptions contained in the citation and seek modifications of the proposed penalties.
(a) Civil and Criminal Liability
As noted above, after the compliance officer reports findings, a decision is made as to whether citations will be issued and penalties proposed.
The citations inform the employer and employees of the regulations and standards which have allegedly been violated together with proposed length of time set for the abatement of the noted violations. The employer receives the citations and notices and proposed penalties by certified mail, and the employer must post a copy of each citation at or near the place the violations occurred for a period of at least three days or until the violation is abated, whichever is longer.
There is a civil penalty of up to $12,471.00 per day for each day that a violation continues beyond the prescribed abatement date.
Additionally, there is a civil penalty of up to $12,471.00 which can be assessed for the employer’s failure to comply with posting requirements.
In addition to the posting of the citations and the abatement of conditions which are not in accordance with the standards, various other monetary penalties may be proposed.
(b) Non Serious Violations
A non-serious violation is one which has a direct relationship to job safety and health, but probably would not result in serious physical harm or death. A penalty of up to $12,471.00 for each non serious violation (especially posting and recordkeeping violations) may be assessed, the penalties for non-serious violations may be adjusted downward by as much as 95%, depending the employer’s good faith, history of previous violations and size of business.
(c) Serious Violations
Where the cited breach of standards result in a substantial probability of serious physical harm or death to employees, a serious violation is cited. The penalty for a serious violation is a maximum of $12,471.00. Again, a penalty for a serious violation may be adjusted downward based upon the employer’s good faith, history of previous violations and size of business.
(d) Willful Violations
An employer who intentionally and knowingly commits a violation is guilty of a “willful” violation. For example, if an employer is aware that a hazardous condition exists, knows that the condition violates a standard or other obligation of the act, and yet makes no effort to eliminate it, penalties of up to $124,709.00 may be proposed for a willful violation.
(e) Repeated Violations
A repeat violation is a violation of any standard, regulation, rule, or order, where, upon re-inspection, a substantially similar violation is found, and the original violation has become a final order. Repeat violations require fines of up to $124,709.00 for each violation. To calculate repeated violations, the initial penalty is multiplied by a factor of two, five or ten depending upon the size of the employer.
(f) Criminal Penalties
In addition to the above-reference monetary “civil” penalties, violations of OSHA standards and other provisions of the act can result in criminal penalties.
Where an employer is convicted in a criminal proceeding of a willful violation of a standard which results in the death of an employee, that employer may be fined up to $10,000, Additionally, the individual may be in prison for up to six months. A second conviction doubles the possible term of imprisonment.
Falsifying records, reports or applications can, upon conviction, bring a criminal fine of $10,000 or jail term of up to six months or both.
Any employer, or agent of an employer, who assaults a compliance officer, or otherwise resists, opposes, intimidates or interferes with a safety compliance officer in the performance of his or her duties is in violation of criminal law and subject to fine or imprisonment.
A. Constitutional Requirements
A warrant is necessary only if there is a reasonable expectation of privacy. In Marshall v. Barlow’s, Inc., the Supreme Court held that the Fourth Amendment is applicable to OSHA inspections of business premises. Therefore, when an employer can establish a “reasonable expectation of privacy,” a warrant is required unless one of the exceptions to the Fourth Amendment applies.
However, the Fourth Amendment does not protect the merely subjective expectation of privacy. It protects only “those expectations that society is prepared to recognize as reasonable.” Therefore, in some circumstances, no warrant is necessary because an employer has no Fourth Amendment right.
1. Plain View/Open Fields.
The special protection afforded by the Fourth Amendment to the people in their “persons, houses, papers, and effects” does not extend to open fields. An open field need not be an “open” or a “field” as those terms are used in common speech. An outdoor construction area may be an “open field” even if it is not in plain view because it is fenced. The Commission has held that a fenced construction site on and adjacent to an active interstate highway must be considered an “open field” for purposes of analysis under the Fourth Amendment.
Likewise, there is no expectation of privacy protected by the Fourth Amendment in public places.
2. No Reasonable Expectation of Privacy for Other Reasons.
The Fourth Circuit has held that employers do not have-a reasonable expectation of privacy in their OSHA logs or in any material requited to be publicly posted.
3. Reasonable Reporting Requirement Exception.
Under the Access to Records standard, 29 C.F.R. Pt. 1910.20, although employers do have a reasonable expectation of privacy in employee medical and exposure records, no warrant is necessary for access to these documents because this standard’s provisions fall within the “reasonable reporting requirement” exception to the Fourth Amendment.
No search warrant is needed where a search is undertaken with the consent of one with dominion over the property. The consent need not be explicit. Consent is inferred if the employer does not object. Managers, supervisors or others having apparent authority (gate guard) may consent. Therefore, all personnel should be advised, in writing, of the employer’s policy regarding OSHA inspections.
5. Apparent Authority to Consent.
In Illinois v. Rodriguez, the Supreme Court held that even if it is later established the third party lacked actual authority to consent, an inspection conducted in the reasonable belief that the third party had authority to consent will be considered valid.
6. “limited consent.”
Limited consent may be negotiated and places certain pre-conditions on the consent (i.e., the area to be inspected, the number of COs, the taking of photographs or samples, employee interviews). OSHA should be provided with a written statement setting forth the limits of the search.
Instantly, employers may be subject to contempt if they prevent an OSHA inspection. One court has affirmed a contempt citation against an employer that intentionally shut down its sawmill in order to prevent an OSHA inspection. The appellate court held that because the employer failed to argue that its right to due process had been violated at the District Court level, it waived the right to assert the issue on appeal.
B. Diminishing Rights Against Unreasonable Search and Seizure
1. Warrant-Based Searches (If Entry is Refused).
If entry is refused, the Solicitor of Labor may seek a warrant from the U.S. District Court. The Solicitor of Labor must show that there is “probable cause” to believe a violation exists or that OSHA is conducting the inspection in accordance with “reasonable legislative or administrative standards.”
(a) Decide Whether to Require a Warrant. Do the benefits gained by refusing immediate entry outweigh the risk of a possibly more rigorous inspection if a warrant is obtained? When a serious accident or fatality has occurred, employers should be aware that evidence obtained by local law enforcement officials, newspaper reports, etc., may be used in a subsequent civil action filed against the employer. In this situation, the .employer should consider requiring all officials to obtain a search warrant before conducting an investigation, taking photographs, etc. Local law enforcement officials- may be unable to obtain a warrant if they do not have probable cause. that a criminal act has occurred. OSHA may inspect for an accident that has not been reported. OSHA is now monitoring local newspapers for news of accidents and fatalities.
(b) Warrants Based on Employee Complaints. Warrants based on employee complaints must be based on personal knowledge of a violation, and must supply specific evidence of an existing violation. A majority of courts have limited the scope of the search to the violations alleged in the complaint.
(c) Warrant Based on OSHA CO’s Observations. At the time a consensual inspection is refused the CO’s observation can be sufficient to serve as probable cause.
(d) Warrant Based on General Administrative Plan. A warrant may be obtained on a “showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources such as, for example, dispersion of employees in various types of industries across a given area, and the desired frequency of searches in any of the lesser divisions of the area.” Generally, a warrant for an inspection performed pursuant to a general administrative plan will be upheld if: (1) the warrant application contains a description of the administrative investigation program on which it is based, and (2) the desired inspection warrant fits within that program. However, an administrative plan for expanding employee complaint-based inspections to full scope inspection does not comply with the requirements of neutrality because it relies on an employee’s complaint as the trigger.
(e) Failure to Honor Warrant. The 11th Circuit upheld contempt charges against Trinity Industries and Mosher Steel Company for failing to honor OSHA inspection warrants. The 9th Circuit affirmed a criminal contempt order against a foundry for refusing to honor an OSHA administrative search warrant. The foundry argued that the administrative search warrant violated its Fourth Amendment right against unreasonable search and seizure, The Court explained that OSHA relies heavily on the tactical advantage of surprise. Hence, allowing owners to litigate the validity of a search warrant would seriously frustrate the purpose of the Act. The California Court of Appeals held that search warrants issued pursuant to “probable cause” do not have to meet the Penal Code standard to satisfy the Fourth Amendment of the U. S. Constitution and the California Constitution. Rather, a magistrate must weigh the government’s interest against privacy rights of the employer.
A. Penalties for Failure to Keep Records
1. Hazard Communication.
(a) The underlying reason for the existence of the Hazard Communication Standard is described in the standard itself. The purpose of this Section is to ensure that the hazards of all chemicals produced or imported are evaluated, and that information concerning their hazards is transmitted to employers and employees. This transmittal of information is to be accomplished by means of comprehensive hazard communications programs, which are to include container labeling and other forms of warning, material safety data sheets and employee training.
(b) The HCS is referenced by several different OSHA standards, depending upon the particular industry covered: 29 C.F.R. §1910.1200 for General Industry, §1915.99 for shipyard employment, §1917.28 for marine terminals, §1918.90 for long shoring, §1926.59 for construction and §1928.21 for agriculture. For convenience, this outline will reference appropriate sections of the HCS only by applicable paragraphs of the standard.
(c) In dealing with the HCS, it is easy to get lost in a blizzard of acronyms and technical definitions. However, three key terms employers must understand may be generally defined as follows:
i. Hazardous Chemicals. Any chemical which is a physical hazard (combustible, explosive, flammable, unstable, water reactive, etc.) or health hazard (carcinogens, toxic agents, irritants, corrosives, sensitizers, etc.).
ii. Labels. For in-plant containers, written, printed, or graphic material displayed on, or affixed to containers of hazardous chemicals. Labels must contain appropriate hazard warnings and state the identity of the chemical as it appears on the material safety data sheet. Ship containers must also have the manufacturer’s name and address.
iii. Material Safety Data Sheet (MSDS). Written or printed material containing information known about the chemical. The MSDS must include the chemical and common names (in name on label container if different), and must list (1) the physical and chemical characteristics and hazards; (2) health hazards including signs and symptoms of exposure; (3) any applicable exposure limits; (4) the date of preparation of the MSDS; (5) appropriate emergency and first aid procedures; (6) known control measures; (7) applicable precautions for safe use and handling, including appropriate personal protective equipment; and (8) the name of the chemical manufacturer, importer, distributor or other party responsible for preparing of distributing the MSDS.
iv. The HCS is designed to result in a downstream flow of hazard information from the producers of chemicals to users of these products. The HCS attempts to accomplish this objective by imposing the following basic requirements:
(a) Chemical manufacturers and importers are required to perform hazard determinations (or evaluations) on all chemicals they produce or import. Employers are not required to conduct their own evaluation of chemicals unless they choose not to rely on the evaluation performed by the chemical manufacturer or importer. Chemical manufacturers must also produce MSDSs and labels or hazardous chemicals they produce or import. HCS, paragraphs (f) and (g).
(b) All employers with employees exposed or potentially exposed to hazardous chemicals must establish, implement and maintain a hazard communication program (HPC), which includes a list of hazardous chemicals present, provisions for container labeling and other forms of warnings, access to MSDSs, and procedure for training employees on chemical hazards and protective measures.
B. MSDS Forms.
1. Obligations of Employers Regarding MSDS and Labeling are as Follows:
(a) Generally speaking, employers should take the following steps regarding labels:
i. Ensure that appropriate containers are labeled, that the labels are legible, and that they are prominently displayed;
ii. Make certain the label includes the identity of the chemical and appropriate hazard warnings.
(b) Regarding MSDSs, employers must have a MSDS for each hazardous chemical they use, and must ensure that the MSDSs are readily accessible to employees when they are in their work areas during each work shift.
(c) Employers are entitled to rely on information on MSDSs and labels which they accepted in good faith from the chemical manufacturer, importer or distributor. However, if MSDSs or labels are missing or have not been received from the manufacturer, importer or distributor, the employer must make a good faith effort to obtain the missing information. Moreover, obvious defects on the face of a label or MSDS probably will cause the employer to be cited, on the theory that its reliance on the manufacturer, importer, or distributor was not in good faith.
2. Substances Subject to MSDS and Labeling Requirements
(a) The labeling and MSDS obligations apply to each hazardous chemical “known to be present” in a mixture.
(b) For example, a byproduct is covered by the HCS when it is present in concentrations of 1% (by weight or volume) or greater and presents a health hazard; or greater than 0.1% if it is a carcinogen, Even if the byproducts do not exceed these levels, if there is other evidence to indicate that the byproduct could be released and present a health hazard, then the hazards of the byproducts must be reported on the MSDS.
(c) Moreover, the exposure to the chemicals, to make the chemicals subject to the labeling and MSDS requirements, must be “under normal conditions of use or in a foreseeable emergency.” In other words, chemicals that are inextricably bound in a mixture and thus not available for exposure would not be covered.
(d) Additionally, certain chemicals, although hazardous, are exempted from the coverage of the HCS; e.g., hazardous waste when subject to environmental protection agency regulations, or certain kinds of consumer products.
3. Contents of MSDSs and Labels
(a) In advising OSHA inspectors in how to determine if a MSDS contains the necessary information, OSHA Instruction CPL 2-2.8B lists 17 items:
i. Does each MSDS contain the identity used on the label;
ii. Does each MSDS contain the chemical and common name for single substance hazardous chemicals;
iii. For mixtures tested as a whole, does each MSDS contain the chemical and common name of the ingredients which contribute to the known hazards, as well as the common name of the mixture itself;
iv. For mixtures not tested as a whole, does each MSDS contain the chemical and common name of all ingredients which are health hazards;
v. Does each MSDS contain the chemical and common name of all hazardous ingredients;
vi. Does each MSDS contain the physical and chemical characteristics of the hazardous chemical;
vii. Does each MSDS contain the physical hazards of the hazardous chemical;
viii. Does each MSDS contain the health hazards of the hazardous chemical;
ix. Does each MSDS contain the primary routes of entry;
x. Does each MSDS contain the permissible exposure limit;
xi. Does each MSDS contain information on carcinogen listings;
xii. Is each MSDS in English;
xiii. Does each MSDS contain procedures and precautions for safe handling and use of the chemical;
xiv. Does each MSDS contain generally applicable control (e.g., work practices, personal protective equipment, etc.);
xv. Does each MSDS contain emergency and first aid procedures;
xvi. Does each MSDS contain data preparation or last change;
xvii. Does each MSDS contain the name, address, and telephone number of the responsible party.
(b) The contents of labels must include:
i. The identity of the hazardous chemical (which can be any chemical or common name designation, so long as the term used is also used on the list of hazardous chemicals and on the MSDS;
ii. Appropriate health warnings. It is not necessarily “appropriate” to warn on the label about every hazard listed in the MSDS, although it is probably necessary to list all well-substantiated hazards, even if they are not acute. Keep in mind that the downstream employer is entitled to rely in good faith on the labels supplied by the manufacturer, importer, or distributor. If, however, the supplied label does seem to convey usable information regarding the hazard, the employer may have a duty to seek further information.
4. Location of Labels – Place of MSDS Retention and Employee Awareness/Access
(a) Location of Labels. Employers must ensure that each container of hazardous chemicals in the workplace has a label containing the necessary information. A “container” is “any bag, barrel, box, can, cylinder, drum, reaction vessel, storage tank, or the like that contains a hazardous chemical.” Pipes, engines, field tanks, or other operating systems in a vehicle are not considered to be containers. Likewise, open areas such as rooms are not considered “containers.”
(b) Location of MSDSs.
i. MSDSs must be readily accessible to employees when they are in their work areas during each work shift. Where employees must travel between more than one geographical locations during a work shift, the MSDSs may be kept at a central location at the primary workplace facility. Note: Keep in mind that, regardless of what location the employer selects to keep the MSDSs, the overriding thought should be to provide quick access to employees who may need the information, particularly in an emergency.
ii. Part of the employer’s hazard communication program should include informing the employees of the location and availability of both the written hazard communication program and MSDSs.
C. Written Safety Program.
1. HCS requires that the hazard communication program:
(a) Be written;
(b) Describe how the facility will comply with the standard;
(c) Deal with plans for labeling and other forms of warning;
(d) Describe how MSDSs will be obtained for each hazardous chemical used in the work area;
(e) Describe how MSDSs will be made available in the workplace to employees;
(f) Describe how information and training will be provided to employees;
(g) Include an inventory of all toxic chemicals known to be present in the workplace, cross referenced to the MSDS file;
(h) Explain how workers will be informed of hazards connected with non-routine jobs, such as dealing with accidental spills and leaks;
(i) Explain how workers will be informed of hazards associated with chemicals contained in unlabeled pipes;
(j) Contain information on how contract employers will be informed about hazards their employees may encounter while working in the facility.
In addition, the written plan must be given to representatives of OSHA employees, and employee representatives upon request.
D. Training Program and Documentation
1. For downstream employers, the most critical application of the HCS to their operation is the requirement that they develop a hazard communication program.
2. To properly address all of the recommended elements of a hazard communication program, employers should take the following steps:
(a) Prepare a written hazard communication plan;
(b) Identify and evaluate the chemical hazards in the workplace;
(c) Prepare a hazardous substance. Inventory;
(d) Develop a file of MSDSs;
(e) Provide employees with access to MSDSs;
(f) Ensure that incoming products have proper labels;
(g) Develop a system for within-facility labeling where necessary;
(h) Develop a training program;
(i) Identify and train employees who are potentially exposed to hazardous chemicals;
(j) Evaluate the program and improve and update it where necessary.
3. The following is a sample written program which can be used as a model for employees who are developing their own plans. There is no special magic to this sample program, and other effective methods may be substituted to conform to the employers’ specific needs or practices:
SAMPLE WRITTEN HAZARD COMMUNICATION PROGRAM
The purpose of this instruction is to ensure that [facility name] is in compliance with the OSHA Hazard Communication Standard (HCS) 29 C.F.R. §1910.1200.
The [occupational safety and health manager (OS&H manager) or other technically qualified designee] is the overall coordinator of the facility program acting as the representation of [senior facility official], who has overall responsibility.
In general, each employee in the facility will be appraised of the substance of the HCS, the hazardous properties of chemicals they work with, and measures to take to protect themselves from these chemicals.
II. List of Hazardous Chemicals
The (OS&H manager or designee) will maintain a list of all hazardous chemicals used in the facility, and update the list as necessary. The hazardous chemical list will be updated upon receipt of hazardous chemicals at the facility. The list of hazardous chemicals is maintained at [location].
III. Material Safety Data Sheets (MSDSs)
The OS&H manager of [designee] will maintain an MSDS library on every substance on the list of hazardous chemicals in the [location]. The MSDS will consist of a fully completed OSHA Form 174 or equivalent. The [location manager or supervisor] will ensure that each [work area or shop] maintains an MSDS for hazardous materials used in that area. MSDSs will be readily available to all employees.
The [local OS&H manager or designee] is responsible for acquiring and updating MSDSs. The [location manager or supervisor] will review each MSDS for accuracy and completeness and will consult with the [Area/Region/headquarters OS&H manager] if additional research is necessary. All new procurements for the facility must be cleared by the [local OS&H manager or designee]. Whenever possible, the least hazardous substance will be procured.
MSDSs that meet the requirements of HCS must be fully completed and received at the facility either prior to, or at the time of, receipt of the first shipment of any potentially hazardous chemicals purchased from vendors failing to provide approved MSDSs in a timely manner.
IV. Labels and Other Forms of Warning
[Person] is designated to ensure that all hazardous chemicals in the facility are properly labeled. Labels should list at least the chemical identity, appropriate hazard warnings, and the name and address of the manufacturer, importer or other responsible party. [Person] will refer to the corresponding MSDS to verify label information. Immediate use containers, small containers into which materials are drained for use on that shift by the employee drawing the material, do not require labeling. To meet the labeling requirements for HCS for other in-house containers, refer to the label supplied by the manufacturers. All labels for in-house containers will be approved by [person] prior to their use.
[Person] will check on a monthly basis to ensure that all labels are up to date.
Each employee who works with or is potentially exposed to hazardous chemicals will receive initial training on the HCS and the safe use of those hazardous chemicals. Additional training will be provided for employees whenever a new hazard is introduced into their work areas. Hazardous chemical training is conducted by [person/department/vendor]. (Attach a copy of course outline, training schedules, and a description of course materials.)
The training will emphasize these elements:
· a summary of the standard and this written program;
· hazardous chemical properties including visual appearance and odor and methods that can be used to detect the presence or release of hazardous chemicals;
· physical and health hazards associated with potential exposure to workplace chemicals;
· procedures to protect against hazards, e.g., personal protective equipment, work practices, and emergency procedures;
· hazardous chemical spill and leak procedures; and
· where MSDSs are located, how to understand their content, and how employees may obtain and use appropriate hazard information.
The [local OS&H manager or designee] will monitor and maintain records of employee training and advise the facility manager on training needs.
VI. Contractor Employers
The [local OS&H manager or designee], upon notification from [responsible supervisor], will advise outside contractors of any chemical hazards which may be encountered in the normal course of their work on the premises.
VII. Non-Routine Tasks
[Maintenance or other supervisors] contemplating a non-routine task, [e.g., boiler repair] will consult with the [local OS&H manager or designee [and will ensure that employees are informed of chemical hazards associated with the performance of these tasks and appropriate protective measures. This will be accomplished by a meeting of supervisors and the OS&H manager with affected employees before such work is begun.
VIII. Additional Information
Further information on this written program, the hazard communication standard, and applicable MSDSs is available at (location/telephone number].
E. Enforcement of Safety Policies
1. Unlike a number of standards promulgated by OSHA, the HCS received substantial support from certain elements in the business community, Particularly for the downstream employer, the requirements imposed by the HCS, and the creation of a hazard communication program, can work to their advantage by reducing unknown hazards, and thus workplace accidents that result from them.
2. Thus, employers should regard the program as an opportunity to instruct and educate their employees in order to prevent injuries which will inevitably have an impact on the employer’s operation.
3. The employer should also consider the hazard communication program as a means of evaluating its operation and determining if it should effectuate changes. The downstream employer will sometimes be as dismayed as its employees to discover the hazards associated with the products it is using, and determine a better and safer method of accomplishing what it needs.
4. Finally, the hazard communication program, if effective, will provide protection against legal liability.
North Carolina Fellow Thomas H. Davis, Jr. is a partner in Poyner Spruill LLP’s litigation section and has more than 25 years of experience in the litigation and arbitration of complex cases. Tom regularly represents property owners, design professionals and construction contractors on construction related issues, including contract negotiation, claims analysis and presentation, labor and OSHA disputes, professional licensing disputes, and land condemnation.