As the Occupational Safety and Health Administration (OSHA) ramps up investigations and citation efforts and Congress considers the Protecting American Workers’ Act—which, as currently drafted, would increase penalties and provide for more rigorous fatality (or serious injury) investigations—it is important for contractors to review OSHA compliance efforts and develop a plan for effectively managing an OSHA inspection.
Comply with OSHA Regulations
Ensure all management personnel designated for safety compliance issues are properly assigned and trained. Foster a culture supportive of a safe work environment and consider having managers and employees sign a commitment to workplace safety. Encourage employees to report safety concerns and conduct an internal or external safety and hazard audit of the company facility. Work to correct hazards or areas that need improvement as soon as possible. Coordinate with other employers on multi-employer sites, and consider adding language to subcontractor agreements to ensure all subcontractors comply with OSHA regulations.
Prepare for the Worst
Establish a crisis management team to deal with jobsite fatalities, serious injuries or hazardous spills. In addition to potential OSHA liability, jobsite accidents often expose companies to tort liability. Especially at a multi-employer site, investigators representing multiple interests often arrive on the scene within hours of an incident. A trained team must be ready to deal with the competing interests, protect the rights of employees involved in the incident, talk to the media (if necessary), limit the company’s exposure to liability and otherwise manage the crisis in a calm, effective manner.
Manage the Inspection Properly
If an OSHA investigator notifies the company of an upcoming investigation or arrives at the facility for an unannounced investigation, notify the company’s OSHA attorney immediately. Discuss with counsel any potential objections or defenses to the investigation prior to the opening conference.
The opening conference establishes the focus areas of the investigation; the scope and route of the walk-around inspection; the designated trade-secret areas or processes; the procedure for conducting employee interviews and producing documents; the schedule of interviews; the documents for review by OSHA; the procedure for requesting copies of employee complaints; and any rules and procedures OSHA must follow.
During the walk-around phase, designate a safety officer to shadow each OSHA investigator, taking notes about the areas inspected, items discussed and employees interviewed. The safety officer should request an explanation if the investigator deviates from the scope of the investigation outlined in the opening conference.
Also, find a route that provides the least exposure to other areas. Because investigators are required to report any OSHA violations they see, limiting exposure to only the areas of the site relevant to the inspection may prevent unnecessary citations.
During the closing conference, be sure to understand and document OSHA’s proposals. Address all areas of concern after consulting with the company’s OSHA attorney. Keep the lines of communication open with OSHA, informing the agency of efforts to abate areas of concern and comply with all regulations. If citations are issued, work with the attorney and OSHA to resolve issues in an informal settlement. This may be more difficult given the current administration’s statements regarding settlements, but it remains an option worth exploring.
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Friday, September 3, 2010