Being prepared, knowing your rights and presenting your company “in the best possible light” is the way to face local and national emphasis program inspections, according to Michael T. Taylor
, a lawyer with the Washington, D.C.-based law firm of Arent Fox LLP
Taylor, who specializes in occupational safety and health law, previously served as Chief Legal Counsel for the Occupational Safety and Health Review Commission, an independent agency that resolves appeals of OSHA citations and fines. He spoke recently at AIHce 2011 in Portland, Oregon.
Why should businesses bother to prepare for an NEP inspection?
Taylor said the steps taken prior to and during an OSHA visit could help businesses save money, avoid negative publicity and keep production going with little or no interruption, among other benefits
Preparation minimizes the risk of liability – both in terms of citation penalties and criminal convictions – and minimizes the risk of abatement costs. “That is probably the biggest driver in the cases I’ve been involved in,” said Taylor.
The civil penalties could have far-reaching ramifications. “In 32 states, if you violate an OSHA standard, it’s evidence of negligence if a contractor sues you in a civil case.” Taking an active role in an NEP inspection could also help a company protect its trade secrets and prevent it from becoming an unwilling member of the Severe Violators Enforcement Program (SVEP) – a designation which could result in nationwide inspections of a company’s facilities. Taylor called that prospect “a big scare,” because the SVEP program encourages litigation. There is no incentive for a corporate-wide settlement agreement if a company is still going to be in the SVEP program.
The history of NEPs
National Emphasis Programs (NEPs) began more than twenty years ago as a way for OSHA to leverage its limited resources by focusing its attention on a particular industry or hazard. “OSHA doesn’t have the resources – whether on the state or federal level – to inspect every workplace in the country,” Taylor said.
OSHA currently has ten NEPs with two more in the works, for nursing homes/health care institutions and for isocyanates -- chemicals linked to eye, respiratory tract and skin irritation and asthma in workers who are exposed to them.
At present, there are approximately 140 local emphasis programs. These, said Taylor, must be approved by the national office, are administered by area or regional offices, and change often, with additions and deletions common occurrences.
NEPs can last for long or short periods of time. Taylor cited OSHA’s trenching NEP – which originated in 1985 -- as a long-term example. A chemical NEP was a pilot program, one year in duration.
The reasons for NEPs vary. They can be established because of
- Data gathered in the agency’s annual survey
- An accident involving multiple fatalities
- Internal inspection statistics
- Highly publicized tragic events, such as the 2005 explosion at the BP plant in Texas City, TX
- Political pressure from Congress, the Chemical Safety Board (CSB), unions and other interested parties
Should you demand a warrant?
Many companies don’t realize that OSHA is required to get a warrant for every inspection that they do. If inspectors show up without a warrant, the company can require that they obtain one.
But is that a good idea?
If it takes agency personnel longer than six months to get the warrant, any hazard that existed at the initial contact will no longer be citable due to a six month limit.
However, the risks are considerable. Demanding a warrant can raise the risk of retaliation and result in a public relations disaster.
Consenting to an inspection sans warrant “gives the appearance of cooperating and the opportunity to manage the inspection and minimize business interruption,” said Taylor. “My general rule is: just consent, so that you can control the flow of information.”
Set ground rules
An NEP inspection usually involves three phases: an opening conference, during which the OSHA personnel explain the purpose and scope of the investigation and notify the manager of the records that will be needed; a walk-around; and finally, a closing conference.
Taylor advises his clients to set reasonable ground rules during the opening conference, because an NEP inspection can be much more voluminous than an ordinary OSHA inspection. “Typically, OSHA is amenable,” to such rules.
Ground rules should cover:
- The designation of a company escort (“which primarily prevents the compliance officer from getting hurt”)
- Employee interviews
- A daily debriefing
Employees should be informed that they can have a co-worker, management or counsel present during their interview with an OSHA inspector. “Ninety percent of the time, they’ll choose a co-worker,” says Taylor. “They’re just nervous, so they want someone with them during the interview.”
They should be advised that OSHA has no right to videotape or audio record the interview, or to get a signed statement from them. “With the video, they will get the person to say what they want them to say. Same with a signed statement.”
Employees should also be asked by management to waive confidentiality regarding the statement they made. If they don’t and the case goes to litigation, the company will be unable to get a copy of the statement.
Taylor tells his clients to ask OSHA for an 8-hour notice when they intend to interview employees. This enables companies to schedule workers in a way that minimizes business interruptions, and to “prep” workers for the interview.
“You just go over the basics of training,” he said. “You kind of help them jog their memory, so they feel comfortable throughout this whole process.”
In addition, ask the OSHA inspector to limit interactions with workers to five minutes during walk-arounds, when workers are busy doing their jobs and may be caught off guard by questions about equipment and training.
Employees should be reminded to tell the truth, and that nothing they say to an inspector will result in adverse job changes.
Debriefing employees after interviews can provide valuable information. “It allows us to determine whether you’re preparing them sufficiently and to determine the focus of the investigation,” observed Taylor.
Many companies fail to realize that document production is extremely important, and so don’t handle this component of an NEP inspection well. Taylor’s tips:
- Ask that requests for documents be in writing and directed to one employee. If the request is not clear, ask that it be re-written.
- Have the documents ready in a timely manner. “A quick turnaround gives the compliance officer a favorable impression of your safety and health program overall.”
- If you receive a subpoena, get an attorney.
- Review the documents before turning them over to an inspector. “You want to make sure that your responses are not over- or under-inclusive,” he said. “You can also stamp the document as ‘trade secret’ to preserve confidentiality.”
- Make shadow copies of the documents. “If you litigate the case, your attorney should know exactly what you gave to OSHA.”
Secrets and samples
OSHA is allowed to take photos of and videotape the facility – although companies can let OSHA know when something in the facility constitutes a trade secret. Doing so will mean that the government will not reveal the information if presented with a Freedom of Information Act request.
OSHA may also use sampling devices, but a company should ask for a 24-hour notice of sampling. This will allow for them to conduct parallel sampling and ensure proper methodology. In addition, the company can request the sampling results from OSHA.
How to manage the walk around
Representatives of both the employer and a union can accompany an OSHA inspector during a walk-around. Auditing the anticipated route prior to the walk-around can enable a company to fix things that are easily overlooked, such as missing midrails or a guard that is not affixed to a piece of equipment.
Wrapping it up
During the daily debriefing (that was established as one of the ground rules), the company can ask the OSHA inspector, “What concerns did you find?” The response to this question can provide insight into the scope and focus of the investigation and suggest area of abatement.
"But don’t be naïve enough to believe that if you fix something, you will not get a citation,” warns Taylor.
And finally, the company should use the closing conference as a last opportunity to shed light on any issue in dispute.