When OSHA Visits: North Carolina’s Occupational Safety and Health Act
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Editor’s Note – Many of our readers ask us about OSHA inspections in nursing facilities. Since many of our readers have little experience with OSHA inspections, we have included part one of a two-part article on OSHA inspections in nursing facilities and employers’ obligations and rights pursuant to OSHA regulations.
For almost a decade, North Carolina has seen annual increases in workplace fatalities, injuries and illnesses. Long term care facilities had one of the highest rates of injury and illness. According to the Bureau of Labor Statistics, the national rating for lost work days due to injury or illness (LWDII) for private industry was 3.0. Long term care facilities, however, averaged a rate of 7.9. According to Bureau statistics, overexertion and injuries from slips, trips and falls accounted for 72% of all cases involving days away from work at long term care facilities. Department of Labor OSHA enforcement data shows that violations of the Bloodborne Pathogens Standard is the most frequently cited standard at long term care facilities. Employees at long term care facilities have also been identified by the Centers for Disease Control and Prevention as having a high rate of exposure to tuberculosis. Workplace violence is also a proven hazard at long term care facilities. For example, in 2000, there were 3,702 occupational injuries and illnesses involving days away from work at long term care facilities that were directly attributable to acts of violence.
In order to “protect workers in one of the nation’s fastest growing industries,” the United States Department of Labor began implementing special emphasis programs of OSHA inspections at long term care facilities. Originally restricted to seven (7) states, the Department made the special emphasis program nationwide in 2002. The North Carolina Department of Labor, Division of Occupational Safety and Health, enforces OSHANC regulations within the state and has developed special operational procedures for its special emphasis program for long term care facilities. Inspections are conducted by compliance officers for the particular geographic district in which the facility is located.
An inspection officially begins when a Department of Labor 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 that designates a specific representative or representatives to meet with Department of Labor compliance officers.
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.
When the compliance officer begins his inspection, an employee representative has the 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 that 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 ask 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 that 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, the Industrial Commission annual summary (year-end totals), the hazard communication program, the exposure control plan for bloodborne pathogens, and various records of training and employee exposure to such materials as lead. The records made available to the compliance officer should be only those records necessary to satisfy the purpose of the inspection.
Upon completion of the opening conference, the Department of Labor’s compliance officer, together with lawyer and employer 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 employees 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 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 gases. 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 and require 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.
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