OSHA Update—Tips for Surviving OSHA Inspections—Part I

With all the changes from the Occupational Safety and Health Administration (“OSHA”) over the last year or so, employers need to get prepared for increased inspections and safety audits in the near future.  This is especially true with the appropriations language revisions OSHA has proposed for FY 2017.  OSHA’s stated purpose for its proposal is, among other things, to “allow targeted safety and health inspections of small establishments that have the potential for catastrophic incidents” and that are particularly covered by OSHA’s Process Safety Management (“PSM”) regulations.   OSHA even cited the incident in West, Texas, as an example of the need for this type of targeted inspection, so employers in OSHA’s Region 6—especially those covered by the PSM regulations—may see an increase in attention from the agency.

Employers should take action now to prepare for that attention.  With that in mind, we will be doing a weekly post on the Gardere Work Knowledge Blog on various tips and considerations to help employers manage OSHA inspections (with a particular focus on the application of the PSM regulations, which generally contain requirements for safety in processes for highly hazardous chemicals).  This is the first of five segments.

The first step to surviving an OSHA inspection of any type (and in particular, a PSM audit) is to review, revise, and update safety policies, procedures, and safety information.

OSHA inspections are often unannounced and unexpected—indeed, it is the express purpose of the OSH Act under Section 2(b)(10) for the enforcement program to prohibit advance notice.  Their first day onsite, OSHA officials may even serve a request or subpoena for the production of documents with a short response deadline.  Employers therefore need to ensure their policies, procedures, and other written safety information are up-to-date and complete, both as a matter of best practices and regulatory requirements.  See, e.g., 29 C.F.R. § 1910.119(f)(3) (stating that “operating procedures shall be reviewed as often as necessary to assure that they reflect current operating practice, including changes that result from changes in process chemicals, technology, and equipment, and changes to facilities” and requiring employers to certify annually that their operating procedures are “current and accurate”).

OSHA’s PSM regulations, for example, require an employer to “develop and implement written operating procedures” that include, at least the following elements: steps for each operating phase, operating limits, and safety and health considerations for the operations.  29 C.F.R. § 1910.119(f)(1).  Each of those elements comes with additional details that must be included and that an OSHA compliance officer or industrial hygienist will specifically look for during an audit.  See, e.g., OSHA, Auditing Checklist for 29 C.F.R. § 1910.119, available here.

If employers review their policies, procedures, and other written safety information regularly and as required by the OSHA regulations, they will have accomplished two goals: (1) ensuring their employees are informed in writing about safety in the workplace; and (2) being prepared when OSHA comes knocking.  This is a win-win for employers.

If you have any questions about the applicability of the OSHA regulations to your business and/or your rights as an employer during and after an OSHA inspection, reach out to an attorney knowledgeable about the agency and its requirements.