Can You Have a
 Sept. 28, 2011

Is it possible to have a great Cal/OSHA inspection at your workplace? Yes, says Lisa Prince, an attorney with The Walter Law Firm in Healdsburg, which specializes in representing employers in Cal/OSHA appeals.

You must accept that you could be inspected, plan for it and talk about it.

The first step is to review your written safety and health programs and make sure they are being implemented with consistency in your workplace. They include your Injury and Illness Prevention Program (IIPP), Heat Illness Prevention Program, Emergency Action Plan, Hazard Communication Program and other written programs. Review your material safety data sheets (MSDSs), Do regular site walks and get another set of eyes’ to evaluate, Prince advises.

Have your IIPP readily available to employees and make sure supervisors know and understand it. The worst thing you can do is have a written program and not know what it is, not have it implemented,‖ Prince explains. Tell your employees about your safety programs, conduct inspections to make sure you’re detecting and correcting hazards, train your workforce in your safety programs and document your system.

If Cal/OSHA comes calling, incomplete documentation is a pitfall you can and should avoid. For instance, Price said, if you have documented hazards but haven’t corrected them, you’ll be in trouble.

You also should train workers so that they understand the material and also can put it into practice. Documentation is a big deal when it comes to defending a citation, she says.

One way to make sure your workers know their safety is to hold employee pop quizzes. Examples of the questions you can ask include:

  • What is an IIPP?
  • What are MSDSs and where do you find them?
  • Who do you go to with safety questions?
  • Have you been trained to do this job?
  • How often do you have safety training?
  • Are you forklift-certified?

If Cal/OSHA Comes Calling
Cal/OSHA does not have the resources to inspect every workplace in California. By law, it must respond to serious and fatal incidents, and complaints. It conducts some surprise inspections such as the heat sweeps in recent years, and programmed inspections in targeted high-hazard industries.

2010-2011 Highest Hazard list for Manufacturing includes
  • Frozen food manufacturing
  • Animal slaughtering and processing
  • Bakeries and tortilla manufacturing
  • Beverage and tobacco product manufacturing
  • Wood product manufacturing
  • Ready-mix concrete manufacturing
  • Primary metal manufacturing
  • Plate work and fabricated structural product manufacturing Electric lighting equipment manufacturing
  • Wiring device manufacturing
  • Ship and boat building

The Division of Occupational Safety and Health (DOSH) also targets high-hazard employers — those with experience modification factors (X-Mods) of 1.25, meaning they are 25% above the industry average for safety incidents.

If you are the subject of an inspection or an investigation, the first thing you should do is ask for the inspector’s identification and business card, Prince advises. If the card reads Bureau of Investigation,‖ get a lawyer, she said at AgSafe. That means you have had a serious or fatal incident at your workplace. BOI, as it is known in the Cal/OSHA Legal Unit, makes recommendations to county district attorneys about prosecution, so its presence signals serious business.

One thing attorneys generally advise against is demanding a warrant before allowing Cal/OSHA onto your property. That angers inspectors and generally is counterproductive.

The inspector will hold an opening conference, at which you should ask why Cal/OSHA is there and what the inspector wants to see. Ask for the specific location of the inspection, specific machines and operations. (Inspections can be specific or wall-to-wall.‖) DOSH does not give warning that it is about to inspect a workplace and doesn’t make appointments, although it must visit at a reasonable time during the workday.

The purpose of an inspection is to write citations,‖ Prince asserts, cautioning employers that statements by foremen and higher-ranking officials are considered employer admissions. Every conversation is an interview, she said, advising employers to be polite, but forego chit-chat‖ about work.

Your walk-around with the Cal/OSHA inspector has pitfalls that Prince says you can avoid. For in- stance, it sends a very bad message if an official of a company is walking through the facility without personal protective equipment such as a hard hat or safety glasses, while workers are expected to wear them. You’re not showing you take safety seriously, she said.

She suggested that you consider the route you will take the inspector to the inspection site and not take the scenic route.‖ She went so far as to suggest sending a scout ahead to look for problems. Your team for the walk- around should include your safety manager, a note taker/photographer and a mechanic, who can fix mechanical deficiencies immediately, potentially forestalling a citation.

The idea is to mirror Cal/OSHA’s inspection and document everything. You want your own set of data, Prince explained. They get things wrong sometimes, they lose things, they throw things away. You need to be in a position to recall what happened in an inspection. Some employers have gone so far as to take videos of an inspection.

The DOSH team will include one or more inspectors, possibly accompanied by union representative and employees. Expect the inspector to be equipped with a camera. You can’t prohibit an inspector from taking photos, but they are not part of the public record if you are cited. If there is a proprietary issue, speak to the inspector and work out an acceptable arrangement, Prince said. She also advised employers to take the same photos that DOSH takes.

The inspector also will want to interview employees and Prince cautions against interfering in that process or butting in. Inspectors don’t like it,‖ she said. But employees have the last say about who attends an interview. If you are allowed to attend, take notes, keep your comments short, don’t become part of the interview and do not help the inspector, she said.

You may interview the employee yourself later if you are not allowed to attend the interview. Find out what the employee was asked, what he or she said, and what the inspector was interested in. Interviews like these are part of creating a record of what happened in the inspection.

DOSH also will make a document request. Prince warns against creating documents after the fact — that’s considered fraudulent behavior.

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