Responding to OSHA/MSHA Document Requests

Transcription

1 Responding to OSHA/MSHA Document Requests Adele L. Abrams, Esq., CMSP Law Office of Adele L. Abrams PC 1 1

2 Privilege, Protection and Pitfalls Many federal and state laws contain recordkeeping, reporting and certification requirements. Access to Employee Medical and Exposure Records (29 CFR requires 30-year retention). OSHA 300 Logs OSHA Recordkeeping NEP may require more extensive record audits State plan I2P2 regulations (coming soon to OSHA/MSHA) 2 2

3 Mandatory Records Snapshot Training Records; OSHA 300 Log and MSHA Hazard Communication program materials Worksite examination reports Mobile equipment inspection reports (with some exceptions) Other equipment inspection records (e.g., hoists, cranes etc) Respiratory Protection programs Electrical test reports Analyses performed with respect to toxic substances (e.g., lead, asbestos) 3 3

4 Non-Mandatory Records Memoranda Formal reports Informal notes Self-inspection checklists 4 4

5 Audits: Mandatory vs. Non-Mandatory Mandatory audits: Examples Initial monitoring requirements of OSHA s and MSHA s health standards (e.g. silica, noise, asbestos, lead, etc.) PPE assessment Construction industry requirement providing for frequent and regular job-site inspections (See 29 CFR (b)). MSHA requirement for workplace examinations (30 CFR ) and equipment inspection ( ) Confined space entry ( ) Lockout/tagout ( ) 5 5

6 Health Audits and Union Issues Occupational health audits are generally be subject to the records access rule, which guarantees a right of access to employees (29 CFR ). If a union represents employees, employer information about workplace safety and health must be disclosed upon request to the union, as an incident to the company's duty to bargain in good faith about safety and health issues. May also be considered a miner s rights issue under Section 105(c) of Mine Act 6 6

7 OSHA Policy on Self-Audits Non-mandatory or self-audits are encouraged by OSHA - voluntary workplace evaluations undertaken by the Employer or 3 rd parties (i.e. consultants) Congress has considered free pass for companies utilizing safety/health professionals to perform audits (unlikely to ever be enacted) 7 7

8 OSHA Audit Policy OSHA: self-audits coupled with a good faith attempt to correct an existing hazard may result in: No citation if hazard has been corrected prior to an inspection May result in penalty reductions BUT... a total safe harbor on voluntary self-audit documents is unlikely to ever be adopted as a matter of agency policy or law. Nothing is ever entirely off-the-record with OSHA! 8 8

9 OSHA Policy on Audits Failure to correct hazards identified through selfaudits may result in the issuance of Willful citations when the Employer Blatantly ignores identified hazards Refuses to correct hazards likely to result in serious injury or death. OSHA reserves right to use self-audits as evidence to prosecute employer. 9 9

10 What About MSHA? Mine Safety & Health Administration (MSHA) has warrantless search authority and no statute of limitations Has limited subpoena power for public hearings only, but this would be expanded under pending Byrd Mine Safety Act Power to cite for refusing to provide documents under: Section 103(a) impeding inspection/investigation (used when operator did not force insurance company to reveal files) Section 103(h) failure to produce documents needed to verify injury and illness data 30 CFR failure to produce information related to accident, injury or illnesses which MSHA considers relevant MSHA can also seek injunction in US Dist. Ct. to compel production of documents necessary to carry out agency s activities per Sec. 108(a)(1)(E) of Mine Act 10 10

11 EPA s Incentive Policy Concerning Self- Audits EPA s Incentive Policy Gravity-based penalties may be waived if the company can demonstrate it has an effective Compliance Management Program except in the following cases: Those that may result in serious harm or risk; Those that reflect repeated noncompliance, and Those in which corporate officials condone criminal behavior

12 Recent Case Development Grinnell case (US Dist. Ct. in Illinois): OSHA can use subpoena to obtain insurance company records and audits to use against employer Solis v. Grede Wis. Subsid. (2013): US Dist Ct. held that 4 th Amendment, in combination with OSHA Audit Policy, created reasonable expectation of privacy in self-audits and could not compel PRE-CITATION via subpoena However, court opened door to obtaining and using documents against employer if OSHA could specify what hazardous conditions were at issue rather than doing a fishing expedition! Bottom line: No unfettered access during initial inspection without independent basis to believe that a specific safety/health hazard exists that warrants investigation

13 OSHA Subpoenas to Compel Production of Documents OSHA may issue subpoenas duces tecum to the following: Employer 3 rd party consultants (I.e. industrial hygienists and safety professionals) Insurance companies (2011 Grinnell decision US Dist. Ct. in Illinois) Contractors and sub-contractors 13 13

14 Subpoenas Documents sought can include: Self-inspection forms, Insurance company audits Worker s compensation reports Sampling results, Purchase orders, Consultants logs, Calibration records, Training syllabi and Training attendance records. OSHA can subpoena these documents PRIOR to the issuance of citations, and can also compel testimony from the creator/custodian of records. MSHA has limited subpoena power but can obtain these documents through their powers under Mine Act

15 Self-Evaluation Privilege Information must result from a critical self-analysis Public must have a strong interest in preserving the free flow of information Information flow would be curtailed if discovery were permitted Must be prepared with the expectation of confidentiality Beware: Most courts reject this privilege! 15 15

16 Privileges There is no Consultant-Client privilege BUT Some audits may be protected as Attorney-Client communications Attorney work products are protected where audits are directed by counsel. May include consultants hired by attorney who produce documents for attorney s use. Documents should be labeled as privileged to avoid inadvertent disclosure

17 Guidelines for Preparation of Non-Mandatory Documents Records maintained for compliance purposes should be segregated from other non-mandatory documents and personnel files. Opinions should not be included in non-privileged audit reports. Documents containing opinions should bear the caption, Privileged and Confidential, Attorney Work Product, Prepared in Anticipation of Litigation Identified hazards should not be referred to as violations. Also, never refer to OSHA/MSHA citations as violations! 17 17

18 Guidelines for Preparing Non-Mandatory Documents * Only authorized individuals employed by the employer AND approved by counsel may prepare audit documents and related reports * Other than in training records, no employees or supervisors should be identified by name if possible. * No test results from health or environmental sampling should be included in audit reports or related documents. * No third-party consultants who provide onsite consultation or sampling services should be identified by name in any audit reports or related documents

19 Incident Report Preparation Setting a written procedure will help to ensure rules are followed Key Elements for privileged reports: Names of Victim, Witnesses and Investigator Date, Time & Location of Incident (and date of investigation) Equipment involved (including if any malfunction re: product liability litigation potential) Detailed Description (w/ photos, diagrams etc.) Whether hazard was previously identified (w/any related near miss reports or other documents) Controls in use at time (LOTO, barriers, signage, PPE) Analysis of indirect causes and root causes Identification of remedial measures taken OR possible solutions 19 19

20 Pitfall Avoidance Training syllabi and employee participation in classes should always be documented. Hazards identified in documents should be promptly corrected and supported by written documentation. Non-required records should never be released without corporate or legal approval. Always require OSHA to request records in writing

21 Bottom Line! Any worksite record retention policy should state that documents are retained only for mandated time frames (which may differ according to the type of record and any applicable statutory requirements). Even if statutory limits are not used, the policy should clarify that documents must be disposed of after their useful life. This will assure compliance with legal requirements, prevent accumulation of records that could be used against the company s interest in litigation Also provides a defense to spoliation claims that documents were destroyed to thwart an agency s prosecution of citations

22 QUESTIONS????? Adele L. Abrams, Esq., CMSP