Responding to OSHA/MSHA Document Requests - … to... 1 Responding to OSHA/MSHA Document Requests...

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Responding to OSHA/MSHA

Document Requests

Adele L. Abrams, Esq., CMSP

Law Office of Adele L. Abrams PC

www.safety-law.com

http://www.safety-law.com/


Privilege, Protection and Pitfalls

• Many federal and state laws contain

recordkeeping, reporting and certification

requirements.

– Access to Employee Medical and Exposure Records

(29 CFR 1910.1020 – 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)


Mandatory Records Snapshot

• Training Records;

• OSHA 300 Log and

MSHA 7000-1

• 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)


Non-Mandatory Records

• Memoranda

• Formal reports

• Informal notes

• Self-inspection checklists


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

1926.20(b)).

– MSHA requirement for workplace examinations (30

CFR 56.18002) and equipment inspection (56.14100)

– Confined space entry (1910.146)

– Lockout/tagout (1910.147)


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 1910.1020).

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


OSHA Policy on Self-Audits

• Non-mandatory or self-audits are encouraged by

OSHA - voluntary workplace evaluations

undertaken by the Employer or 3rd parties (i.e.

consultants)

• Congress has considered “free pass” for

companies utilizing safety/health professionals

to perform audits (unlikely to ever be enacted)


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!


OSHA Policy on Audits

Failure to correct hazards identified through self-

audits 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.


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 50.41 – 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


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.


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 4th

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.


OSHA Subpoenas to Compel Production

of Documents

• OSHA may issue subpoenas duces tecum to the

following:

– Employer

– 3rd party consultants (I.e. industrial hygienists and

safety professionals)

– Insurance companies (2011 Grinnell decision – US

Dist. Ct. in Illinois)

– Contractors and sub-contractors


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.


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!


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.


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”!


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 on-site consultation or sampling services should be identified by name in any audit reports or related documents.


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


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.


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.


QUESTIONS?????

Adele L. Abrams, Esq., CMSP

301-595-3520

[email protected]

mailto:[email protected]

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