How to Prepare for OSHA

GRAEME RODDEN

Mention OSHA (Occupational Safety and Health Administration) to mill management in the US and often the reaction is one of dread—the fear of fines or other legal proceedings. It needn’t be this way.

During the 2016 Pulp & Paper Safety Association (PPSA) conference, noted labor/employment attorney Eric Hobbs, Ogletree Deakins, gave a comprehensive presentation on how to prepare for an OSHA inspection. But it is also a timely reminder on how mills should probably operate, inspection or not.

Hobbs said recent OSHA regulations and sub-regulations could have a significant effect on the industry. “The stakes are higher,” he noted. As well, the agency has become more aggressive. So, taking and keeping control of the scope of an inspection “is more critical than ever.”

Hobbs provided a number of tips to mill management. “Ensure your house is in as good an order as possible.” He recommended that management focus on the most frequently cited OSHA violations, such as: fall protection, lock-out/tag-out procedure, machine guarding, ladders, and hazard communication.

Ensure records are kept up to date regarding:
• Training
• Lock-out/tag-out procedures
• Lift truck refresher courses
• Confined space identification/labeling/permits
• Keeping clean rooms clean
• Laboratory and R&D facilities.
Regular walk-arounds are also a good idea. Small fixes and improvements can result—Hobbs called these “low hanging fruit.” They can cover such items as guards, normal housekeeping, PPE use, aisles/exits, electrical panels, hazcomm labeling/portable containers, signage, and ladders (i.e., ensuring that all are in good repair).
“Don’t forget,” Hobbs said, “OSHA cases can’t be won during an inspection, but they can be lost.” The keys are good preparation, training and execution.

Policy please
Mills need to have a policy in place for when a compliance officer shows up at the door, starting with the receptionist. Most importantly, Hobbs stressed, “Take control of the inspection from the get-go. Don’t allow the inmate to run the asylum. Unless the compliance officer shows up with a nt, he or she is your guest; let him/her know. By doing so, you let the compliance officer know you understand the rules and parameters of the inspection.” The compliance officer must also follow all the mill’s safety rules—for instance, those regarding PPE or clean rooms.

Common sense also plays a role. As Hobbs reminded delegates, “Be civil. Be firm but be polite.”
Is it necessary for a mill to require that OSHA have a warrant to enter the premises? Hobbs said not usually, and the process is clumsy so a mill could risk having the compliance officer enter the mill with “fire in the eyes.” He noted that there are upsides and downsides to requiring a warrant; “Decide on the policy in advance but be flexible.”

Negotiate the timing and/or scope of the inspection if necessary; e.g., if a safety officer is away from the mill. Hobbs said OSHA will generally agree to a change in time. But, he added, if the compliance officer won’t be reasonable, “Don’t be afraid to go over the compliance officer’s head.”
Get information and ask questions. Why is OSHA at the mill? “The basics of the inspection define the scope of the inspection,” Hobbs said. How long does the compliance officer intend to stay on site? Ask, “What do you want to do today: interviews, floor inspection, air sampling?” Again, Hobbs reiterated, “If the compliance officer won’t cooperate, take it to the next level.”

It is important to choose the right people to participate in the inspection. “Get someone who gets along with people,” he advised.

Accompany the officer at all times, everywhere, Hobbs stressed. For photos and video, know if and when these are taken, and copy. Any sampling should be done side-by-side with the compliance officer.

For interviews of management personnel and supervisors, management has a right to be present. For rank and file, the employee has the right to decide if a management representative is present. A company can insist that interviews be held off-site after business hours, but Hobbs advised that this is not usually a good idea.

Before any visit, it is a good idea to create and then vigorously follow a detailed OSHA inspection checklist. It should cover all the aforementioned points. “Ensure that all involved with the inspection have the checklist,” Hobbs added.

Hobbs also advised mills to ensure that the compliance officer explains everything until it is fully understood what he or she intends. “Don’t pretend to know more than you do. There are no stupid questions.”

The mill should also receive all copies of the records that OSHA is citing as the basis for its inspection. If it is a complaint, the company has the right to see it. If it is a referral, the company has a right to know who referred it to OSHA. Hobbs said a mill should demand a copy of the OSHA inspection list so it knows the scope of the inspection.

It is important for the mill to go through any OSHA standard a compliance officer cites to ensure the compliance officer knows it and can point to specific sections the mill supposedly has violated. “Challenge where appropriate,” Hobbs added. “Document everything; it can be tedious but it is necessary.”

If the mill representative is unsure on how to proceed during an inspection, he/she should notify upper management. “It’s OK to ask the compliance officer to wait.”

Keep a list of the documents/records the compliance officer wants during the inspection. It is permissible to tell him/her that the requested information will be turned over at the end of the day or next day. Hobbs advised that the information should be provided as promptly as possible. He also noted that some documents must be produced within a prescribed time under certain OSHA standards.

Know what not to do
Along with the long list of “dos” that Hobbs provided, he also had a list of things mills should not do. One critical point is that a mill should not proceed with any inspection until it has reviewed its detailed OSHA inspection plans and fully understands the scope of the inspection.

“Don’t give away too much information,” Hobbs advised. “Explain versus volunteer.”
A mill should not provide access to records or work areas not generally permitted in company policy. Nor should it identify trade secret operations or processes. It should ask the compliance officer to mark these as such so that they are segregated in the OSHA file and not subjected to disclosure under the Freedom of Information Act.

“Don’t panic,” Hobbs said. “When unsure about an answer or about whether the compliance officer should be allowed to do what he or she has proposed, tell the officer you will get back to them. If challenged, explain your actions are mandated by company policy and you do not have the authority to vary from it.

“Don’t argue a point; make it, support and let it go,” Hobbs advised. This echoed what he said previously about not being able to win your case in the inspection stage.

Again, the right people should host the compliance officer—“Don’t argue, get personal or raise your voice.” Do not let the compliance officer leave the site without him/her explaining the next step: a return visit, more interviews and/or the closing conference.

Finally, a mill should not let the compliance officer leave without sharing his or her impressions of the inspection—apparent violations, imminent issues, positive impressions. “The compliance officer does not have to answer the last point,” Hobbs explained, “but most will if a relationship has been built up over the course of the inspection.”

Should a lawyer be present during the inspection? “It depends,” Hobbs said. “Will a lawyer agitate the compliance officer unnecessarily or try to build a relationship? At a minimum, if you are the subject of an inspection, call your lawyers for advice.”

Graeme Rodden is Paper360° senior editor, North and South America. Reach him at grodden@tappi.org. This article appears in the just-released March/April issue of Paper360°, and is offered here as a preview for AoTC readers. Access the entire issue here: http://www.naylornetwork.com/ppi-nxt/

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