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D. Conduct of the Inspection.
1. Entry of the Workplace. The CO/IH
shall be particularly careful to make a good first impression upon
entry into an establishment to be inspected. The CO/IH must display
an attitude which will convey a professional, balanced and thorough
concern for safety and health.
a. Time of Inspection.
Inspections shall be made during regular working hours of the
establishment except when special circumstances indicate
otherwise. The MOSH Supervisor shall approve entry for other
than daytime working hours.
b. Severe Weather Conditions.
(1) If severe weather conditions
encountered during an inspection cause workplace activities
to shut down, the inspection shall be continued at a later
time as soon as weather permits.
(2) If work continues during adverse
weather conditions but the CO/IH decides that the weather
interferes with the effectiveness of the inspection, he/she
shall contact the MOSH Supervisor for guidance concerning
the termination of the inspection.
(3) If work continues and the CO/IH
decides to continue the inspection in spite of bad weather,
hazardous conditions created by the weather shall be noted
since they may be the subject of later citation(s).
c. Presenting Credentials. At
the beginning of the inspection the CO/IH shall attempt to
locate the owner, operator or agent in charge at the workplace
and tactfully present credentials. On construction sites this
will most often be the representative of the general contractor.
In the following circumstances, the CO/IH shall:
(1) When the person in charge is not
present at the beginning of the inspection, identify the top
management official. This person may be the foreman, leadman,
gang boss or senior member of the crew.
(2) When neither the person in charge nor
a management official is present, contact the employer by
telephone and request the presence of the owner, operator or
management official. The inspection should not be delayed
unreasonably to await the arrival of the employer
representative. This delay shall not normally exceed one
hour.
(3) If the person in charge at the
workplace cannot be determined by (1) and (2) above, record
the extent of the inquiry in the case file and proceed with
the physical inspection. If the person in charge arrives
during the inspection, an abbreviated opening conference
shall be held, and the person shall be informed of the
status of the inspection and included in the continued walk
around.
(4) When an inspection is scheduled for a
known government facility, the CO/IH shall contact the
person in charge of such facility to inform him or her of
MOSH's presence on the facility for purposes of inspecting a
contractor or employer on site and to invite appropriate
participation. At Department of Defense sites (i.e.,
military bases) inspections of private contractors will
normally be deferred to Federal OSHA.
(5) On multi-employer sites the
superintendent, project manager or other representative of
the general or prime contractor shall be asked to identify
the subcontractors or other contractors on the site together
with the names of the individuals in charge of their
operations.
(a) The CO/IH shall then request that
these individuals be contacted and asked to assemble in
the general contractor's office or other suitable
location, together with their employee representatives,
if any. If the opening conference will cause
unreasonable disruption of the work process, the opening
conference can be conducted as the inspection
progresses.
(b) The inspection shall not be
postponed or unreasonably delayed because of the
unavailability of one or more representatives.
(c) If a federal, state or local
government contracting agency representative is on-site,
the general contractor shall be asked to contact the
representative, advising him or her of the inspection
and extending an invitation to attend the opening
conference and to participate in the inspection. (NOTE:
State and local government agencies shall be included
among the employers being inspected.)
d. Refusal to Permit Inspection.
Section 5-208(a) of the Act provides that CO/IHs may enter
without delay and at reasonable times any establishment covered
under the Act for the purpose of conducting an inspection. An
employer may insist, however, that a CO/IH obtain a warrant
prior to entering an establishment and may refuse entry without
such warrant.
NOTE: If the employer is physically
situated on federal, state or local government property a
search warrant may not be necessary (e.g., state highway
construction projects, general services building
projects). Instead, a representative of the controlling
authority shall be informed of the employer's refusal and
asked to take appropriate action to obtain cooperation and
site access.
(1) Refusal of Entry or Inspection.
The CO/IH shall not engage in argument concerning refusal.
When the employer refuses to permit entry upon presenting
proper credentials or allows entry but then refuses to
permit or hinders the inspection in some way, a tactful
attempt shall be made to obtain as much information as
possible about the establishment. The preceding section
outlines the information the CO/IH shall attempt to obtain.
(a) If the employer refuses to allow
an inspection of the establishment to proceed, the CO/IH
shall leave the premises and immediately report the
refusal to the MOSH Supervisor. The MOSH Supervisor
shall attempt to resolve the matter by telephone and
then shall notify the Assistant Commissioner/Authorized
Representative.
(b) If the employer raises no
objection to inspection of certain portions of the
workplace but objects to inspection of other portions,
the CO/IH shall inform the MOSH Supervisor of the
partial refusal. Normally, the CO/IH shall continue the
inspection, confining it only to those certain portions
to which the employer has raised no objections.
(c) In either case the CO/IH shall
advise the employer that the refusal will be reported to
the MOSH Supervisor and that the agency may choose to
take further action, which may include obtaining legal
process.
(2) Questionable Refusal. When
permission to enter or inspect is not clearly given, the CO/IH
shall make an effort to clarify the employer's intent.
(a) If there is any doubt as to
whether the employer intends to permit an inspection,
the CO/IH shall not proceed. When the employer's
intent is clarified, the CO/IH shall either conduct the
inspection or proceed as outlined in the preceding
Refusal of Entry or Inspection, section.
(b) When the employer hesitates or
leaves for a period of time so that permission is not
clearly given within one hour of initial entry, the CO/IH
shall contact the MOSH Supervisor. The CO/IH may answer
reasonable questions presented by the employer (e.g.,
the scope of the inspection, purpose, anticipated
length, etc.) but shall avoid giving any impression of
unyielding insistence or intimidation concerning the
right to inspect.
(c) If it becomes clear that the
employer is refusing permission to enter, the CO/IH
shall leave the establishment and contact the MOSH
Supervisor.
(3) Employer Interference. Where
entry has been allowed but the employer interferes with or
limits any important aspect of the inspection, the CO/IH
shall immediately contact the MOSH Supervisor for
instructions on whether or not to consider this action as a
refusal. Examples of interference are refusals to permit:
(a) the walk around,
(b) the examination of records
essential to the inspection,
(c) the taking of photographs or
videotapes,
(d) the inspection of a particular
part of the premises,
(e) private employee
interviews, and
(f) attachment of sampling devices.
(4) Administrative Subpoena.
Whenever there is a reasonable need for records, documents,
testimony and/or other supporting evidence necessary for
completing an inspection scheduled in accordance with any
current and approved inspection scheduling system or an
investigation of any matter properly falling within the
statutory authority of the agency, the Commissioner may
issue an administrative subpoena.
(a) If a person refuses to provide
requested information or evidence, the CO/IH shall
explain the reason for the request. If he/she continues
to refuse to produce the information or evidence
requested, the CO/IH shall inform the person that the
refusal will be reported to the MOSH Supervisor and that
the agency may take further legal action to compel
cooperation or production of evidence.
(b) If an administrative subpoena
appears to be indicated, the Assistant
Commissioner/Authorized Representative shall prepare a
subpoena for the Commissioner's signature. The draft
subpoena, together with written supportive
documentation, shall be forwarded as soon as practicable
to the Commissioner and Counsel to the Commissioner.
(c) The Commissioner, with the advice
of counsel, shall evaluate the documentation and decide
whether to issue a subpoena.
(d) If the Commissioner, after
consultation with counsel, believes that the subpoena
should be issued, he/she shall sign it and forward the
signed document to the Assistant Commissioner/Authorized
Representative or MOSH Supervisor.
(e) The subpoena shall normally be
served by personal service. In exceptional circumstances
service may be made by certified mail with return
receipt requested.
(f) The person served may comply with
the subpoena by immediately making the information or
evidence available to the CO/IH or by making the
information or evidence available at the time and place
specified in the subpoena.
(g) If the person served honors the
subpoena, the inspection or other investigation shall
proceed as usual.
(h) If the person served refuses to
honor the subpoena, the MOSH Supervisor shall proceed as
usual for cases involving a refusal of entry and shall
refer the matter, through the Assistant
Commissioner/Authorized Representative, to the Office of
the Attorney General.
(5) Administrative Search Warrant.
(a) Upon receipt of notification of a
total or partial refusal of entry, the MOSH Supervisor
shall inform the Assistant Commissioner/Authorized
Representative of the circumstances by telephone, with a
memorandum to follow. The Assistant
Commissioner/Authorized Representative shall consult
with the Office of the Attorney General as soon as
practicable. If it is determined that a warrant will be
sought, the Assistant Commissioner/Authorized
Representative shall proceed according to guidelines and
procedures established for warrant applications.
(b) Warrants to conduct unprogrammed
inspections are limited in scope. For the sake of
uniformity, the warrant sought when employer consent has
been withheld shall normally be limited to the specific
working conditions or practices forming the basis of the
unprogrammed inspection. A broad scope warrant, however,
may be sought when the information giving rise to the
unprogrammed inspection indicates conditions which are
pervasive in nature. A broad scope warrant also may be
sought when the establishment is listed in the current
safety or health inspection planning guide.
(c) If the warrant is to be obtained,
the MOSH Supervisor shall transmit verbally or in
writing to the Assistant Commissioner/Authorized
Representative, who shall forward to the Office of the
Attorney General, within 24 hours after the
determination is made that a warrant is necessary, the
following information:
1 Region, telephone number, and
the name of MOSH Supervisor involved.
2 Name of CO/IH attempting
inspection and inspection number, if assigned.
Identify whether inspection to be conducted included
safety items, health items or both.
3 Legal name of establishment
and address including city, state and county. Include
site location if different from mailing address.
4 Estimated number of employees
at inspection site.
5 SIC Code and high hazard
ranking for that specific industry within the State.
6 Summary of all facts leading
to the refusal of entry or limitation of inspection,
including the following:
a Date and time of entry.
b Stage of denial (entry,
opening conference, walk around, etc.).
7 Narrative of all actions
taken by the CO/IH leading up to, during and after
refusal including, as a minimum, the following
information:
a Full name and title of
the person to whom CO/IH presented credentials.
b Full name and title of person(s) who refused entry.
c Reasons stated for the
denial by person(s) refusing entry.
d Response, if any, by CO/IH
to c, above.
e Name and address of the
witnesses to denial of entry.
8 All previous inspection
information, including copies of the previous
citations.
9 Previous requests for
warrants. Attach details, if applicable.
10 As much of the current
inspection report as has been completed.
11 If a construction site
involving work under contract from any government
agency, the name of the agency, the date of the
contract, and the type of work involved.
12 Other pertinent information
such as description of the workplace; the work
process; machinery, tools and materials used; known
hazards and injuries associated with the specific
manufacturing process or industry.
13 Investigative techniques
which will be required during the proposed inspection
(e.g., personal sampling, photographs, videotapes,
examination of records, access to medical records,
etc.).
14 The specific reasons for the
selection of this establishment for the inspection
including proposed scope of the inspection and
rationale:
a Imminent Danger.
o Description of alleged
imminent danger situation.
o Date received and source of
information.
o Original allegation and
copy of typed report, including basis for
reasonable expectation of death or serious
physical harm and immediacy of danger.
o Whether all current
imminent danger processing procedures have been
strictly followed.
b Fatality/Catastrophe.
o Type of accident: fatality,
catastrophe.
o Method of accident
notification: telephone, news media (attach copy
of report), employee representative, other.
o Number of employees
involved: fatalities, injuries, number
hospitalized.
c Complaint.
o Original complaint and copy
of typed complaint.
o Reasonable grounds for
believing that a violation that threatens
physical harm or imminent danger exists,
including standards that could be violated if
the complaint is true and accurate.
o Whether all current
complaint processing procedures have been
followed.
o Additional information
gathered pertaining to complaint evaluation.
d Referral.
o Original referral and copy
of completed Referral Form, OSHA-90.
o Specific description of the
hazards observed and the potential injury or
illness that may result from the specific
hazard.
o Specific standards that may
be violated.
o Number of employees
affected by the specific hazard.
o Corroborative information
or other supporting material to demonstrate
potential existence of a hazard and employee
exposure, if known.
o Whether all current
referral processing procedures have been
followed.
o Additional information
gathered pertaining to referral evaluation.
e Programmed.
o Copies of the programmed
planning guide showing inspection dates and case
numbers of establishments inspected by numerical
rankings.
o For construction
inspections, assignment methodology and
classification.
o High-hazard safety: general
industry, construction.
o Targeted health.
o Special emphasis program:
Special Programs, Local Emphasis Program,
Migrant Housing Inspection, etc.
f Follow-up.
o Date of initial inspection.
o Details and reasons
follow-up was to be conducted.
o Copies of previous
citations on the basis of which the follow-up
was initiated.
o Copies of settlement
stipulations and final orders, if appropriate.
o Previous history of failure
to correct, if any.
(6) Administrative Warrant Process
(Compulsory Process). When a court order or warrant is
obtained requiring an employer to allow an inspection, the
CO/IH is authorized to conduct the inspection in accordance
with the provisions of the court order or warrant. All
questions from the employer concerning reasonableness of any
aspect of an inspection conducted pursuant to compulsory
process shall be referred to the MOSH Supervisor, who shall
inform the Assistant Commissioner/Authorized Representative.
(7) Action to be Taken Upon Receipt of
Compulsory Process. The inspection will normally begin
within 24 hours of receipt of compulsory process or of the
date authorized by compulsory process for the initiation of
the inspection. In addition, any warrant issued will have a
required return of service which must be identified at the
time of issuance.
(a) The CO/IH shall serve a copy of
the compulsory process on the employer and make a
separate notation as to the time, place, name and job
title of the individual served.
(b) The compulsory process may have a
space for a return of service entry by the CO/IH in
which the exact dates of the inspection made pursuant to
the compulsory process are to be entered. Upon
completion of the inspection, the CO/IH will complete
the return of service on the original compulsory
process, sign and return it to the issuing judge in
accordance with his/her original instructions.
(c) If physical resistance or
interference by the employer is anticipated, the MOSH
Supervisor shall notify the Assistant
Commissioner/Authorized Representative, and appropriate
action shall be determined.
(d) Even where the walk around is
limited by a warrant or an employer's consent to
specific conditions or practices, a subpoena for records
shall be served, if necessary. The records specified in
the subpoena shall include (as appropriate) injury and
illness records, exposure records, the written hazard
communication program, the written lockout-tagout
program, and records relevant to the employer's safety
and health management program, such as safety and health
manuals or minutes from safety meetings.
(e) The subpoena may call for
immediate production of the records with the exception
of documents relevant to the safety and health
management program, for which a period of 5 working days
normally shall be allowed.
(f) In exceptional cases, a second
warrant may be sought based on the review of records or
on "plain view" observations or other
potential violations during a limited scope walk around.
(8) Refused Entry or Interference with
a Compulsory Process. When an apparent refusal to permit
entry or inspection is encountered upon presenting the
compulsory process, the CO/IH shall specifically inquire
whether the employer is refusing to comply with the
compulsory process.
(a) If the employer refuses to comply
or if consent is not clearly given (for example, the
employer expresses an objection to the inspection), the
CO/IH shall not attempt to conduct the inspection but
shall leave the premises and contact the MOSH Supervisor
concerning further action. The CO/IH shall make
notations (including all possible witnesses to the
refusal or interference) and fully report all relevant
facts.
(b) The MOSH Supervisor shall contact
the Assistant Commissioner/Authorized Representative and
the Office of the Attorney General, either orally or in
writing, as appropriate, concerning the refusal to
comply or the interference.
(c) The Assistant
Commissioner/Authorized Representative, jointly with the
Office of the Attorney General, shall decide what
further action shall be taken.
(9) Law Enforcement Assistance. In
cases of extreme concern, a sheriff of the local
jurisdiction may accompany a CO/IH when a search warrant or
subpoena is served on an employer. This effort shall be
coordinated by the MOSH Supervisor with the Assistant
Commissioner/Authorized Representative.
e. Forcible Interference with
Conduct of Inspection or Other Official Duties.
(1) Agency Response. Whenever a
MOSH official or employee encounters forcible resistance,
opposition, interference, etc., or is assaulted or
threatened with assault while engaged in the performance of
official duties, all investigative activity shall cease.
(a) The MOSH Supervisor shall be
advised by the most expeditious means.
(b) Upon receiving a report of such
forcible interference, the MOSH Supervisor shall
immediately notify the Assistant Commissioner/Authorized
Representative.
(2) Types of Interference.
Although the employer is legally entitled to refuse
permission to conduct an inspection without a warrant, the
Act does not permit forcible conduct against the CO/IH. The
following illustrates the type of forcible conduct which
shall be immediately reported to the MOSH Supervisor:
(a) Anyone physically holding,
grabbing, pushing, shoving, or in any way limiting the
CO/IHs freedom of action or choice of action. The threat
of any action which limits freedom of action or choice
of action is included.
(b) Anyone striking, kicking, biting
or in any way inflicting or attempting to inflict
injury, pain or shock on the CO/IH. The threat of such
action is included, as is oral abuse which menaces or
causes concern for the CO/IHs personal safety.
(c) Anyone assaulting or threatening
the CO/IH with a weapon of any kind. The handling or
display of weapons in a menacing manner is included.
f. Release for Entry. The CO/IH
shall not sign any form or release or agree to any waiver. This
includes any employer forms concerned with trade secret
information.
(1) If the employer requires that a
release be signed before entering the establishment, the CO/IH
shall inform the employer of the Commissioner's authority
under Section 5-208(a) of the Act. If the employer still
insists on the signing of a release, the CO/IH shall suspend
the inspection and report the matter promptly to the MOSH
Supervisor who shall decide if the situation is to be
treated as a refusal of entry.
(2) The CO/IH may sign a visitor's
register, plant pass, or any other book or form used by the
establishment to control the entry and movement of persons
upon its premises. Such signatures shall not constitute any
form of a release or waiver of prosecution or liability
under the Act.
(3) If an employer is concerned about the
maintenance of confidentiality of trade secrets by MOSH, he
or she shall be informed of the requirements for protection
contained in Section 5-217 of the Act.
(4) In case of any doubt, the CO/IH shall
consult with the MOSH Supervisor before signing any
document.
g. Bankrupt or Out of Business.
If the establishment scheduled for inspection is found to have
ceased business and there is no known successor, the CO/IH shall
report the facts to the MOSH Supervisor. If an employer,
although adjudicated bankrupt, is continuing to operate on the
date of the scheduled inspection, the inspection shall proceed.
An employer must comply with the Act until the day the business
actually ceases to operate.
h. Strike or Labor Dispute.
Plants or establishments may be inspected regardless of the
existence of labor disputes involving work stoppages, strikes or
picketing. If the CO/IH identifies an unanticipated labor
dispute at a proposed inspection site, the MOSH Supervisor shall
be consulted before any contact is made. The MOSH Supervisor
shall consult with the Assistant Commissioner/Authorized
Representative.
(1) Programmed Inspections.
Programmed inspections may be deferred during a strike or
labor dispute, either between a recognized union and the
employer or between two unions competing for bargaining
rights in the establishment.
(2) Unprogrammed Inspections.
Unprogrammed inspections (complaints, fatalities, etc.) will
be performed during strikes or labor disputes. However, the
seriousness and reliability of any complaint shall be
thoroughly investigated by the MOSH Supervisor prior to
scheduling an inspection to ensure as far as possible that
the complaint reflects a good faith belief that a true
hazard exists and is not merely an attempt to harass the
employer or to gain a bargaining advantage for labor. If
there is a picket line at the establishment, the CO/IH shall
inform the appropriate union official of the reason for the
inspection prior to initiating the inspection.
i. No Inspection. If a
scheduled inspection cannot be conducted, the CO/IH shall
document the reasons for not conducting the inspection in a
narrative, and shall complete a OSHA-1 to be included in the
case file.
Continued
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