2. Employee Participation.
CO/IHs
shall determine as soon as possible after arrival whether the
employees at the worksite to be inspected are represented and, if
so, shall ensure that employee representatives are afforded the
opportunity to participate in all phases of the workplace
inspection. If an employer resists or interferes with employee
participation in an inspection and this cannot be resolved by the
CO/IH, the MOSH Supervisor shall be contacted.
3. Opening Conference. The CO/IH
shall inform the employer of the purpose of the inspection. The CO/IH
shall ascertain if the employees are represented by a authorized
employee group or safety committee. The CO/IH shall request
permission to include participation of an employee representative.
This will eliminate the need for a separate opening conference with
the authorized employee representative(s). The opening conference
shall be kept brief, normally not to exceed one hour. Conditions of
the worksite shall be noted upon arrival as well as any changes
which may occur during the opening conference. Pursuant to Section
5-208(b), the employer and the employee representatives shall be
informed of the opportunity to participate in all phases of the
inspection of the workplace for which they have coverage.
NOTE: An abbreviated opening conference
shall be conducted whenever the CO/IH believes that the
circumstances at the worksite dictate that the walk around
begins as promptly as possible, as occasioned by unprogrammed
inspections and construction site visits. In such cases the
opening conference shall be limited to the bare essentials;
namely, identification, purpose of the visit, and a request
for employer and employee representatives. The other elements
shall be fully addressed in the closing conference.
a. Purpose of the Inspection.
The employer shall be informed as to the reason for the
inspection as follows:
(1) Imminent Danger Situations.
When responding to an alleged imminent danger situation, the
CO/IH is required to get to the location of the alleged
hazard(s) as quickly as possible. Under these circumstances,
an expedited opening conference shall be conducted by
limiting activities to presenting credentials and explaining
the nature, scope, and purpose of the inspection.
(a) Potential safety and health
hazards that may be encountered during the inspection
shall be identified. The CO/IH shall take appropriate
precautions to ensure their personal safety.
(b) The presence of employer and
employee representatives shall be requested; however,
the inspection shall not be unreasonably delayed to
await their arrival.
(c) The employer shall be advised
that, because of the abbreviated nature of the opening
conference, there will be a more extensive discussion at
the closing conference.
(d) Unreasonable delays shall be
reported immediately to the MOSH Supervisor.
(2) Accident Investigations. The
employer shall be informed that an investigation will be
conducted and extensive interviews with witnesses will be
necessary. The purpose of an accident investigation shall be
explained, namely, to determine:
(a) The cause of the accident.
(b) Whether a violation of Maryland
Occupational Safety and Health standards related to the
accident occurred.
(c) What effect the standard
violation had on the occurrence of the accident.
(d) Whether MOSH standards
sufficiently cover the hazardous working condition which
led to the accident.
(e) If MOSH standards should be
revised to correct the hazardous situation(s) which led
to the accident.
(3) Complaint Investigations. For
a complaint investigation, the CO/IH shall provide a copy of
the complaint(s) to the employer and the employee
representatives at the beginning of the opening conference.
The name of the employee who filed the complaint shall not
be released when MOSH has been asked to maintain that
confidentiality. CO/IHs shall use caution in releasing any
information that may reveal the identity of a protected
complainant.
(4) Referral Investigations.
During the opening conference of a referral investigation,
the CO/IH shall inform the employer that the investigation
is a result of a referral (e.g., from another agency, from a
previous MOSH inspection or in response to specific evidence
of probable violations at a worksite).
(5) Follow-up Inspections. The CO/IH
shall explain that any item that had been previously cited
will be evaluated for complete abatement of the hazard.
(6) Monitoring Inspections. The
CO/IH shall review the cited items with the employer to
determine the progress of abatement and explain to the
employer the reason for the monitoring visit (e.g., PMA,
CSA, variance, and multi-step abatement). Monitoring visits
shall be scheduled at the discretion of the Assistant
Commissioner/Authorized Representative as resources permit.
(7) Programmed Inspections. The
CO/IH shall explain to the employer that 90% of programmed
inspections are selected in the "high hazard"
sectors of employment or as part of Public Sector or Special
Emphasis programs and are generally comprehensive in nature.
b. Health Inspections. During a
health inspection or, as appropriate, during a safety
inspection, the CO/IH shall conduct the opening conference in
accordance with the following additional procedures:
(1) Request process flow charts and plant
layouts relevant to the inspection. If the plant layout and
process flow charts are not available, sketch a plant layout
as necessary during the course of the inspection,
identifying the operations and the relative dimensions of
the work area. Distribution of major process equipment,
including engineering controls in use, shall also be
included on the sketch.
(2) Make a brief examination of all
workplace records pertinent to the inspection.
(a) If detailed review is necessary,
the CO/IH may wish to proceed with the walk around and
return later to examine the records more thoroughly.
(b) Some valuable insights can be
obtained from required and other records (e.g.,
symptomatology which may relate to workplace exposure,
frequency of injuries or illnesses, dermatitis, personal
protective equipment usage, monitoring data, audiometric
test results, ventilation tests, process flow charts and
a list of raw, intermediate, and final product material
which may be hazardous) to ensure a more effective
inspection.
(c) In some plants, sampling for
obvious health hazards can be initiated soon after the
opening conference. Details of the walk around can be
accomplished while collecting the samples.
c. Attendance at Opening Conference.
The CO/IH shall conduct a joint opening conference with
management and employee representatives or separate conferences
as follows:
(1) Joint Conference. The option
of holding a joint opening conference belongs to the
employer. However, whenever practicable, a joint opening
conference shall be held with the employer and the employee
representatives (if there is an employee representative as
defined in this chapter).
(2) Separate Conferences. When
separate conferences are held a written summary of each
conference shall be made and attached to the case file. In
accordance with the Maryland Public Information Act, a copy
of the written summaries is available from MOSH upon request
by the employer or the employee representative. Where it is
determined that separate conferences will unacceptably delay
observation or evaluation of the workplace safety or health
hazards, each conference shall be brief, and if appropriate,
reconvened after the inspection of the alleged hazards.
d. Scope. The CO/IH shall
outline in general terms the scope of the inspection, including
private employee interviews, physical inspection of the
workplace and records, possible referrals, discrimination
complaints, and the closing conference(s).
(1) Explain that a records review is
required on all inspections. High hazard areas may thus be
identified for inspection in this process and inspected
accordingly.
(2) Explain that previously issued
citations, if any, will also be included as part of the
inspection as a follow-up or to monitor abatement progress,
if they have become a final order of the Commissioner.
e. Handouts and Additional Items.
During the opening conference of an inspection, the CO/IH shall
provide, when available:
(1) The employer representatives with
copies of applicable laws, regulations, and informational
handouts and materials. The CO/IH shall also inform the
employer representatives of procedures for obtaining
additional copies of any materials of which the CO/IH may
not have a sufficient quantity on hand.
(2) The employee representatives with
applicable laws and regulations, and informational handouts
and materials. The CO/IH shall also inform them that
additional copies and other materials can be obtained from
the local Regional Office when the CO/IH has an insufficient
number on hand.
f. Program Objectives. The CO/IH
shall briefly indicate that MOSH shares the employer's goal of
reducing workplace injuries and illnesses, that the agency is
developing a variety of different cooperative approaches which
are designed to assist the employer in achieving this goal, and
that a more detailed discussion will take place during the
closing conference.
g. Forms Completion. The CO/IH
shall obtain available information for the OSHA-1 and other
appropriate forms. During the course of the inspection, where
time permits (i.e., during full shift sampling) the CO/IH shall
prepare and complete the appropriate and applicable MOSH forms.
h. Employees of Other Employers.
During the opening conference, the CO/IH shall determine whether
the employees of any other employers are working at the
establishment.
(1) If there are such employees the CO/IH
shall normally include them in the inspection activity. If
any questions arise as to the appropriateness of the
inspection, the CO/IH shall contact the MOSH Supervisor. If
additional inspections are conducted, both employer and
employee representatives of the other employers shall be
invited to the opening conference. The inspection shall not
be delayed to wait for these employer or employee
representatives longer than would be reasonably necessary
for either to arrive.
(2) If the site is a multi-employer site,
such as construction, the CO/IH shall determine during the
opening conference who is responsible for providing common
services available to all employees on-site (e.g.,
sanitation, first aid, handrails, etc.).
(a) It shall be pointed out to all
contractors that, apart from any arrangements that may
have been made, each employer remains responsible for
his or her own employees.
(b) If it cannot be established which
contractor is responsible for common services, the CO/IH
will determine which employer is the exposing, creating,
or enforcing employer, whenever violations are noted.
i. 7(c)(1) Consultations. The
CO/IH shall ascertain at the opening conference whether a MOSH
Consultant is presently (or scheduled to be) inspecting the
facility.
(1) On-site Visit In Progress Defined.
(a) For conditions covered by the
employer's request for consultation, an on-site visit
shall be considered in progress from the beginning of
the opening conference through the end of the closing
conference.
(b) For conditions not covered by the
employer's request, the on-site visit shall be
considered in progress only while the consultant is at
the place of employment.
(2) Unprogrammed inspections shall be
conducted even if an on-site visit is in progress.
(3) An on-site consultation visit in
progress has priority over programmed inspections.
(a) If an on-site visit is in
progress, the programmed inspection shall be deferred
until, by the definition in (1) above, there is no
on-site visit in progress.
(b) Where the period between the
consultation opening and closing conferences exceeds 30
days, the Assistant Commissioner/Authorized
Representative may decide that the inspection shall
proceed in the interest of timely assurance of worker
protection. If, after conferring with the Consultation
Project Manager, the Assistant Commissioner/Authorized
Representative agrees that the consultation is being
conducted properly and at a reasonable pace, the
inspection normally shall be deferred until after the
consultant's closing conference.
(c) In the cases described in (a) and
(b), the inspection may be carried over to the next
cycle.
(4) Where an employer has made a request
for consultation and a confirmed scheduled date for an
on-site visit has been established, the CO/IH shall consider
the facts and circumstances and, where appropriate, may
recommend to the Assistant Commissioner/Authorized
Representative that the inspection be deferred and carried
over to the next cycle.
(5) If the programmed inspection is
scheduled for a multi-employer worksite, such as a
construction site, the following guidelines apply:
(a) If the general contractor has
invited the consultant on site, the consultant shall be
considered on-site with respect to the entire worksite
and all employers.
(b) If the consultant has been
invited by one of the subcontractors or the consultant's
visit is limited in scope, the inspection of the entire
worksite shall not be deferred; the subcontractor
who has invited the consultant to visit, however, shall
be excluded from the scope of the inspection.
(6) If a follow-up inspection (including
monitoring) or an imminent danger, fatality/catastrophe,
complaint or referral investigation is to be conducted, the
inspection shall not be deferred, but its scope shall be
limited to those areas required to complete the purpose of
the investigation. The CO/IH shall also comply with the
provisions for a partial inspection, except to the extent
that those items are being addressed by the consultant. For
example, if the consultant is working with the employer's
hazard communication program, that program need not be
reviewed by the CO/IH.
(a) For imminent danger,
fatality/catastrophe or formal complaint investigations
the employer shall be advised that the consultant must
terminate the on-site visit until the compliance
inspection has been completed.
(b) For referral or follow-up
(including monitoring) inspections the employer shall be
advised that the consultant may either continue the
on-site visit in areas of the facility not covered by
the investigation or terminate the consultation visit
until the compliance inspection has been completed.
(7) If an employer refuses entry at the
time of a compliance inspection, the Assistant
Commissioner/Authorized Representative shall notify the
7(c)(1) Project Manager of the refusal and request that no
response to a consultation request received from that
employer be given until MOSH decides whether to seek a
warrant. The Assistant Commissioner/Authorized
Representative shall inform the Project Manager as soon as
possible after the resolution of the warrant issue so that a
consultation visit may be conducted if the employer requests
one.
(8) The employer has no obligation to
inform the CO/IH of a prior consultative visit. If, however,
a copy of the consultant's report is provided, the CO/IH
shall consider that report to determine if a comprehensive
inspection of the workplace is necessary, and the report
shall be taken into consideration when assessing the
employer's good faith.
(a) If it appears that the scope of
the inspection can be narrowed or that a walk around
inspection is not required, the MOSH Supervisor shall be
contacted for further guidance.
(b) If the CO/IH finds serious
hazards that were previously identified by the
consultant, which remain unabated past the employer's
correction time, a citation shall be issued for such
violations.
j. Other Opening Conference Topics.
The CO/IH shall ascertain at the beginning of the opening
conference:
(1) Legislative Limitations.
Whether or not the employer is covered by any of the
exemptions or limitations noted in any current MOSH
Instructions.
(2) Employer Name. What the
correct legal name of the employer is, what type of legal
authority it is, and whether it is a subsidiary of any other
business entity. The legal name must be confirmed by two
sources (i.e., verbal representation by employer
representative, letterhead, charter, internet, etc.).
(3) Coverage.
(a) The facts that show that the
employer is covered under the Act (i.e., that the
operations conducted at the worksite to be inspected
affect at least one employee).
(b) Is there any suggestion that the
employer is not covered by the Act (i.e., working
adjacent to navigable waters, FRA jurisdiction, federal
employees, etc.).
(4) Trade Secrets. Whether the
employer wishes to identify areas in the establishment which
contain or might reveal trade secrets. If trade secrets are
identified, the CO/IH will explain that MOSH is required by
law to preserve the confidentiality of all information which
might reveal a trade secret in accordance with Section 5-217
of the MOSH Act.
(5) Photographs and Videotapes.
Whether the employer has any objection to taking photographs
and/or videotapes as permitted under COMAR 09.12.20.03D(3).
If the employer does object, the CO/IH shall immediately
notify the MOSH Supervisor.
(6) Potential Hazards. Whether
there are any safety and health hazards to which the walk
around party may be exposed during the inspection. The CO/IH
shall ensure that all members of the inspection party are
advised as to appropriate personal protective equipment that
is required based upon this information.
4. Walk Around Representatives.
Those representatives designated to accompany the CO/IH during the
walk around are considered walk around representatives.
