5. Special Situations.
a. Preemption by Another Agency.
Section 5-103 of the Act states that the MOSH Act does not apply
to working conditions over which federal agencies exercise
statutory responsibility. The determination of preemption by
another agency is, in many cases, a highly complex matter. To
preclude as much as possible any misunderstanding with other
agencies and to avoid consequent adverse actions by employers
(or agencies) the MOSH Supervisor shall observe the following
guidelines whenever a situation arises involving a possible
question:
(1) The MOSH Supervisor shall be alert to
potential conflicts with other agencies at all times. If a
question arises, usually upon receipt of a complaint,
referral, or other inquiry, the Assistant
Commissioner/Authorized Representative shall be consulted
immediately to determine if the issue is addressed in a
Memorandum of Understanding with the agency involved.
(2) If not, the Assistant
Commissioner/Authorized Representative shall consult with
the Assistant Attorney General, or with the other agency's
local or regional office.
(3) At times an inspection may have
already begun when the jurisdictional question arises. In
such cases the CO/IH shall interrupt the inspection and
contact the MOSH Supervisor for guidance.
(4) If, following an inspection, there
remains any doubt as to MOSH coverage, the proposed citation
and penalty shall be cleared with the Assistant
Commissioner/Authorized Representative.
(5) If it is determined that MOSH does
not have jurisdiction, the case shall be referred to the
appropriate agency if there is reason to believe that
violations may exist.
b. Labor Relations Disputes.
The CO/IH shall not become involved in labor relation disputes
either between an association of employees or recognized union
and the employer or between two or more unions/associations
competing for bargaining rights. However, if there is a
recognized union, the highest-ranking official available will
designate the authorized walk around representative even though
another union may be seeking recognition.
c. Expired Collective Bargaining
Agreement. When a contract has expired, the CO/IH shall
assume that the incumbent union remains as the bargaining agent
unless that union is decertified, officially replaced, or has
abandoned bargaining agent status.
d. Employee Representatives Not
Employees of the Employer. Walk around representatives
authorized by employees will almost always be employees of the
employer. If however, in the judgment of the CO/IH, unique
circumstances make the presence of a non-employee third party
(i.e., industrial hygienist, safety engineer, or other
experienced safety or health person) necessary or helpful to the
conduct of an effective and thorough physical inspection of the
workplace, such a person may be designated by the employees as
their representative to accompany the CO/IH during the
inspection (COMAR 09.12.20.03E(5)). Questionable circumstances,
including any unreasonable delays (more than one hour), will be
referred to the MOSH Supervisor. A non-employee representative
shall be cautioned by the CO/IH not to discuss matters
pertaining to operations of other employers during the
inspection.
e. More Than One Representative.
At establishments where more than one employer is present or in
situations where groups of employees have different
representatives, it is acceptable to have a different
employer/employee representative for different phases of the
inspection. More than one employer and/or employee
representative may accompany the CO/IH throughout or during any
phase of an inspection if the CO/IH determines that such
additional representatives will aid and not interfere with the
inspection (COMAR 09.12.20.03E(2)(a)).
(1) Whenever appropriate to avoid a large
group, the CO/IH shall encourage multiple employers to agree
upon and choose a limited number of representatives for walk
around accompaniment purposes. If necessary, during the
inspection, employer representatives not on the walk around
shall be contacted to participate in particular phases of
the inspection.
(2) As an alternative, the CO/IH shall
divide a multi-employer inspection into separate phases
(e.g., excavation, steel erection, mechanical, electrical,
etc.), and encourage different employer representatives to
participate in different phases, as appropriate.
(3) The same principles shall govern the
selection of employee representatives when several are
involved.
f. Disruptive Conduct. The CO/IH
may deny the right of accompaniment to any person whose conduct
interferes with a full and orderly inspection (COMAR
09.12.20.03E(6)). If disruption or interference occurs, the CO/IH
shall use professional judgment as to whether to suspend the
walk around or take other action. The MOSH Supervisor shall be
consulted if the walk around is suspended. The employee
representative shall be advised that during the inspection
matters unrelated to the inspection shall not be discussed with
employees.
g. Trade Secrets. The CO/IH
shall ascertain from the employer if the employee representative
is authorized to enter any trade secret area(s). If not, the CO/IH
shall consult with a reasonable number of employees who work in
the area (COMAR 09.12.20.03F(3)).
h. Classified Areas. In areas
containing information classified by an agency of the U.S.
Government in the interest of national security, only persons
authorized to have access may do so. Areas so classified shall
be referred to the MOSH Supervisor.
i. Apparent Violations Observed
Prior to the Walk Around. When an apparent violation is
observed by the CO/IH prior to the walk around, it shall be
documented. All such apparent violations shall be rechecked
during the walk around and documented as appropriate. When
possible, serious violations shall be rechecked and documented
immediately at the commencement of the walk around.
j. Use of Tape Recorders.
(1) Required Conferences.
(a) The use of tape recorders during
the required conferences may inhibit the free exchange
of information, and care shall be exercised in their
use.
(b) Tape recorders
may be used
during required conferences only after the CO/IH
receives authorization from the MOSH Supervisor in
consultation with the Assistant Commissioner/Authorized
Representative.
(c) The use of tape recorders during
required conferences will be authorized only in special
circumstances.
(2) The tape recorder shall not be used
in locations where it may be hazardous. Most tape recorders
are not intrinsically safe.
(3) Tape recorders may be used by the CO/IH
to record his or her voice reflecting his or her
observations during the walk around phase of the inspection
or investigation. The CO/IH shall not use a tape recorder to
record conversations or interviews except when consent is
given by all parties.
(4) Where there is conflicting evidence
indicating that the preservation of statements is advisable
or where securing signed statements from affected employees
will delay the expeditious completion of the investigation,
tape recorders may be used.
(5) Objections to Use of Tape
Recorders.
(a) If the employer, employer
representative, affected employees, or any other
witnesses object to recording their statements during
any part of the investigation, the inspection shall be
continued without the tape recorder.
(b) The CO/IH shall not prejudice the
conduct of the inspection or formulation of proposed
penalties because of refusal to permit recording.
6. Examination of Records, Programs and
Posting Requirements.
a. Records. As appropriate, the CO/IH shall comply with the records review procedures that
follow, and document the findings in the case file.
(1) Injury and Illness Records. At
the time of the inspection, all injury and illness records
required by COMAR shall be examined. If the records have
been examined during the current calendar year by a CO or IH
of the same discipline, the CO/IH need only review the
injury and illness records since the last inspection. The
Illness and Injury log data need not be entered on the
OSHA-1, unless:
(a) The Injury and Illness log was
not available at the time of the last inspection, but
has now become available; or
(b) The calendar year has changed
since the last inspection and new injury and illness data is available.
NOTE: The CO/IH shall
not
request access to the Bureau of Labor Statistics survey
questionnaire (OSHA-200S) or even ask if the employer
has participated in the survey program.
(2) Access to Employee Exposure and
Medical Records. During all health inspections and
safety inspections when designated by the MOSH Supervisor, the
CO/IH shall determine if
applicable exposure and medical records are being maintained
in accordance with the medical surveillance recordkeeping
requirements of applicable standards or of 29 CFR 1910.1020.
CO/IH access to the employee medical records is authorized
for the limited purpose of verifying employer compliance
with those requirements.
(3) Hazard Communication. The CO/IH
shall determine if the employer is covered by the hazard
communication standard. If so, the CO/IH shall ensure that
the applicable requirements have been met, including the
preparation and submittal of a chemical information list to
the Department of the Environment, and the preparation of a
hazard communication program that has been effectively
implemented.
(4) Hazardous Energy Control (Lockout/Tagout).
Evaluations of compliance with hazardous energy control
standards shall be conducted during all general industry
inspections within the scope of the standard. The review of
records shall include special attention to injuries related
to maintenance and servicing operations.
(5) Other Records. Any other
records which fall within the scope of the inspection and
which are related directly to the purpose of the inspection
shall be examined. These may include, but are not limited
to:
(a) Equipment inspection and
maintenance certification records.
(b) Medical surveillance or
monitoring records, employee exposure records and other
medical records.
NOTE: Whenever circumstances
indicate or whenever assigned by the MOSH
Supervisor, adequately cross-trained CO/IHs
conducting a safety inspection shall also conduct a
survey of records required by various health
standards to be maintained by the employer. These
required records may be evaluated by the CO/IH at
the site or may be copied for examination by the
health staff.
(c) Safety committee minutes;
checklists; records of inspection conducted by plant
safety and health committees, insurance companies, or
consultants; if voluntarily supplied by the employer.
(d) Variance documentation.
b. Posting. The CO/IH shall
determine if posting requirements are met in accordance with
COMAR 09.12.20. These include, but are not limited to:
(1) MOSH poster informing employees of
their rights and obligations under the Act.
(2) Log and Summary of Occupational
Injuries and Illnesses posted during the month of February.
(3) Current citations.
(4) Petitions for Modification of
Abatement Date.
(5) Memorandum of Settlement.
(6) Abatement
Certification/Documentation.
c. Additional Information. It is MOSH policy that all safety and
health inspections include an entry into and survey of the workplace.
Physical inspection of the workplace offers the opportunity not only
to identify hazards, but also to verify the effectiveness of safety
and health programs.
(1) Accordingly, for all safety and
health inspections, the CO/IH shall review the employer's
overall safety and health management program and specific
programs such as those related to personal protective
equipment and respiratory protection to evaluate their
effectiveness and identify deficiencies.
(2) This review shall include a brief
survey of the workplace, focusing on any high hazard areas.
(3) A partial inspection may be expanded,
in consultation with the MOSH Supervisor, based on the
following factors:
(a) Lack of comprehensive safety and
health management program.
(b) Significant deficiencies in
critical programs such as respiratory protection
programs, hazard communication, hazardous energy
control, wire rope inspection for cranes, or fire
protection programs.
(c) Moderate to high gravity serious
violations of safety and health standards uncovered
during the plant tour.
(d) Concentrations of injuries or
illnesses in specific areas of the plant.
(4) If it is determined to expand the
inspection, the employer shall be immediately notified.
(5) Observed violations shall be
documented and cited appropriately.
