a. Before holding a closing
conference, the CO/IH shall determine if any of the apparent
violations cited fall into the category of a general duty
violation, a willful violation, or involve a fatality or high
visibility issues. If so, the CO/IH shall discuss the matter
with the MOSH Supervisor and schedule a pre-closing conference
with the Office of the Assistant Commissioner.
b. At the conclusion of an inspection,
the CO/IH shall conduct a closing conference with the employer
and the employee representatives. (On multi-employer worksites,
the CO/IH shall decide whether separate closing conferences will
be held with each employer representative.) As in the case of
the opening conference, it is the employer's option whether to
hold a joint closing conference. Where the employer chooses to
have a separate conference or where it is not practical to hold
a joint closing conference, separate closing conferences shall
be held. A written summary of each conference shall be made and
attached to the case file.
c. The CO/IH shall describe the
apparent violations found during the inspection and if requested
by the employer shall indicate the applicable section(s) of the
standards which may have been violated. During the closing
conference, both the employer and the employee representatives
shall be advised of their rights to participate in any
subsequent conferences, meetings or discussions.
(1) Since the CO/IH may not have the
results of collected samples prior to the first closing
conference or when review of the case file for completeness
of documentation shows information not given to the
employer/employee representative at the first closing
conference a second closing conference shall be held. A
second closing conference shall be conducted by telephone or
in person to inform the employer and the employee
representatives whether or not the
establishment is in compliance.
(a) If the results of sampling
indicate noncompliance, apparent violations,
correction procedures, and interim methods of control
shall be discussed.
(b) Even if the employer is in
compliance, sample results which equal or exceed 50
percent of the permissible exposure limit and any
recommendations of the CO/IH on good safety and health
practices shall be discussed with the employer and the
employee representatives.
(c) If case file documentation
reveals incorrectly cited violations or additional
violations the employer and employee representative
shall be informed.
(2) When closing conferences are delayed
pending receipt of sampling data or for any other reason,
the employee representative shall also be afforded an
opportunity to participate in such delayed conferences in
accordance with established procedures.
(3) The strengths and weaknesses of the
employer's occupational safety and health program shall be
discussed at the closing conference.
(4) During the discussion of apparent
violations the CO/IH shall note any comments on the OSHA-1A
and obtain input for establishing correction dates.
Justification for all recommended correction dates in excess
of 30 days shall be recorded.
(5) The CO/IH shall advise the employee
representatives that:
(a) Under COMAR 09.12.20.13.F, if the
employer contests, the employees have a right to elect
"party status" before the hearing examiner.
(b) They will be notified by the
employer if a notice of contest is filed.
(c) They have discrimination rights
under Section 5-604 of the Act.
(d) They have a right to contest the
abatement date. Such contest must be in writing and must
be filed within 15 working days after receipt of the
citation.
d. Specific. During the closing
conference the CO/IH shall give the employer the publication
"MOSH Closing Conference Guide" which explains the
responsibilities and courses of action available to the employer
if a citation is received. The CO/IH shall then briefly discuss
the information in the booklet and answer any questions. All
matters discussed during the closing conference shall be
documented in the case file, including a note describing printed
materials distributed
(1) Citation Issued. If citations
are issued, the original shall be sent to the employer
representative at the establishment. In the case of a
nonfixed worksite, the original normally shall be sent to
the employer's headquarters and a copy sent to the worksite.
Copies shall be sent to any other employer
representatives as requested by the attending employer
representative.
(a) The employer shall be urged to
read the citation and the cover letter carefully. If the
employer has any questions regarding the citations, the
employer shall contact the Assistant
Commissioner/Authorized Representative at the address on
the citation.
(b) If the employer is a contractor
on a government facility, copies of the citation may be
sent to the government officer in charge.
(2) Citation Posting. The citation
or a copy of it must be posted at or near the place where
each violation occurred to inform the employees of hazards
to which they may be exposed. If, because of the nature of
the employer's operation, it is not practical to post the
citation at or near the place where each violation occurred,
the citation must be posted in a prominent place where it
will be readily observed by all affected employees. The
citation must remain posted for 3 working days or until the
violation is corrected, whichever is longer.
(a) If the citation is amended as a
result of an informal conference or other procedure, a
copy of the amended citation must be posted along with a
copy of the original citation.
(b) Even if contested, a copy of the
citation still must be posted.
(c) If there is an authorized
employee representative at the establishment, copies of
the original citation and any subsequent citation
amendments shall be sent to that representative as soon
as possible after receipt of these documents by the
employer.
(3) Complying with Citation and
Notification of Penalty. If the employer agrees to the
citation and the penalty:
(a) The cited condition(s) must be
abated by the date(s) set in the citation, and
(b) The penalty must be paid if one
was proposed.
(4) Informal Conference. The CO/IH
shall advise those attending the closing conference:
(a) That a request for an informal
conference with the Assistant Commissioner/Authorized
Representative is encouraged. The informal conference
provides an opportunity to:
1 Resolve disputed citations
and penalties;
2 Obtain a more complete
understanding of the specific standards which apply;
3 Discuss ways to correct the
violations;
4 Discuss questions concerning
proposed penalties;
5 Discuss problems with
proposed abatement dates;
6 Discuss problems concerning
employee safety and health practices;
7 Learn more about other MOSH
programs and services available;
8 Obtain answers to other
questions.
(b) That, if a citation is issued, an
informal conference or the request for one does not
extend the 15 working day period in which the employer,
employee or the employee representative may contest.
(c) That the employer representative(s) have the right to participate in any
informal conference or negotiations between the
Assistant Commissioner/Authorized Representative when
the employer requests the informal.
(d) That the employee or employee representative(s) have the right to participate in any
informal conference or negotiations between the
Assistant Commissioner/Authorized Representative when
the employer requests the informal.
(5) Penalties. The CO/IH shall
explain that penalties must be paid within 15 working days
after the employer receives the citation and notification of
penalty. If, however, the employer contests the citation
and/or the penalty in good faith, the penalties need not be
paid for those items contested until a final decision is
made.
(6) Contesting Citation and
Notification of Penalty. The CO/IH shall advise the
employer that the citation and the penalty may be contested
if, in good faith, the employer does NOT agree.
(a) Notice of Contest. The CO/IH
shall tell the employer that, in order to contest, the
Assistant Commissioner/Authorized Representative must be
notified in writing within 15 working days after receipt
of the citation and notification of penalty (working
days are Monday through Friday, excluding State
holidays).
1 Employer Contest. This
written notification, called a Notice of Contest, must
clearly state what is being contested: which item of
the citation, the penalty or any combination. The CO/IH
shall ask the employer to read the pamphlet "MOSH
Closing Conference Guide".
a If the employer wishes
only a later abatement date and there is a valid
reason, the Assistant Commissioner/Authorized
Representative should be petitioned for an
extension. The Assistant Commissioner/Authorized
Representative may issue a modified abatement date
in accordance with COMAR 09.12.20.20.
b If the employer contests
only the penalty or only some of the citation
items, all uncontested items must still be
abated by the dates indicated on the citation and
the corresponding penalties paid within 15 working
days of notification.
2 Employee Contest. The CO/IH shall indicate that the Act provides that
employees or their authorized representative(s) have
the right to contest in writing any or all of the
abatement dates set for a violation if they believe
the date(s) to be unreasonable.
(b) Contest Process. The CO/IH
shall explain that when a Notice of Contest is properly
filed with the Commissioner/Authorized Representative
within 15 working days of receipt of the Citation, the
case is officially in litigation.
1 Upon receipt of a Notice of
Contest, the Commissioner/Authorized Representative
will notify the Office of Administrative Hearings.
2 The Commissioner/Authorized
Representative will inform the employer of the time,
place and nature of the hearing
3 Hearings may be held in the
following locations:
a Regional offices as
designated by the Commissioner,
b County where the
violation occurred, and
c Baltimore City.
NOTE: The employer may have indicated their
preference of location at the time they submitted
their Notice of Contest to the Commissioner/
Authorized Representative. See Labor and Employment
Article, Section 5-214.
4 The administrative law judge
may uphold, modify or eliminate any item of the
citation or the penalty which the employer has
challenged.
(7) Abatement Action. The CO/IH
shall explain the following:
(a) For violations the employer does
not contest, the employer is expected to notify the
Assistant Commissioner/Authorized Representative
promptly by letter that the cited conditions have been
corrected by the abatement date set in the citation. The
notification must explain the specific action taken with
regard to each violation and the approximate date the
corrective action was completed.
(b) When the citation permits an
extended time for abatement, the employer must ensure
that employees are adequately protected during this
time. For example, the citation may require the
immediate use of personal protective equipment by
employees while engineering controls are being
installed. The employer may be requested to send
periodic progress reports on actions to correct these
violations.
(8) Petition for Modification of
Abatement Date (PMA). The CO/IH shall advise the
employer that when uncontrollable events or other
circumstances prevent the employer from meeting an abatement
date a petition may be submitted for modification of the
abatement date. Further information on petitions for
modifications of abatement dates is included in the pamphlet
"MOSH Closing Conference Guide". Details may be
obtained from the MOSH Supervisor.
(9) Follow-up Inspection. The CO/IH
shall explain that:
(a) If the employer receives a
citation, a follow-up inspection may be conducted to
verify that the employer has:
1 Posted the citation as
required.
2 Corrected the violations as
required in the citation.
3 Adequately protected the
employees during multi-step or lengthy abatement
periods.
(b) The employer also has a
continuing responsibility to comply with the Act. Any
new violations discovered during a follow-up inspection
will be cited.
(10) Failure to Abate. The CO/IH
shall explain that to achieve abatement by the date set
forth in the citation, it is important that corrective
efforts be promptly initiated. The employer shall be
reminded that, under the Act, additional penalties of up to
$7,000 per day per violation may be proposed if the employer
is found during a follow-up inspection to have failed to
abate by the time required on the OSHA-2 any violations
which have not been contested. Section 5-213(d).
(11) False Information. The CO/IH
shall explain that, a person who knowingly provides false
information relating to an application, plan, record,
report, or other document that is filed or required to be
filed or to be kept, may be subject to criminal penalties up
to $5,000 or imprisonment not exceeding six months or both.
(12) Employee Discrimination. The CO/IH shall emphasize that the Act prohibits employers from
discharging or discriminating against an employee who has
exercised any right under Section 5-604 of the Act,
including the right to make safety or health complaints or
to request a MOSH inspection. If
the investigation discloses a probable violation of employee
rights, the Commissioner/Authorized Representative may
initiate legal action on behalf of employees whose rights
have been violated.
(13) Variance.
(a) Variance provisions are
delineated in Sections 5-318 through 5-327 of the Act
and COMAR 09.12.20.17.
(b) The CO/IH shall explain that the
Act permits the employer to apply to MOSH for a
temporary variance from a newly promulgated standard if
the employer is unable to comply by the effective date
because of the unavailability of materials, equipment,
or technical personnel.
(c) The employer also may apply for a
permanent variance from a standard if the employer
believes that the facilities or methods of operation at
the establishments under consideration are at least as
safe and healthful as would be ensured by the MOSH
standard. Variance determinations are made by the
Commissioner after investigation and public hearing.
(d) Variances are not retroactive;
they have only future application.
(14) De Minimis Violations. The CO/IH shall discuss all conditions noted during the walk
around considered to be de minimis, indicating that such
conditions are subject to review by the Assistant
Commissioner/Authorized Representative in the same manner as
apparent violations but, if finally classified as de minimis,
will not be included on the citation. In addition, the CO/IH
shall explain to the employer and employee representatives
that a condition is considered to be de minimis when it has
no direct or immediate relationship to employee safety and
health or when it is apparent that the employer is complying
with the clear intent of the standard but deviates in a
minor, technical or trivial way. Employer comments shall be
noted on the OSHA-1A.
(15) Referral Inspection. The CO/IH
shall explain that when apparent violations not within the
scope of the CO/IH's expertise are observed, those apparent
violations will be referred to another CO/IH and, as a
result, additional inspections may be scheduled.
(16) Consultation Services. The CO/IH shall explain consultation services available to the
employer. These services are directed towards small Maryland
employers not having available resources to assist them in
their safety and health efforts.
(17) Other Agency Services and
Programs. The CO/IH shall briefly explain the various
other services and program descriptions to any interested
employer. Example:
Training and Education Programs. The CO/IH shall inform the
employer of any MOSH-funded training and education programs that are
available.
