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A.
Complaints.
1. General. The discussion of
complaints in this chapter is limited to a complaint received,
processed, or initiated at the Central Office or Regional Office
before an inspection rather than a complaint received by a CO/IH at
the time the establishment is inspected.
a. Agency Response. The
agency's response to a complaint will take a variety of forms,
ranging from an inspection to a response by letter, depending
upon the formality of the complaint, the nature of the hazard
and the abatement response of the employer.
b.
Complainant Identity. The
identity of formal complainants who wish to remain anonymous
will be kept confidential, pursuant to Section 5-209(e)(2) of
the MOSH Act (the Act).
2. Definitions. The following
definitions apply in this chapter:
a.
Complaint. A complaint is a
notice of a hazard or a violation of the Act believed to exist
in a workplace given by an employee or a representative of
employees, to the Commissioner or an authorized representative.
(1) To constitute a complaint the notice
must allege that a hazard exists in the workplace or that
the Act (meaning a standard or regulation or general duty
clause) is violated.
(a) If the notice is so vague and
unsubstantiated that the Compliance Manager is unable to
make a reasonable judgment as to the existence of the
alleged workplace hazard, there is no valid complaint.
In such a case, however, every reasonable attempt shall
be made to contact the person giving the notice to
obtain more specific information.
(b) If, as a result of a recent
inspection or on the basis of other objective evidence,
the Compliance Manager determines that the hazard which
is the subject of the notice is not present (e.g., it
has already been corrected), such a notice is not a
valid complaint.
(2) The workplace must be one wherein
MOSH's jurisdiction has not been preempted under Section
5-103 of the Act. Thus, if the notice involves conditions
inside a mine, any hazard or violation clearly falls within
an area wherein MOSH's jurisdiction has been preempted. In
such a circumstance the notice is not a complaint. Such
notices shall be promptly transferred to the appropriate
agency for its action.
b.
Employee. For purposes of
submitting a complaint, an employee is either of the following:
(1) A present employee of the employer
about whose establishment the complaint is being made.
(2) A present employee of another
employer if that employee is working at or near some other
employer's workplace and is exposed to hazards of that
workplace.
NOTE: Former employees
are not
considered employees for purposes of submitting a
formal complaint.* They can only submit nonformal
complaints.
*Unless the alleged hazards relate
to Haz Tox violations.
c.
Representative of Employees.
For purposes of submitting a complaint, a representative of
employees is any of the following:
(1) An authorized representative of the
employee bargaining unit, such as a certified or recognized
labor organization;
(2) An attorney acting for an employee;
(3) Any other person acting in a bona
fide representative capacity (e.g., a member of the
employee's family). In this situation, a complainant
purporting to act as a representative of an employee shall
be presumed to be so acting unless the Compliance Manager
obtains information that the complaint was not submitted
with the knowledge of or on behalf of the employee.
d. Formal Complaint.
(1) To meet the formality requirements
outlined in Section 5-209 of the Act and in COMAR
09.12.20.04, a complaint shall:
(a) Be reduced to writing either on
an MDOSH-7 Form or in a letter;
(b) Allege that an imminent danger or
a violation threatening physical harm (i.e., a hazard
covered by a standard or by the general duty clause)
exists in the workplace;
(c) Set forth with reasonable
particularity the grounds upon which it is based. This
does not mean that the complaint must specify a
particular standard; it need only specify a condition or
practice that is hazardous and, if uncommon, why it is
hazardous; and
(d) Be signed by at least one
employee or employee representative.
(2) The following are examples of
deficiencies which would result in the failure of an
apparent formal complaint to meet the requirements of the
definition:
(a) A thorough evaluation of the
complaint does not establish reasonable grounds to
believe that the alleged violation can be classified as
an imminent danger or that the alleged hazard is covered
by a standard or, in the case of an alleged serious
condition, by the general duty clause (Section 5-104 of
the Act).
(b) The complaint concerns a
workplace condition which has no direct relationship to
safety or health and does not threaten physical harm
(e.g., a violation of a recordkeeping or other
regulation or a violation of a standard that is
classified as de minimis).
(c) The complaint alleges a hazard
which violates a standard but describes no actual
workplace conditions and gives no particulars which
would allow a proper evaluation of the hazard. In such a
case the Compliance Manager shall make a reasonable
attempt to obtain such information.
e.
Nonformal Complaint. Any
complaint which does not meet any or all of the requirements for
a formal complaint is a nonformal complaint and is to be handled
in accordance with the procedures for responding to nonformal
complaints, below.
(1)
Examples. Other examples of
such complaints include the following:
(a) Oral complaints filed by
employees.
(b) Unsigned written complaints filed
by employees.
(c) Written and oral complaints filed
by nonemployees (persons or groups other than current
employees or their representatives).
(d) Complaints of hazards not covered
by a standard or by the general duty clause.
(e) Complaints of violations of
administrative regulations.
(f) Complaints of violations of
standards that are classified as de minimis.
(2)
Complaints (Referrals) from Other
Agencies. Reports from sources listed in B.3, however,
are referrals and are to be handled in accordance with the
procedures for referrals.
3. Receiving Complaints. An
incoming notice of hazards or alleged violations shall be submitted
to the Compliance Manager for review, evaluation and processing.
a. Employee Rights. When an
oral notice is received from an employee or employee
representative, that person shall be informed of the right to
file a formal complaint in writing and of the right, as a matter
of law and MOSH policy, to have the complainant's identity held
confidential, if requested, regardless of the formality of the
complaint.
b.
Workplace Inspections. The
person giving notice shall be informed that formal complaints
generally lead to workplace inspections while nonformal
complaints usually result in letters requesting employers to
undertake corrective action.
c.
Formalizing Oral Complaints.
If the person is filing a notice orally and makes a request to
formalize the complaint, the CO/IH, MOSH Supervisor or
designated professional, after confirming that the complainant
is an employee or employee representative, shall complete the
MDOSH-7 form to the extent possible prior to mailing for the
complainant's signature.
NOTE: At no time shall a blank MDOSH-7
form be mailed with a preprinted activity number. A MDOSH-7B
form shall be filled out concurrently and forwarded to MOSH
Operations. If a complainant filing orally declines to
formalize the complaint, the person taking the complaint
shall nevertheless attempt to obtain the complainant's name,
address and telephone number.
d.
Discrimination Complaints.
Employees making discrimination complaints shall be advised of
the protection afforded to them under Section 5-604 of the Act.
All complaints alleging discrimination shall be forwarded to the
Assistant Commissioner/Authorized Representative. Complaints of
discrimination also alleging safety or health hazards shall be
handled in accordance with the procedures established for
handling safety and health complaints.
(1) Safety and/or health complaints filed
by former employees who allege that they were fired for
exercising their rights under the Act are nonformal
complaints and generally will not be scheduled for
investigation.
(2) In those instances where the
Assistant Commissioner/Authorized Representative determines
that the existence or nature of the alleged hazard is likely
to be relevant to the resolution of the discrimination
complaint, an investigation may be conducted.
(3) When, as in most cases, the decision
is that no inspection is necessary, the Assistant
Commissioner/Authorized Representative shall send a letter
to the employer as outlined in "Responding to Nonformal
Complaints".
(4) Any discrimination complaint alleging
an imminent danger shall be handled in accordance with the
instructions for responding to complaints alleging imminent
danger conditions.
4. Evaluating Complaints. A careful
exercise of investigatory techniques is necessary for complete
evaluation of complaints.
a.
Classification. Immediately
upon receipt of a notice reporting a hazard or an alleged
violation, the Compliance Manager shall decide if the notice
meets the definition of a complaint. This shall be accomplished
by consultation with the appropriate safety or health
professionals as the situation may warrant.
b.
Documentation. The
Compliance Manager shall evaluate complaints as described above,
with all evaluation decisions fully documented in the
establishment case file including all information obtained
pursuant to the procedures outlined in this chapter.
c. Both Safety and Health Hazards
Alleged. When a complaint alleges both safety and health
hazards, the complaint shall be assigned to both safety and
health supervisors for investigation. They shall coordinate the
handling of the complaint. MOSH Supervisors shall maximize the
use of cross-trained CO/IHs to conduct complaint investigations
involving both safety and health hazards.
d. Response to Person Reporting.
Whenever the Compliance Manager decides that a notice which
fails to meet the definition of a complaint will not be
responded to or that a complaint submitted by an employee or
representative of employees which fails to meet all of the
requirements for a formal complaint will not be inspected, a
letter shall be sent to the person submitting the notice
(certified with return receipt) communicating that decision and
the reasons for it. The person shall be informed that he or she
has a right to appeal this decision to the Assistant
Commissioner/Authorized Representative for an informal review.
5. Information Needed for Complaint
Evaluation. The MDOSH-7 form shall normally be used to record
both formal and nonformal complaints. Most complaints will be
relatively unsophisticated and lacking in details. Thus, the
complainant will normally have to be contacted, when possible,
either for additional facts or to verify facts supplied. The
Compliance Manager must exercise professional judgment on the basis
of the information available to decide whether or not there are
reasonable grounds to believe that a violation exists and, if so,
how it should be classified.
a. Taking Complaints. When a
MOSH professional receives a complaint by letter, in person or
over the telephone, the MDOSH-7 form shall be completed and
forwarded to MOSH Operations. If the complainant wishes to
submit a formal complaint, the person taking the complaint shall
ask if the complainant is presently an employee or employee
representative. If the complaint has been received in writing
and has been signed, the complainant may be contacted by the
Compliance Manager, if necessary, for additional responses to
questions.
b.
Additional Information.
Additional information is usually needed to improve the quality
of the complaints and to aid in determining their priority.
Therefore, in completing the MDOSH-7 form, an attempt shall be
made to obtain detailed answers to the following questions:
(1) For All Complaints.
(a) Describe the unsafe or
unhealthful conditions; identify the location. What is
the nature of the exposure?
(b) What is the work being performed
in the unsafe/unhealthful area? Identify, as well as
possible, the type and condition of equipment in use,
the materials (chemicals) being used, the
process/operation involved, and the kinds of work being
done near the hazardous area.
(c) How often is work done at the
task which leads to exposure? For how long at one time?
How long has the condition existed as far as can be
determined? Has it been brought to the employer's
attention? Have any attempts been made to correct the
condition?
(d) How many shifts are there? What
time do they start? On which shift does the hazardous
condition exist?
(e) What personal protection
equipment is required by the company? Is it used by
employees? Include all PPE and describe it as
specifically as possible. Include the manufacturer's
name and any identifying numbers.
(f) How many people work in the
establishment? How many are exposed to the hazardous
conditions? What is their proximity?
(g) Is there an employee
representative in the establishment? Include the name,
address, and telephone number of the union and/or of the
employee representative(s).
(h) Identify the standard(s)
apparently violated by the conditions described by the
complainant.
(2) For Health Hazards.
(a) Has the employer administered any
tests to determine employee exposure levels to the
hazardous conditions or substance? Describe these tests.
What have been the results?
(b) What engineering controls are in
place in the area(s) in which the exposed employees
work? For instance, are there any fans or acoustical
insulation in the work area which may reduce exposure to
the hazard?
(c) What administrative or work
practice controls has the employer put into effect?
(d) Do any employees have any
symptoms which may have been caused by exposure to
hazardous substances? Have any employees ever been
treated by a doctor for a work-related disease or
condition? What was it? Have there been any
"near-miss" incidents?
(3) For Safety Hazards.
(a) Under what adverse or hazardous
conditions are employees required to work? (This should
include conditions contributing to stress and
"other" probability factors.)
(b) Have any employees been injured
as a result of this hazardous condition? Have there been
any "near-miss" incidents?
6. Responding to Complaints Alleging
Imminent Danger Conditions. Any complaint which, in the
professional opinion of the Compliance Manager constitutes an
imminent danger, as defined in Chapter VII, shall be inspected. It
shall be inspected the same day received, where possible, but not
later than the employer's next working day after receipt of the
complaint.
7. Responding to Formal Complaints.
All formal complaints meeting the requirements of Section 5-209 of
the Act and COMAR 09.12.20.04A shall be scheduled for workplace
inspections.
a.
Determination. Upon
determination by the Compliance Manager that a complaint is
formal, an inspection shall be scheduled in accordance with the
following priorities.
b.
Priorities for Responding by
Inspections to Formal Complaints. Inspections resulting from
formal complaints shall be conducted according to the following
priority.
(1) Formal complaints, other than
imminent danger, shall be given a priority based upon the
classification and the gravity of the alleged hazards.
(2) Formal complaints involving
potentially serious hazards shall be investigated within 3
working days of assignment date; those involving
other-than-serious conditions, within 10 working days of
assignment date.
8. Responding to Nonformal Complaints.
All nonformal complaints shall receive a response. The procedures
described below include responses to nonformal complaints designed
to ensure correction of hazards identified in the complaint:
a.
Responding by Letter to
Nonformal Complaints. Upon receipt and evaluation of a
nonformal complaint, the Compliance Manager, as soon as
possible, shall prepare a letter to the employer advising of the
complaint, informing of the standards allegedly violated, when
necessary, and outlining the corrective action required. This
letter shall be sent by certified mail with return receipt
requested.
(1)
Posting. The employer shall be
requested to post copies of MOSH's letter of notification
referred to in the previous subparagraph together with all
subsequent correspondence dealing with the complaint items
including the employer's response until such time as the
case is closed by the MOSH Operations Office. The employer
shall be informed that a copy of the letter and subsequent
correspondence will be sent to the complainant.
(2)
Letter to Complainant.
Concurrent with the letter to the employer, a letter to the
complainant shall be prepared explaining that the employer
has been informed of the complaint. It shall request the
complainant to notify the Compliance Manager if no
corrective action has been taken or at least initiated
within 30 calendar days (or less if so indicated in the
letter to the employer) or if any adverse or discriminatory
action or threats are made against the complainant. A copy
of the letter to the employer shall be included with the
letter to the complainant. Copies of all subsequent
correspondence shall also be sent to the complainant.
(3)
Employer Response. If a
response is received from the employer and it appears that
appropriate corrective action has been taken or that no
hazard is present, the case file shall be closed. The
complainant shall be informed of all responses received from
the employer.
b.
Responding by Inspection to
Nonformal Complaints. Where the employer fails to respond or
submits an inadequate response within the period specified in
the letter or where the complainant informs MOSH that no
corrective action has been taken or the action taken is
inadequate, the Compliance Manager shall contact the employer to
determine what further action the employer plans to take. If no
action has been taken and none is planned, the nonformal
complaint shall be activated for inspection pursuant to the
priorities for formal complaints.
(1)
Status of Corrective Action.
Where an ambiguity exists or where the employer has a
correction plan which the employer has not yet had time to
implement fully, the Compliance Manager shall communicate
further, as appropriate, with the employer and/or the
complainant to determine what interim protective steps have
been taken until the corrective action is completed and,
later, whether the hazard has been adequately corrected. On
the basis of information available, the Compliance Manager
shall decide whether an inspection is warranted.
(2)
Tenth Letter Inspections.
Where employers have sent satisfactory corrective action
letters, the Compliance Manager shall, nevertheless, select
every tenth letter for inspection to ensure that the
employer's action corresponds to that asserted in the
corrective action letter. Onlysatisfactory letters
shall be included in this procedure. Letters shall be
numbered in order of receipt by the MOSH Operations Office.
Employers shall be informed at the time that the initial
letter is sent out that they are subject to such
inspections.
9. Scope of Inspection. The scope
of complaint inspections shall be determined in accordance with the
guidelines given in this section. Any departure from these
guidelines shall be supported by adequate documentation.
a. Safety Complaint Inspections.
The inspection of a safety complaint shall normally be a
comprehensive inspection of the entire workplace (except for
low-hazard areas, such as office areas.) The following
guidelines shall be followed in determining exceptions:
(1) If the establishment is not on a
Regional General Schedule Inspection list for that year, the
procedures for a Low-Hazard Industry Complaint inspection
shall apply.
(2) If the establishment is no longer in
business, is a non-plant corporate office or headquarters,
is misclassified and the correct SIC is not on the General
Schedule Inspection list.
(3) If a substantially complete safety
inspection has been conducted within the previous calendar
year with no serious violations cited.
(4) If subject to congressional
exemptions and has ten or fewer employees.
(5) In the construction industry, if a
substantially complete inspection of the establishment has
been conducted within the last month, the procedures for
low-hazard industry complaints shall apply.
b. Health Complaint Inspections.
The inspection of a health complaint in a SIC code industry that
is listed on the Health Inspection Plan will normally be a
comprehensive inspection of all areas where a potential serious
health problem may exist. Otherwise, the procedures for a
low-hazard industry complaint shall apply.
c.
Low-Hazard Industry Complaint
Inspections. Generally, a complaint inspection in a
low-hazard industry should be limited to working conditions
identified in the complaint. If, however, the CO/IH believes
that the scope of the inspection should be expanded because of
information indicating the likelihood of serious hazards in
other portions of the plant (e.g., the CO/IH has observed them
prior to the opening conference or a review of the records shows
that an unusual number or type of injuries has occurred in one
time period, area or operation), or because of a formal
complaint alleging imminent danger or serious hazards received
while conducting the inspection, the MOSH Supervisor shall be
contacted. A decision will then be made on the basis of the
information that is available whether the inspection is to be
extended.
d. Advising Participants of
Extended Scope. Whenever an extended inspection is to be
conducted, the CO/IH shall advise the employer and the employee
representatives of the extended scope at the opening conference
or at the earliest opportunity.
10. Procedures. In general, the
procedures in Chapter III shall be followed when conducting
complaint inspections. Particular attention, however, is directed to
the following special requirements for complaint investigations:
a. Copy of the Complaint. A
copy of the complaint shall be given to the employer at the
opening conference.
(1) In the case of a multi-employer
worksite, such as a construction site, a copy of every
complaint, including those against subcontractors, shall be
provided to the general contractor as well as to the
employer against whom the complaint has been filed.
(2) A copy of every complaint against the
general contractor or against one or more of the
subcontractors shall be provided, if possible, to each
subcontractor whose employees may be exposed to the alleged
hazard.
b. Identity of Complainant.
Section 5-209(e)(2) of the Act requires that, if the complainant
so requests, names shall be deleted from the employer's copy of
the complaint. If handwritten, the complaint shall be typed, and
reworded if necessary, so that the identity of the complainant
cannot be discerned by the employer. This shall be accomplished
prior to assignment by MOSH Operations. As a matter of general
policy, names shall be deleted from all complaints unless the
complainant explicitly requests that his or her name be
revealed.
c. Walk Around Rights. In a
complaint inspection the walk around rights of an employer and
an employee representative shall be applicable. The employee
representative will be chosen according to the procedures in
Chapter III and, thus, the complainant will not necessarily be
the employee representative for walk around purposes.
d. Results of Inspection to
Complainant. After the completion of an inspection based on
a formal or a nonformal complaint (except for a tenth letter
inspection), the complainant shall be informed of the results as
follows:
(1) Each complaint item shall be
addressed with a reference to a citation item on an attached
copy of the MDOSH-2 form issued as a result of the complaint
inspection and/or with a sufficiently detailed description
of the findings and why they did not result in a citation.
(2) The complainant shall be informed, if
he/she so requests, of any subsequent modification of the
citation due to an informal conference, a settlement
agreement, or a decision of the Commissioner or a court,
together with the reasons for the modification.
e.
Notification of Delays. If
unusual delays are met in issuing a citation resulting from a
complaint inspection, the complainant and, if appropriate, the
employee representative shall be informed of such delays. A
delay of more than 90 working days following the inspection
would warrant such notification.
f. Citation Not Warranted. If
it is determined that a citation is not warranted, the
complainant shall be informed in writing of such determination
as outlined above. At the same time, the complainant shall be
told of MOSH's policy granting the right of informal review of
such determination by the Assistant Commissioner/Authorized
Representative and of the procedure for obtaining such a review,
which is the same as that set forth in COMAR 09.12.20.04C(2),
review of the decision not to inspect.
g.
Communication to Complainant.
Written communications to a complainant shall be sent to the
employee's home address unless specific instructions have been
given that such mail be sent to the place of employment.
Continued
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