United States: OSHA Issues Proposed Policy Statement Concerning Employer Self Audits

OSHA issued a proposed policy statement concerning its use of voluntary employer safety and health self audits. This is a controversial topic because OSHA’s approach to the topic arguably creates a disincentive for employers to perform self audits. OSHA has attempted to address the risk that it is creating a disincentive for self audits in its proposed policy statement; however, it is not at all clear that OSHA has succeeded in this regard.

The proposed policy would apply to audits that are systematic, documented and objective reviews conducted by, or for, employers. The audit must be conducted by, or supervised by, a competent professional capable of identifying the relevant workplace hazards in order to be covered by the proposed policy. If an audit report is not covered by the policy, the protections offered by OSHA pursuant to the proposed policy will not apply.

Historically, employers have been reluctant to produce self audits to OSHA for fear that the contents of the self audit would be used against the employer in a subsequent OSHA proceeding. One approach to this problem has been to have the audit process initiated by, and to have the audit’s findings directed to, in-house counsel or the employer’s outside attorney. In this way, the attorney-client privilege provides some, albeit uncertain, protection against the disclosure of the audit. This approach at least provides the employer with an argument to assert against the disclosure of a self audit. OSHA’s proposed policy statement does not take a position with respect to an employer’s claims of attorney-client privilege.

The proposed policy statement consists of three primary points.

There are several important lessons to be learned here. First, although self audits are undeniably helpful, employers should avoid self audits unless they are committed to addressing immediately any problems identified in the audit.

Second, because self audits may well be used against employers, employers should take steps to assure that self audit reports accurately identify hazards and legal requirements and propose legitimate and feasible means of abatement. A self audit prepared by an employee or by a consultant which contains findings which do not make sense from an operations perspective will almost certainly be ignored on the plant floor. Under OSHA’s proposed policy statement, this exposes employers to significant risk. At a minimum, self audit reports should always be submitted to management in draft form. In this way, problems with the audit’s findings can be addressed before the audit report is finalized.

Third, employers should still consider utilizing in-house counsel or outside lawyers in an attempt to insulate audit reports through the attorney-client privilege. This may be especially effective with respect to draft reports, assuming that the attorney is able to review the reports with a practical eye for problems.

OSHA is inviting individuals and organizations to submit comments to it regarding the propriety of its proposed policy statement.