United States: OSHA´s Worksite Consultation Visit Program

Late last month, OSHA finalized revisions to its Worksite Consultation Visit Program. The regulations dealing with worksite visits have been amended and may be found at 29 CFR Part 1908. In light of these recent revisions, this Alert will provide a general overview of the Worksite Consultation Visit Program as recently amended.

For many years, OSHA has provided federal funding for an on-site consultation program administered by states. This program provides for on-site visits by a state consultant to an employer's workplace for purposes of surveying the workplace, identifying hazards, and providing recommendations to the employer. An on-site consultative visit is initiated by the request of an employer. The employer may specify a specific scope for the visit and may terminate the visit at any time. (However, termination of the visit without correction of identified hazards may result in a referral to OSHA for enforcement purposes.) Priority in providing on-site visits is accorded to smaller employers in more hazardous industries. In recent changes to the program, employee involvement in the on-site visit is now required and the state consultant will provide to employers a "List of Hazards" at the end of the on-site visit. This List of Hazards, which must be posted by the employer, will identify serious hazards present in the facility and include a recommended date by which each hazard should be corrected.

The revised regulations provide for a specific format for an on-site consultative visit. Such a visit consists of (1) an opening conference, (2) an examination of those aspects of an employer's safety and health program which relate to the scope of the visit (this is within the employer's control), (3) a workplace walkthrough, and (4) a closing conference. The on-site visit is then followed by a written report to the employer, including a "List of Hazards." The regulations provide that an employee representative, in a unionized workplace, must be afforded an opportunity to participate in all aspects of the consultation visit. In non-union workplaces, the state consultant is directed to consult with an appropriate number of employees regarding the purpose of the visit and workplace conditions. In the event the employer does not agree with specific recommendations made by the state consultant, the employer has fifteen (15) working days to request an informal discussion with the consultation manager regarding any of the findings by the consultant.

The regulations provide that, as a condition for receiving the consultation service, "the employer must agree to post the List of Hazards accompanying the consultant's written report, and to notify affected employees when hazards are corrected.... In addition, the employer must agree to make information on the corrective actions proposed by the consultant, as well as other than serious hazards identified, available at the worksite for review by affected employees or the employee representative."

Both mandated employee involvement and the List of Hazards are new developments in the on-site consultation program. They are important developments because they require the employer to advertise hazards identified by the on-site visit. While the List of Hazards will not, in and of itself, result in an OSHA enforcement inspection, it does significantly increase the chances that OSHA will receive an employee complaint if any of the hazards identified on the list are not corrected within the time period set by the state consultant or if any of those hazards reoccur in the future. Such a complaint will result in an OSHA inspection.

Finally, by agreeing to an on-site consultation visit, an employer may be required to submit periodic reports to the state consultation service, permit a follow-up visit or take some similar action to demonstrate that the necessary action has been taken in response to the identified hazards.

There is another risk to the program. The state consultant will prepare a report regarding the details of the on-site visit and the consultant's findings. While OSHA states that it will not routinely seek access to such reports for enforcement purposes, the regulations do permit OSHA to obtain the report under certain circumstances. Specifically, when an OSHA inspection results in the identification of hazards in the workplace and employee interviews or OSHA review of documents provided by the employer indicates that the hazard had been previously identified and not corrected, or that the employer had allowed the hazard to reoccur, OSHA may obtain the state consultation report from the employer. Under these circumstances, the report would likely be used by OSHA to support a charge of a willful violation of the Act.

There are some benefits to participating in the on-site visit program. For example, OSHA states that an employer should not be subjected to OSHA enforcement while working within the established time frame to correct hazards identified by the state consultant. Similarly, employee complaints resulting from the posting of hazards will not result in enforcement actions, provided that (1) the employer is meeting its obligation with respect to correcting those hazards within the set time period; and (2) the employer is providing interim protection with respect to the identified hazards prior to final corrective action.

Furthermore, participating employers with "exemplary" safety and health programs may be entitled to inspection deferrals from OSHA with respect to regularly programmed inspections. However, the deferral will not protect even these employers from OSHA inspections triggered by most employee complaints or by a fatality or catastrophe.

On-site consultation visits may well provide useful information to employers. But that information comes at a cost which must be understood by employers prior to participation in this program. The cost is highlighted by the new requirement that employers post a "List of Hazards" identified during a visit. In addition, the state consultation report is not protected from disclosure to OSHA where a hazard identified in that report has not been corrected or is permitted to reoccur. Disclosure of this report may well support a willful violation against the employer and very significant penalties.

Nevertheless, an employer (1) which is absolutely committed to making any changes recommended by the state consultant; and (2) which will take all steps necessary to assure that any identified hazards do not reoccur; and (3) which already has an exemplary safety and health program, may gain some advantage from deferring certain types of OSHA inspections. However, such an employer has the least to fear from an OSHA inspection in any case.  It is important to understand that many, but not all, of the benefits of an on-site visit by a state consultant may be obtained by an employer by conducting its own safety audit through the use of an outside, independent consultant. Moreover, by conducting a safety audit in this way, assuming that the employer takes steps to protect the audit and its results through attorney-client privilege, an employer minimizes some of the risks associated with OSHA's on-site consultation program. (Even with respect to self-audits, employers are directed to the September OSHA Alert dealing with OSHA's self-audit policy.) In any case, an employer needs to fully consider the risks and benefits of participating in a state consultation program and also consider alternatives to participation, before deciding to proceed with the state program.