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Ms. Pohlid

Hospitality Law

Preparing for an OSHA Inspection

By Kathleen Pohlid, Founder and Managing Member, Pohlid, PLLC

In the past year, state and federal entities conducted over 500 inspections of hotel establishments within the United States for compliance with the Occupational Safety and Health Act. Many of those inspections were initiated by referrals from other governmental entities and from employee complaints. In some cases, establishments were issued citations for safety violations. Since employers are not provided prior notice of onsite OSHA inspections of their workplace, it is important to be prepared and to ensure establishments are in compliance with OSHA standards.

Hotel establishment employers are required under the Occupational Safety and Health Act of 1970 to provide safe and healthful working conditions for their employees and to comply with applicable safety and health standards. In 2010, OSHA added over 100 employees to its existing compliance staff with the stated purpose of increasing inspections. Since an OSHA inspection can be triggered at any time and establishments are not given advance notice of an inspection, it is important to be prepared. Here are some measures to prepare for OSHA and enhance safety and health in your workplace:

Know the Standards that Apply

Employers are required to comply with the safety and health standards promulgated by OSHA which apply to their workplace. These standards are available via OSHA's website at http://www.osha.gov/law-regs.html and include the general duty standards set forth at 29 C.F.R. 1910 and the recordkeeping and reporting standards at 29 C.F.R. 1904. (Employers with ten or fewer employees during the preceding calendar year may be partially exempt from some of the recordkeeping requirements.) The OSHA website www.osha.gov also contains valuable information for safety compliance and training programs. Establishments should conduct periodic workplace audits to identify standards that apply to their workplace and ensure they are in compliance with those standards.

Document and Implement Required Written Programs & Records

Some of the OSHA standards require employers to establish written safety programs or rules to address hazards or to maintain records relating to hazardous exposures. For example, 29 C.F.R. 1910.38(b) & 39(b) require employers with more than ten employees to have written emergency action and fire prevention plans and specifically set forth the contents that must be included within such plans.

Another example of a standard containing requirements for a written program is the blood borne pathogens standard, 29 C.F.R. 1910.1030(c)(1)(i). Under this standard, employers must establish a written exposure control plan designed to eliminate or minimize employee exposure where such exposure can be "reasonably anticipated skin, eye, mucous membrane, or parenteral contact with blood or other potentially infectious materials that may result from the performance of an employee's duties." In a letter of interpretation dated August 7, 1992, OSHA stated that occupational exposure for this standard would exist for hotel housekeeping and cleaning staff who handle linens visibly soaked with blood. Additionally, OSHA's enforcement records on its website confirm numerous serious citations have been issued under this standard within the past year to hotel establishments for failure to have a written exposure plan, failure to comply with the hepatitis B vaccine requirements, and for not providing information and training associated with the blood borne pathogens standard.

Establishments should identify the standards which require them to develop written programs and maintain records. Those documents must be readily available within the workplace as required under the standard and in the event of an OSHA inspection. The standards also set forth requirements for maintaining the confidentiality of employee health records.

Stay Up To Date on OSHA Requirements

Employers must keep informed as to newly revised and promulgated standards and ensure that they are in compliance by the enforcement dates. One such recently revised standard is the Hazard Communication Standard, 29 C.F.R. 1910.1200, which OSHA revised to align with the Globally Harmonized System of Classification and Labeling of Chemicals (GHS), Revision 3, issued in the Federal Register on March 26, 2012. GHS is an international labeling and warning system for hazardous chemicals. Cleaning and petroleum products used within establishments may be examples of such items. The GHS revisions, which became effective on May 25, 2012, require employers to train employees on the new label elements and safety data sheet format requirements by December 1, 2013.

Inspect & Identify Hazards

In addition to complying with the standards promulgated by OSHA, employers are required under the OSH Act to furnish employees with a workplace that is "free from recognized hazards that are causing or are likely to cause death or serious physical harm." This latter requirement - known as the General Duty Clause - imposes obligations upon employers to protect employees against exposure to hazards that the employer knows or should know to exist even if a standard has not been promulgated. Employers must conduct workplace inspections to identify such hazards covered under the General Duty Clause.

Additionally, employers are in violation of an OSHA standard if they "knew or should have known" of the facts forming the basis of the violation. This effectively imposes an obligation upon employers to ensure they conduct inspections of their workplace to timely identify and correct hazards.

Establish & Communicate Work Rules to Address Hazards

A robust safety program requires establishing work rules and a culture of safety and health compliance by everyone. This starts with ensuring that work rules have been implemented to address the OSHA Standards which apply to the workplace and to the potential hazards to which employees may be exposed. Those rules must be clearly communicated to employees. The best evidence of the existence of such a work rule is one that is documented and acknowledged by the employees. Written safety programs, along with a signed acknowledgement by the employee, which are made readily available in the workplace are an effective means to establish and communicate work rules.

Establishing a culture of compliance requires safety and health training. In addition to covering safety and health work rules, training should seek to make employees knowledgeable in the identification of hazards and their responsibilities for reporting and correcting hazards. Every job assignment should begin by addressing the safety aspects involved and the applicable rules and procedures for the job. Employers must also confirm employees understand those rules and procedures and invite them to address any concerns they may have.

Discipline Supervisors and Employees for Violations

A safety and health program is only effective if it is enforced. Employers may have flexibility in developing an enforcement or disciplinary policy, but should ensure that it is enforced consistently. Failure to do so hampers the effectiveness of the safety program and could also pose potential discrimination liability.

Management and employees should understand that their compliance with safety and health procedures is part of their job performance. Although employers must be careful to avoid any discrimination against employees for workplace injuries or illnesses that may occur, this does not limit their ability to evaluate employee performance with respect to adherence to safety rules.

Dedicate Resources and Management Towards Safety

OSHA inspectors will likely look at the resources the employer places toward safety. This includes training, safety programs, and whether the company has a dedicated safety and health manager. If a company is a large entity with multiple sites, simply having one safety and health manager may not be enough. Additionally, employers must ensure that safety and health equipment is routinely inspected as required by the standards and is serviceable for use. Some standards include specific requirements for inspection and replacement of personal protective equipment, as well as requiring employee training in these issues.

Prepare In Advance for An Inspection

Employers should ensure that management and staff are prepared to respond if an OSHA inspection were to occur. This includes knowing their duties and responsibilities, knowledge of the establishment's safety rules and procedures, and understanding how an OSHA inspection is conducted.

An OSHA inspector is required to present their credentials prior to beginning any inspection. Upon presentation of the credentials, the inspector will conduct an opening conference before inspecting the workplace. The decision as to whether an employer consents to an inspection or demands a warrant should be made with legal counsel. During the opening conference, OSHA will explain the purpose and scope of the inspection and to obtain background information on the employer and the work being conducted.

The employer should have a management representative present to accompany OSHA and to take notes and photographs of the matters addressed during the inspection. An OSHA investigator should never be left unattended. Employers have the right to ensure that everyone present on the jobsite, including OSHA, adheres to safety rules and policies. This includes ensuring that the location, manner and time of OSHA inspections do not interfere with safety and that appropriate personal protective equipment is utilized.

Representatives should ensure that they are accurate, truthful, and professional when communicating with OSHA. If a question is unclear, clarification should be sought. Do not make assumptions or volunteer information that is not responsive to the question.

Ensure Management Knows and Respects Employee Rights Under the Act

The OSH Act provides employees with rights to make complaints about safety and health and to cooperate with OSHA. It is illegal to retaliate against employees for exercising these rights. Employee representatives also have the right under the OSH Act to participate in the OSHA inspection, to include the opening and closing conferences. In some cases, an investigation may be triggered by an employee complaint. If so, employers should not inquire about who made the complaint. Instead, focus on the complaint. Additionally, OSHA has the authority to question employees privately during working hours at reasonable times and within reasonable limits.

Inspect & Follow-Up

An employer's obligation under OSHA does not end once it corrects a violation. Routine inspections and follow-up are necessary especially for employers who have been cited for previous violations. Prior citations make an employer more susceptible to a potential repeat or willful violation, which can result in penalties of up to $70,000 for each violation.

An establishment cannot prevent an OSHA inspection. However, the measures addressed above will enhance workplace safety and health and prepare your establishment if an OSHA inspection occurs.

Kathleen Pohlid is the founder and managing member of the law firm of Pohlid, PLLC in the Nashville, Tennessee area. She advises business clients in matters including employment, occupational safety and health, Americans with Disabilities Act (accommodation & discrimination) and regulatory compliance. Her goal is to enable clients to comply with the myriad of state and federal laws to succeed in their business, mindful of the challenges facing businesses and the importance of cost effectiveness. She has advised and represented businesses in a variety of industries including restaurants, hotels, and other entities in the tourism and hospitality industries. She has over 20 years of combined federal government and private sector experience in employment law and litigation. She holds an AV® rating from Martindale-Hubbell (highest for professional competency and ethics), a B.S. degree from the U.S. Naval Academy and a J.D. from Samford University. Ms. Pohlid can be contacted at 615-369-0810 or kpohlid@pohlid.com Please visit http://www.pohlid.com for more information. Extended Bio...

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