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...

HotelExecutive.com retains the copyright to the articles published in the Hotel Business Review. Articles cannot be republished without prior written consent by HotelExecutive.com.

Receive our daily newsletter with the latest breaking news and hotel management best practices.
Hotel Business Review on Facebook
General Search:

OCTOBER: Revenue Management: Technology and Big Data

Steve  Van

Do you have a catering assistant whose first question each morning is Did we sell out? or What was our occupancy and ADR last night? What about a front office associate who is so hungry to earn the perfect sell incentive that every time she works the 3:00 to 11:00 shift and the hotel has just a few rooms left to sell, you can count on the fact that you are going to end up with a perfect sell? If so, you may have just found your next revenue manager! READ MORE

Will Song

Airbnb is less than a decade old, but it has already begun to make waves in the travel industry. The online marketplace where individuals can list their apartments or rooms for guests to book has been able to secure a surprisingly stable foothold for itself. This has caused some hoteliers to worry that there’s a new competitor in the market with the potential to not only take away market share but drive prices down lower than ever. Let’s take a closer look at how Airbnb fits into the industry right now and then walk through the steps of the ways your hotel revenue management strategy can be adapted to the age of Airbnb. READ MORE

Brian Bolf

Revenue management tends to be one of the most challenging hospitality disciplines to define, particularly due to the constant evolution of technology. Advancements in data processing, information technology, and artificial intelligence provide our industry with expanded opportunities to reach, connect, and learn from our guests. Ultimately, the primary goals of revenue management remain constant as the ever-evolving hospitality industry matures. We must keep these fundamentals top of mind, while proactively planning for the tighter targets that lay ahead. That said, how can we embrace these innovations, operate under constricted parameters, and learn from the practices used today to achieve our same goals moving forward? READ MORE

Sanjay  Nagalia

Every year, it seems as though the hospitality industry faces more competition, new opportunities to leverage their data, and difficult organizational challenges to overcome to remain competitive in a hypercompetitive marketplace. The popularity of the sharing economy, dominating OTAs and a growing generation of often-puzzling consumers all give pause to hotels as they strategize for a more profitable future. Hotels have been feeling the heat from OTA competition for several years, causing many organizations to double down on their efforts to drive more direct bookings. Revamped loyalty programs, refined marketing campaigns and improvements to brand websites have all become primary focuses for hotel brands looking to turn the tables on their online competition. READ MORE

Coming Up In The November Online Hotel Business Review

Feature Focus
Architecture & Design: Authentic, Interactive and Immersive
If there is one dominant trend in the field of hotel architecture and design, it’s that travelers are demanding authentic, immersive and interactive experiences. This is especially true for Millennials but Baby Boomers are seeking out meaningful experiences as well. As a result, the development of immersive travel experiences - winery resorts, culinary resorts, resorts geared toward specific sports enthusiasts - will continue to expand. Another kind of immersive experience is an urban resort – one that provides all the elements you'd expect in a luxury resort, but urbanized. The urban resort hotel is designed as a staging area where the city itself provides all the amenities, and the hotel functions as a kind of sophisticated concierge service. Another trend is a re-thinking of the hotel lobby, which has evolved into an active social hub with flexible spaces for work and play, featuring cafe?s, bars, libraries, computer stations, game rooms, and more. The goal is to make this area as interactive as possible and to bring people together, making the space less of a traditional hotel lobby and more of a contemporary gathering place. This emphasis on the lobby has also had an associated effect on the size of hotel rooms – they are getting smaller. Since most activities are designed to take place in the lobby, there is less time spent in rooms which justifies their smaller design. Finally, the wellness and ecology movements are also having a major impact on design. The industry is actively adopting standards so that new structures are not only environmentally sustainable, but also promote optimum health and well- being for the travelers who will inhabit them. These are a few of the current trends in the fields of hotel architecture and design that will be examined in the November issue of the Hotel Business Review.