Employers anticipating an inspection by the Occupational Safety and Health Administration under a national emphasis program should prepare well in advance to protect against potential liability, an attorney who represents employer interests said July 15.

First, they should conduct an internal compliance audit under privilege to protect their work product from discovery during potential future litigation, Michael T. Taylor, an associate with Arent Fox LLP, said during a BNA audioconference on national emphasis programs. The review should focus on the particular emphasis program the employer is subject to, he said.

Second, employers should assemble and train an inspection team to manage an anticipated or potential inspection, equipping it with sufficient photography and video equipment, he said.

Third, before an inspection, employers should gather all documents relevant to the emphasis program and make copies to provide to OSHA, he said.

By taking these three steps, the company will show it takes safety and health issues seriously and OSHA compliance officers will spend less time on the inspection, Taylor said.

National emphasis programs, authorized by the Occupational Safety and Health Act of 1970, offer OSHA a way to use its finite resources in enforcing compliance with workplace health and safety standards. OSHA is able to inspect only about 1 percent to 2 percent of the approximately 7.5 million work sites in the United States.

The agency has two types of inspections: unprogrammed and programmed, Richard Fairfax, director of OSHA's enforcement programs, said during the audioconference. He said unprogrammed inspections, which follow fatalities, employee complaints, or imminent danger, are limited in scope.

Programmed inspections, on the other hand, are planned inspections aimed at industries deemed to have a high potential for injuries, illnesses, or fatalities, he said.

Among the agency's various inspection programs, OSHA has developed eight national emphasis programs that include silica, petroleum refineries, and amputations, Fairfax said. The agency plans to launch another to cover chemical plants. The agency has another 140 to 150 local emphasis programs designed and implemented at the local level, Fairfax said.

Not Welcomed by Employers.

Taylor said employers do not welcome OSHA's emphasis programs at either the local or national levels. The programs not only create a disruption in business operations but, he said, can lead to disclosure of trade secrets.

Most significantly, they can lead to “enormous abatement costs” for companies to correct alleged violations, he said. Emphasis programs also subjects companies to follow-up inspections, Taylor said.

Some industries, such as the 81 oil refineries in the United States, know they will be subject to inspections, Taylor told BNA after the conference. Since there are 28,000 chemical companies, however, and only 1,100 OSHA inspectors, individual chemical companies do not know whether they will be inspected, he said.

Three other speakers on the audioconference panel disagreed with Taylor, saying OSHA's emphasis programs are a welcome part of its enforcement.

Find, Fix Hazards.

Michael Wright, who heads the health, safety, and environment department of the United Steelworkers, agreed with Taylor that companies should conduct a comprehensive audit focused on an anticipated emphasis program audit. The should do so not to avoid liability but to “find hazards and then fix what's hazardous to save lives,” he said.

Wright said most workers welcome national emphasis programs because they “think OSHA is there to protect them,” he said.

The programs, however, do not replace the need for standards, he said, mentioning in particular the need for a standard on combustible dust. OSHA could begin with a national emphasis program based on existing standards that cover combustible dust, Wright said. The program could be a precursor to a rulemaking, he said.

After a rule is issued, another emphasis program could be conducted to see how the rule is working, he said.

Fairfax said the emphasis programs have been “very successful,” and have significantly reduced occupational hazards. When the programs are launched, OSHA gives companies sufficient compliance information and training assistance and “plenty of time” to prepare for potential inspections, he said.

John Bresland, chairman of the U.S. Chemical Safety and Hazard Investigation Board, also endorsed OSHA's emphasis programs. The board will continue to conduct “strong investigations” on those incidents that will provide the most useful safety recommendations to OSHA, he said.

By Patricia Ware

Copyright 2008, The Bureau of National Affairs, Inc.