For the Record: Are Your Documents in Order?

Keeping adequate written programs and records in these four basic areas will help you protect your company against potentially significant OSHA citations.

by Jim Lastowka

You are a safety-conscious employer. You have highly motivated employees who share your goal of sending each of them home to their families at the end of their workday free from any injuries or illnesses. You conduct regular safety meetings to keep everybody focused on safety as well as safety walkthroughs to ensure that hazards are not present in the workplace. You teach your employees to think before they act, to never take a shortcut that compromises their safety and to never walk past an unsafe condition without reporting it to a supervisor for correction. Your injury and illness rates reflect all of this good work. They are so low as to rank you at the top of your industry peers. You are feeling really good about your safety commitment and performance, and deservedly so.

So, you can rest easy with the knowledge that you have nothing to fear if OSHA were to show up at your workplace to conduct an inspection, right? Wrong. Unfortunately, you could still find yourself at the wrong end of a significant OSHA enforcement.

How can this be? Well, your actual safety performance is commendable, but in your zeal to stay on top of day-to-day safety issues, you haven't put in place all of the written programs required under important OSHA standards. Nor have you paid much attention to creating and maintaining the many types of records required by OSHA that, in the minds of OSHA and its inspectors, establish to their satisfaction that you are a safety-conscious employer.

Even so, in view of your actual safety performance, you may still view this situation as a paperwork issue at most. Wrong again. You can be assured that OSHA won't share such a benign view of the deficiencies in your OSHA-required records.

Therefore, in order to fully protect your company against a potentially large number of citations and significant penalties, you need to make sure that you have in place the written programs and records that OSHA places so much importance on. The following is not intended as a listing of all OSHA-required programs and records. However, by pausing to make sure that you have addressed OSHA requirements in these four basic areas, you will have taken a big step down the path of being commended for your OSHA compliance as much as for your safety performance.

Written Programs

Many of OSHA's most important standards require that written programs be put in place. One of the most basic and familiar, of course, is the hazard communication program required by 29 CFR 1910.1200. Other important standards requiring written programs and procedures that may be applicable to your workplace include process safety management (1910.119), respiratory protection (1910.134), permit-required confined spaces (1910.146), lockout/tagout (1910.147) and bloodborne pathogens (1910.1030).

It is not enough, however, to simply issue such programs and then assume that compliance problems in these areas are behind you. A too common fault with such written programs is that, although they are initially implemented with much effort and fanfare, over time, as they become more routine, they also can become stale and lifeless. It is not so much a case of familiarity breeding contempt, but of familiarity breeding nonchalance. This is a recipe for creeping noncompliance. Because these programs address key safety areas in which a moment's inattention can lead to serious consequences, it is extremely important that the implementation of these types of programs be reviewed regularly to verify that they are effectively implemented, and that adjustments be made or additional training provided as is needed to keep them not only current, but also vibrant.

Hazard Assessments

The requirements of Section 1910.132(d) for workplace hazard assessments received a lot of very specific attention by employers in 1994 when the requirements first went into effect. Many employers took the opportunity to take a fresh look at their workplaces, conduct methodical hazard assessment surveys and make sure that appropriate personal protective equipment (PPE) needed to protect against hazards had been identified and was being properly used by employees.

Employers also took care to ensure that they met new OSHA requirements for documenting that hazard assessments had been conducted. These requirements include a written certification, specifically identified as a certification of hazard assessment, that identifies the workplace evaluated, the date of the evaluation and the person certifying that the evaluation has been performed.

Also required by 1910.132(d)(2) is training of each employee required to wear PPE, and this training must be backed up by a written certification containing the name of each employee trained, the dates of training and the subject of the training.

More than 10 years have passed since this initial burst of hazard assessment activity. As with written programs, this passage of time likely has caused some hazard assessments to become stale, if not outright outdated. Although an effective hazard assessment system should incorporate an ongoing means of ensuring that new hazards that may require different PPE and training are not unintentionally introduced into the workplace, it nevertheless is prudent to periodically reassess the situation to ensure that all hazards requiring PPE have been identified and that the most appropriate protection against the hazards is being used. When such reassessments are made, however, be sure to also update the required certifications, implement or modify PPE requirements as appropriate, and conduct any additional training required.

Training Records

Contrary to the apparent belief of many OSHA inspectors, there is no universal, mandatory requirement that all employee safety and health training be documented. Further, even some OSHA standards that specifically impose training requirements do not themselves require that the training be documented. For example, it comes as a surprise to many that the hazard communication standard's training provisions do not require any particular type of training records or even that there be any training records at all. It may be good practice to document HAZCOM training, but a failure to do so is not in and of itself an OSHA violation.

In addition to 1910.132's PPE training requirements discussed above, some of the other OSHA general industry standards that require specific documentation of employee training include the following: PSM, HAZWOPER (1910.120) permit-required confined spaces, lockout/tagout, respiratory protection, fire brigades (1910.156), fire extinguishers (1910.157), powered industrial trucks (1910.178), welding, cutting and brazing (1910.252-254), telecommunications (1910.268), asbestos (1910.1001), the 13 carcinogens standard (1910.1003) and substance specific standards such as lead (1910.1025), cadmium (1910.1027), benzene (1910.1028) and many others listed in Part 1910, Subpart Z.

You should review your training program and the types of training records that are being generated, and compare them to OSHA's training and records requirements. You need to make sure that you are documenting training in those areas for which OSHA requires documentation. Also, make sure that in areas where OSHA has identified specific information that needs to be included in training records, the records being generated under your program are capturing all of the required information. The effort in setting up the training records system to capture at the outset all OSHA-required information in an easily accessible training record is far less than what will be required if you are forced to try to round up information from multiple sources if your training program and related training records are challenged by OSHA during an inspection.

Certifications

In addition to requiring that training be given and training records be kept, some OSHA standards require employers to make "certifications" regarding such training. In addition to training certifications, other standards require employers to certify that they have completed certain other actions. For example, as mentioned above, the PPE standard requires that in addition to certifying that required training has been provided, the employer also must certify that hazard assessments have been completed. The PSM standard requires annual employer certifications that operating procedures are current and accurate. OSHA's injury and illness recordkeeping requirements provide that a "company executive must certify that he or she has examined the OSHA 300 Log and ... reasonably believes ... that the annual summary is correct and complete."

Apart from the obvious fact that failure to meet training or other certification requirements imposed in an OSHA standard will result in citations and penalties, there is another serious risk presented by the requirements in OSHA standards and regulations for certifications. Under Section 17(g) of the OSH Act and the federal criminal code provisions at 18 U.S.C. 1001, it is a crime to knowingly make a false certification or statement in any document required under the act.

Regardless of whether you believe that criminal prosecutions are brought often enough with respect to workplace fatalities or serious injuries or illnesses, it is an undeniable fact that a substantial number of the criminal prosecutions that have been brought against companies and individuals involve situations in which false records or certifications have been submitted to government officials. Therefore, employers and each of their representatives responsible for completing OSHA-required certifications must be aware of the acute importance of such certifications and the need to ensure that whenever they are made, they are accurate.

These four types of records are not the only important records OSHA requires. For example, Part 1904's injury and illness recordkeeping requirements and 1910.1020's requirements for maintenance of, and access to, employee exposure and medical records also are extremely important, but deserve separate consideration and treatment. For now, taking a fresh look at how your workplace fares in the four areas discussed above should return you dividends, both now and in the future.

Jim Lastowka is a partner in McDermott Will & Emery LLP's OSHA/Catastrophe Response Practice Group, and is based in the firm's Washington office. His safety and health practice spans 30 years, both in senior positions in the government and representing employers in investigations involving OSHA, MSHA, NIOSH, CSB, ATF and EPA. He can be reached at (202) 756-8245 or at [email protected]

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