During the meeting with the OSHA Assistant Secretary and representatives of the Solicitors Office and the Directorate of Enforcement Programs, ORC raised several points supporting its position: first, that OSHA compliance officers were using these self-audits as “roadmaps” to conduct their inspections; and second, that this practice was discouraging employers from conducting self-audits to identify potential safety and health hazards in their workplaces. The OSHA Assistant Secretary agreed with ORC and issued a policy memorandum for OSHA Regional Administrators that limited the use of self-audits.
The policy memorandum was followed up with the issuance by the agency of a “Final Policy Concerning the Occupational Safety and Health Administration’s Treatment of Voluntary Employer Safety and Health Self-Audits.” That policy notice was published in the Federal Register on July 28, 2000 (65 FR 46498 – Docket No. W-100). Prior to issuance of this policy notice, OSHA went through a notice-and-comment period seeking input from agency stakeholders, including ORCHSE.
ORCHSE has noted, with concern, that over the last several years a number of OSHA compliance officers, when arriving at a worksite to conduct an inspection, have been providing the employer with a document request running two to four pages in length. The agency request frequently includes a request for copies of any self-audits and consultation reports. The purpose of this blog item is to remind OSHA as well as other OSHA stakeholders that the agency policy published in 2000 remains in effect. OSHA should not routinely request self-audit reports unless it has a specific need for them. One such specific need mentioned in OSHA’s policy notice would be the documentation of information related to an accident or a fatality.
The policy notice by OSHA states:
… the Agency will not routinely request self-audit reports at the initiation of an inspection, and the Agency will not use self-audit reports as a means of identifying hazards upon which to focus during an inspection. In addition, where a voluntary self-audit identifies a hazardous condition, and the employer has corrected the violative condition prior to the initiation of an inspection (or a related accident, illness, or injury that triggers the OSHA inspection) and has taken appropriate steps to prevent the recurrence of the condition, the Agency will refrain from issuing a citation, even if the violative condition existed within the six month limitations period during which OSHA is authorized to issue citations. Where a voluntary self-audit identifies a hazardous condition, and the employer promptly undertakes appropriate measures to correct the violative conditions and to provide interim employee protection, but has not completely corrected the violative condition when the OSHA inspection occurs, the Agency will treat the audit report as evidence of good faith, and not as evidence of a willful violation of the Act.
The OSHA policy notice further states:
OSHA intends to seek access to such reports only in limited situations in which the Agency has an independent basis to believe that a specific safety and health hazard warrants investigation, and has determined that such records may be relevant to identify or determine the circumstances of the hazardous condition. For example, an inspector might seek access to a self-audit documentation following a fatal or catastrophic accident when OSHA is investigating the circumstances of the accident to assess compliance and to assure that hazardous conditions are abated.
The policy notice also says that OSHA is supposed to train its compliance officers in these criteria for requesting an employer self-audit. It appears that the high turnover among OSHA compliance officers over the last decade has led to this policy notice and related requirements slipping through the cracks.