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OSHA: Access to Self-Audits Necessary for Enforcement

July 31, 2000

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The Occupational Safety and Health Administration says it has a right to see a company’s voluntary self-audit results and will exercise that right when necessary.

Last year the agency raised concerns when it issued a proposed policy stating it would not routinely request the reports at the beginning of inspections, but may ask to see the data in certain situations. It also said that the self-audits would be treated as “good faith” compliance, not willful violation, if sufficient corrective action was taken. OSHA requested public comment on the policy, although it emphasized that notice and comment rulemaking procedures were not necessary in this case.
The final policy, issued Monday, does have some minor changes -- for instance, “competent” employees and management, not just safety and health professionals, can conduct an “objective”self-audit. And the agency has promised that its inspectors “will receive instructions in order to ensure the consistent and appropriate applications of the policy.” But it held tight to the basic policy.
OSHA flatly refused requests by many employers and industry groups to declare voluntary self-audits off limits to government inspectors. There are legitimate circumstances in which voluntary self-audit data is important to enforcement of the Occupational Safety and Health Act, it argued. For example, if an inspector has already identified a hazard, the self-audit information may help determine the scope of the hazard and possible corrective action. Moreover, OSHA argued, it has the obligation to demonstrate that an employer had knowledge of a cited hazardous condition and the obligation to demonstrate that the employer was “so indifferent” to safety hazards that more significant penalties are justified.
Many employers suggested that OSHA inspectors shouldn’t issue citations for violations already identified in a self-audit if the company is in the process of correcting the problem. But OSHA said that such a policy might in fact diminish an employer’s incentive to promptly and completely eliminate workplace hazards.
OSHA also refused requests for more specific details as to what situations might trigger a request of self-audit data. Given the diversity of situations inspectors encounter, such specificity “would not be feasible,” the agency argued. Moreover, it said that inspectors must have some discretion in implementing the policy and specific examples could, in fact, be interpreted as mandates.
So here’s what employers can expect:
* OSHA will not routinely request self-audit reports, but may do so if there is basis to believe that a specific safety or health hazard exists.
* Citations will not be issued for violations discovered through self audits (even if they occurred within the 6 month inspection window ) if the employer can show that it corrected the hazardous condition and has taken steps to prevent recurrence.
* Voluntary self-audit won’t be used as evidence of willfulness if an employer is responding in good faith to a hazardous condition discovered through a self-audit.
* Voluntary self-audits will be treated as “good faith” efforts to correct and prevent hazards if in fact the employer acted promptly after the self-audit. Good faith efforts can reduce the penalty assessed for violations.
The policy was published in the July 28, 2000, Federal Register which can be accessed at www.nara.gov/fedreg.

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