By Jeffrey D. Winchester
Jackson Lewis Las Vegas Office
Facing charges of ineffectiveness and an overall failure to protect Nevada workers, Nevada OSHA, has come under fire recently from both the media and the federal government. In response, Nevada OSHA has effected changes to its investigative practices that could spell trouble for unwary and unprepared employers.
As reported in the Las Vegas Review Journal earlier this summer, Nevada OSHA recently instructed its team of more than 40 investigators to find serious, willful, or repeat violations in at least half of their safety inspections. New OSHA Rule Ruffles Feathers, Las Vegas Review Journal, July 2, 2011. Until now, the average rate for such citations ran at around 22 percent. This means that investigators will be on the lookout for as many serious, repeat, and willful violations as they can, even if it means citing a violation as “serious” that in the past might have drawn a lesser classification.
New rules also allow Nevada OSHA to look back five years (as opposed to two years under the previous rules) to determine if a safety violation is a “repeat” of something for which the employer was cited before. This follows a similar change in federal OSHA enforcement policy.
Nevada employers in certain targeted industries also should be aware of federal OSHA’s National Emphasis Programs (“NEPs”), one of which focuses on compliance with OSHA’s recordkeeping requirements. State agencies can adopt and enforce these programs in state OSHA plan states, such as Nevada.
A business targeted for a document review will not know it is on the list until a compliance officer appears at the door. The compliance officer will conduct a safety inspection of the facility, and then will present a laundry list of records for review. Records subject to review in an NEP inspection typically include employee attendance sheets, workers compensation reports, disciplinary records, incident reports, safety committee meeting minutes, accident investigation records, and FMLA records, among others. If the employer has a third-party medical and/or workers compensation provider, the investigator likely will seek to obtain records from them as well. As part of the NEP investigation, the compliance officer will also identify management and non-management employees for interviews. Not all industries are covered by this NEP.
Those who have undergone recordkeeping inspections under the NEP report that inspectors often will be in and out of a facility for hours and days at a time and for weeks on end, depending on the size of the business and the ready availability of records. As with safety inspections, recordkeeping inspections can, and often do, wind up with the agency issuing citations and proposed penalties.
Now is the time for employers to review their safety policies and procedures, and to make sure that all required safety devices, personal protective equipment, other measures, and records are in place. Of key importance: review citations received within the past five years and conduct a safety assessment targeting the cited items to help identify and eliminate possible repeat violations. Make your workplace safety-compliant before OSHA arrives.