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4 4 Pallet C e nt ral • July -Aug u st 2 0 26 OSHA CONT. Adele Abrams, Esq., ASP, CMSP, is Senior Counsel in the Washington, DC, office of Liler Mendelson PC, where she is part of the firm's Occupational Safety and Health group and leads the national MSHA practice. Adele provides OSHA/MSHA case representation, training, and consultative services on safety and employment law. She can be reached at Aabrams@liler.com or 301-613-7498. consensus standards such as those promulgated by the National Fire Protection Association (NFPA). ey can provide tools for the employer to use on an ongoing basis for workplace self-inspection and training workers. A COMPREHENSIVE CP INSPECTION WILL INCLUDE THE FOLLOWING: 1. Appraisal of all mechanical and environmental hazards and physical work practices 2. Appraisal of the present safety and health programs, or establishment of one 3. A conference with management on findings 4. A wrien report on recommendations and agreements 5. Training and assistance with implementing recommendations e closing conference will also discuss what the employer is doing right, as well as deficiencies noted. If the consultants identify an "imminent danger" situation during the walkthrough, the employer will be required to take immediate action to protect workers. Where identified conditions represent a "serious" OSHA violation, you must come to agreement with the consultant on a reasonable plan and schedule to eliminate or control the hazard. e CP report can also be used to impute knowledge to the employer for future OSHA citations under the General Duty Clause, where a hazard exists but no specific OSHA standard applies (e.g., combustible dust or ergonomic hazards). e consultant will check back periodically to check on progress in implementing corrective actions and can agree to extensions, but employer resistance or prolonged inaction will be reported to OSHA enforcement. Some employers who successfully participate in the CP become eligible for recognition under OSHA's Safety and Health Achievement Recognition Program (SHARP) program. is is a big win for a company as SHARP participants get a deferral from programmed OSHA inspections such as those under the Site-Specific Targeting Program (based on electronically reported injury data within a high hazard NAICS category) and the National Emphasis Programs (including the current one on Lockout/Tagout and amputation prevention). e employer can also receive recognition as a model workplace. is can lead to beneficial rating in terms of insurance costs. A SHARP workplace may also have an easier time recruiting and retaining personnel. What about alternatives to the OSHA- run program? An insurance company audit may also be free, or low cost, but the insurer will not be happy if the employer rejects recommendations and refuses to fix identified violative conditions. e result may be losing coverage completely. OSHA also has been successful in subpoenaing insurance company audits for use in litigation to provide what the employer knew and when they knew it! Another option is to hire an OHS professional auditor and have them work with outside counsel to direct and privilege the audit. is does block OSHA and future litigants from obtaining the final report, but only if it is carefully managed in terms of access, and it is not shared with workers or unions. Of course, findings can be discussed with a safety committee, and any deficiencies should still be addressed. But this will be on the employer's timetable and budget and not under the lash of citation abatement or correction based on the CP consultant's imposed deadlines. ese third-party privileged audits can be costly upfront as opposed to OSHA's free program. But the savings can be enormous. In a recent audit that I reviewed as counsel at a large facility, there were over 400 items identified as potentially noncompliant! Imagine the cost if each item was cited by OSHA at the regular penalty of $16k each! Ultimately, the decision rests with the employer and will come down to risk tolerance and willingness to dedicate funds for safety and health improvements. But there ain't no free!

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