Issue link: http://palletcentral.uberflip.com/i/921113
palletcentral.com PalletCentral • November-December 2017 31 being used to heighten negligence findings and associated penalties! In a 2011 insurance company case, Solis v. Grinnell Mutual Reinsurance Company, a U.S. District Court in Illinois upheld OSHA's right to gain access to workers compensation correspondence and safety audits conducted by an insurance company of their insured's premises. Grinnell argued that enforcing OSHA's subpoena would have a "chilling effect" on businesses allowing their insurers to conduct safety inspections and on insurers conducting such inspections to determine risk of loss. The court rejected that argument, stating: "Assuming for the sake of argument that this is true, correcting that problem is a policy decision to be made somewhere other than in the federal courts." Following that ruling, OSHA has been fairly aggressive in using its subpoena duces tecum powers to use administrative subpoenas as a method of obtaining documents from insurance agencies, or third- party safety consultants, prior to issuing citations. Once these non- privileged safety and health audit documents are obtained by the agency, the information contained in such documents can be used to enhance the negligence findings against the employer. However, there has been some pushback. In Solis v. Grede Wisconsin Subsidiaries LLC, where OSHA sought to review company self-audit records as part of a routine inspection, the federal district court noted that there must be a balance between the employer's privacy interests and OSHA's investigatory interests. But in an accident investigation, OSHA will likely be given broader authority to obtain documents through subpoena and use them in the employer's prosecution. OSHA still has a limited "safe harbor" policy formalized for self- audits: The policy provides that 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 condition and to provide interim employee protection, but has not completely corrected the violative condition when an 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.