Issue link: http://palletcentral.uberflip.com/i/921113
32 PalletCentral • November-December 2017 palletcentral.com OSHA wants to encourage companies to be proactive in inspecting and documenting hazards in the workplace—and to take prompt remedial action to correct such hazards. It recognizes that employers would be reluctant to do so (at least the documentation part) if they thought OSHA could then compel production of the audits and use the documented hazards as the basis for writing up citations and imposing civil penalties. However, while its published policy defines the term "self-audit" to include health and safety audits conducted for an employer by a third party, OSHA has eroded the "audit privilege" by using subpoenas to compel production of third-party audits. If an audit or other documentation reveal that the employer had prior knowledge of the specific hazards and failed to implement timely corrective action, OSHA will likely be able to sustain any violations as "willful" (meaning they could be subject to the maximum civil penalty per citation). In summary, any documents requested by OSHA during an inspection or incident investigation should be reviewed carefully to determine if, in fact, they are a "shield" against citations (demonstrating compliance and training) or whether OSHA can use them as a "sword" (showing recognition of a hazard and a feasible means of abatement). Then the employer can make an educated decision on how to proceed. If a subpoena is issued by OSHA, counsel should be involved in the response as this may signal a "significant" case ($100,000 or more in anticipated penalties) or even criminal prosecution. It is critical that employers audit their document retention policies and practices to ensure that all mandatory safety and health documents are being preserved for the required period of time, in the format required. Some documents will have utility both for OSHA and HR or other purposes, and the maximum retention period should be followed before destruction of these materials. SAFETY