Managing OSHA

Critical but practical advice for when OSHA comes knocking.

Managing OSHA

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OSHA Can and Will Use Employers’ Internal Safety Audit Reports as a Roadmap to Cite Them: What Employers Can Do to Protect Themselves

Since a July 28, 2000 Final Policy was published in the federal register, OSHA has maintained it will not use an employer’s own, voluntary safety and health audit as a roadmap to identify and issue citations against it. According to the Final Policy, while OSHA may in some circumstances request internal audit reports, “the Agency will not use [them] as a means of identifying hazards upon which to focus during an inspection.” Employers are thereby encouraged to proactively identify and then correct hazardous conditions in the worksite without fear of self-incrimination.

In a recent initial Review Commission decision (Sec. of Labor v. BP Products North America, Inc. et al.), however, the evidence showed that OSHA intentionally violated its Final Policy by making “extensive use” of the employer’s own audit report to identify and issue the contested citations. Despite being “troubled” by OSHA’s “blatant contravention” of its Final Policy, the Administrative Law Judge (ALJ) permitted the evidence, in effect, condoning the practice for future use.

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Occupational Safety and Health Review Commission Extends Attorney-Client Privilege to Reports Prepared by Third-Party Experts

Arent Fox LLP won a major victory for its client in Secretary of Labor v. Delek Refining, Ltd., OSHRC Docket No. 09-0844, in which the Occupational Safety and Health Review Commission extended the attorney-client privilege to certain reports prepared by third-party experts. In a case of first impression, the Commission established a three-part test for determining whether a third-party expert’s report is protected by the attorney-client privilege, providing clear guidance to employers and counsel who engage experts to assist in evaluating complex health and safety issues.

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