OSHA and your car care business
What's changed since last year and what you need to be doing right now.
Safety at your car care business should be your top priority. The notion of keeping your employees, your customers and your property out of harm’s way is essential and noble, but it’s also important to know that if you fail do follow a certain set of guidelines, you will be cited by the Occupational Safety & Health Administration (OSHA).
And, while a citation sounds severe, it might be comforting to know that OSHA provides all of the tools and resource you need to make sure you’re following all of the proper guidelines and regulations.
Last year, the cover story in the February issue of Professional Carwashing & Detailing covered the role of OSHA, common citations and how to improve safety measures. This cover story covers what new regulations have been implemented, and what steps you should be doing prior to, during and after an inspection.
Why OSHA is a big player in your business
Other than yourself, if you at least one employee, you are covered by OSHA. Recently, the Administration has increased the number of penalties issued. And, while a penalty is bad, the negative press you can receive can be equally harrowing for your business. If there is a severe violation, OSHA sends out a press release to the public, the news outlets and any other media forums to let the public know that the carwash was an unsafe environment for such and such a reason.
If a fatality or three or more employees are hospitalized, high emphasis hazards, non-fatalities due to potential release of highly hazardous substances, and all “egregious” violations will put you on OSHA’s Severe Violator Enforcement Program (SVEP) list, according to Foulke. “No one wants to be put on this list,” he said.
So, what can be done to avoid having an incident occur at your business? For starters, become educated and acclimated with all of the OSHA regulations.
According to Gina Houser, the safety and health coordinator for Autobell Car Wash Inc., understanding and applying the OSHA regulations to the carwash can be a daunting task. “We, like all industries, can improve on our education level when it comes to safety regulations. I can’t stress enough the use of resources such as your insurance carrier, OSHA websites, and other safety professionals to improve any safety program.”
Houser knows that since safety is such a broad topic, so it’s important to approach your safety measures with patience and to reach out to others will questions.
“There are always changes, new letters of interpretation written about an OSHA standard, and new points of interest during OSHA inspections,” said Houser. “Reach out to others, and keep those connections fresh. Also, share freely any information you learn. Educating ourselves as an industry will only help us all in the future.”
What’s the latest?
The Globally Harmonized System of Classification of Chemicals (GHS) is part of the 2012 revision to the Hazard Communication Standard. “GHS focuses on more standardization for Material Safety Data Sheets, which will be known as Safety Data Sheets. GHS also introduces pictograms that will be required on containers and bottles,” said Houser.
According to Houser, the transition from MSDS to SDS, along with the introduction of pictograms, will be complete by mid-2016. The first training deadline was December 1, 2013, and included the introduction of the SDS sections as well as pictograms. “The initial training is meant to educate employees so they are aware of the changes that are coming in the workplace. Carwashes may already be seeing the new SDS format on chemicals. More deadlines are coming. There are great education materials along with the OSHA deadline time table listed at www.osha.gov.”
The 2012 revision to the Hazard Communication Standard is the biggest change in OSHA currently, noted Houser. “I encourage operators to reach out to their insurance carrier, other operators, and the federal or state OSHA website (depending on the state) to ensure compliance. This is an area you can bet OSHA will be reviewing at every OSHA inspection this year.”
What about the ‘whistle blowers’?
According to Edwin G. Foulke Jr., co-chair of the Workplace Safety and Catastrophe Management Practice Group with Fisher & Phillips LLP, companies which celebrate zero-incident periods or offer safety-incentive programs are frowned upon by OSHA because they encourage employees to not report any incidents or potential incidents.
“A company will offer a pizza party or something similar if they have zero incidents within a certain amount of time,” Foulke said, “but OSHA is working to discourage them and instead encourage whistle blowers.”
Foulke also said that OSHA will “carefully scrutinize” a workplace where an employee who contacts OSHA is discipline. Therefore, be sure to let your employees know that you are a huge proponent of safety, and not only is it okay to contact OSHA, but it is also okay to approach you if there is a safety concern.
Assistant Secretary Dr. David Michaels, PhD, MPH,issued an updated Office of Whistleblower Protection Programs memorandum. One of the provisos, which can be found at http://www.whistleblowers.gov/ , states: Protection from discrimination means that an employer cannot retaliate by taking "adverse action" against workers, such as:
- Firing or laying off
- Denying overtime or promotion
- Denial of benefits
- Failure to hire or rehire
- Making threats
- Reassignment affecting prospects for promotion
- Reducing pay or hours
In fact, according to Foulke, the number one reason the carwash unions have been formed in California and New York is safety. “In California, workers were constantly reporting to OSHA about blood-borne pathogens. As safety measures were ignored there, the workers decided to do something about it.”
What you need to do right now
Along with knowing that a safe work environment is vital to your business, you should also take the time to make sure all measures are being taken. Foulke offers up the OSHA Inspection Checklist which outlines every set that needs to be taken for maximum safety and minimum citations.
Along with reading the checklist, visit www.osha.gov or call 800-321-OSHA, for more information. You can find the regulations at www.osha.gov/law-regs.html; your individual state regulations at www.osha.gov/dcsp/osp/index.html; and training materials at http://www.osha.gov/dte/index.html.
OSHA Inspection Checklist
A. Prior to Inspection
- Display the official OSHA poster where notices to employees are customarily posted.
- Obtain upper management commitment to workplace safety and display commitment statement.
- Conduct internal or external safety audit and hazard assessment of the facility to spot and correct apparent safety and health hazards. It is important that hazards identified are addressed or corrected in a timely manner.
- Ensure that a management official has been assigned responsibility for safety and health compliance and for dealing with employees, OSHA, and other individuals on the subject of workplace safety and health.
- Determine which OSHA standards and regulations apply to the facility and ensure that all required written programs, plans, training and recordkeeping are complete and updated on an annual basis. Insure that the facility’s personal protective equipment hazard assessment has been completed.
- Train designated management personnel on how to properly handle and respond to an OSHA inspection, as well as approaches by law enforcement officials, building or fire inspectors, and inspectors from other safety regulators.
- Determine the company policy on requiring OSHA to have a warrant prior to allowing an inspection to be conducted.
- Foster employee participation in safety and health management and instill commitment in employees to safe work practices.
- Establish a crisis management team to deal with catastrophic occurrences, fatalities, and OSHA-related publicity.Work®
- Ensure that injuries and illnesses are properly recorded and supporting documentation is available.
- Ensure that Hazard Communication Plan, MSDS’s, and related materials are available.
- Notify OSHA within eight (8) hours if a fatality occurs or more than three (3) employees are hospitalized for the same incident. Where fatality or hospitalization occurs, consult with the company’s OSHA counsel to determine what investigation should be conducted and what accident reports need to be prepared.
- Provide appropriate equipment, i.e. camera, video, monitoring, etc., for conducting OSHA inspections.
- Review previous OSHA citations and ensure abatement has been completed and hazards cited have not reoccurred.
- Ensure coordination between all employers on a multi-employer site.
B. Conducting the Inspection
1. Initial Contact and Opening Conference
- Refer the OSHA compliance officer arriving on the premises to the company’s designated safety officer.
- No employees, other than the facility manager and /or the designated management safety officer, should communicate with the OSHA compliance officer prior to the opening conference.
- The safety officer should review the compliance officer’s credentials as well as obtain his or her business card with an address and phone number to ensure that the compliance officer is on an official inspection.
- Determine from the compliance officer the purpose, scope, and the circumstances of the visit to the facility. If the inspection is based on a complaint, obtain a copy of the complaint.
- Determine if the compliance officer has a warrant to conduct the inspection. If yes, find out the scope of the warrant.
- Notify the company’s OSHA counsel. This should be done prior to the opening conference in order to receive any instructions or to raise some defense or objection.
- Notify the designated employees’ representative (if applicable) of OSHA’s presence.
Have an opening conference with the OSHA compliance officer to establish:
- the focus areas of the inspection;
- the scope and route of the walk-around inspection;
- the designated trade-secret areas or processes;
- the procedure for conducting employee interviews and producing documents;
- the schedule of interviews;
- the documents for review by OSHA;
- the procedure for requesting copies of any employee complaints; and
- the facility’s rules and procedures OSHA will be expected to follow.
- Conduct all necessary safety and health advising/training of OSHA compliance officers prior to access to restricted areas. Ensure that the OSHA compliance officer wears all necessary personal protective equipment and follow all company safety and health policies.
2. Walk-Around Inspection
- A designated safety officer or manager should stay with each OSHA compliance officer at all times during the inspection except during hourly employee interviews.
- The designated safety officer should take detailed notes, including date(s) of inspection, areas inspected, items discussed and employees interviewed.
- If compliance officer deviates from area(s) covered by complaint then company safety officer should inquire as for the reason for the deviation.
- When appropriate, photographs should be taken of areas inspected by the OSHA compliance officer as well as all items photographed by the compliance officer. Video also should be utilized, if used by the compliance officer.
- The designated safety officer should immediately have corrected any alleged violations identified by the compliance officer to the extent possible, but should not acknowledge that a citation is appropriate.
- No management or supervisory employee should give information or make statements to the compliance officer without approval from the designated safety officer or the company’s OSHA counsel.
- All work rules and safety procedures should be enforced and applicable to the compliance officer and walk-around team during the inspection.
- The compliance officer should be asked to put all requests for company information and/or documents in writing.
- The company’s OSHA counsel should review all requests for documents and information as well as all information and documents provided.
- Document all samples or monitoring test taken by the OSHA compliance officer and request copies of all sampling and monitoring results as well as all photographs and videos taken. The company should request the OSHA compliance officer to schedule sampling and monitoring at a time when the company can conduct its own sampling and monitoring.
- Request copies of all OSHA sample and monitoring reports from the compliance officer.
3. Closing Conference
- Primarily listen to the Compliance Officer’s proposal, and do not argue or debate the initial proposed findings.
- Remind the compliance officer of the scope of the inspection as stated in the opening conference.
- If directed by OSHA counsel, provide additional information and documentation relevant and supportive of the company’s position as well as any information which shows abatement of any alleged violation.
- Obtain from the OSHA compliance officer an acknowledgment of receipt of the documents provided.
- Take detailed notes on the alleged hazards identified and the problem areas indicated by the compliance officer along with the applicable standards and suggested abatement procedures.
- Provide the OSHA compliance officer with the name, title, full address, and phone and fax numbers of the person to whom all OSHA correspondence should be directed.
C. After the Inspection
- Try to obtain all sample and monitoring reports from OSHA.
- Review all areas noted by the compliance officer and make appropriate abatement.
- Provide the company’s OSHA counsel with copies of all of the documents provided to OSHA and all of the notes, photographs, videos, etc., taken during the inspection.
- The company’s OSHA counsel should make a written request to OSHA to ensure that all trade secrets and proprietary information disclosed during the inspection are kept confidential.
If facility is issued citations by OSHA, the following should be done:
- Post the citation (with penalty amounts deleted -Note: in state plan states need to check rule on posting requirements) in the area where employee notices normally are posted.
- Immediately notify the company’s OSHA counsel about the citation and send a copy of the citation to them.
- With the advice of counsel, schedule an informal conference with OSHA.
- Post Notice to Employees of informal hearing.
- Where an agreement cannot be obtained quickly, employer must file a Notice of Contest within fifteen (15) workings days of the employer’s receipt of citations. Some state plan states maintain different procedures. An employer who misses a contest deadlines cannot typically get an extension or overcome the default.
Courtesy of Edwin G. Foulke Jr., co-chair of the Workplace Safety and Catastrophe Management Practice Group with Fisher & Phillips LLP.