The Occupational Safety and Health Administration (OSHA) has announced a new National Emphasis Program (NEP) aimed at reducing or eliminating hazards during warehousing and distribution center operations. NEP programs are implemented by OSHA when the agency feels the seriousness and prevalence of hazards associated with certain types of operations warrant additional federal oversight.

OSHA will be using data compiled from 2017-2021 averaged incident rates of nonfatal occupational injuries and illnesses by industry[i] – including farm product warehousing and storage – to select specific businesses/sites for inspection. Inspections will focus on workplace hazards common to these specific industries including:

• Powered industrial vehicles operations
• Material handling/storage
• Walking-working surfaces
• Means of egress; and
• Fire protection.

Heat and ergonomic hazards will also be considered and documented during each inspection and a health inspection opened if the presence of heat and/or ergonomic hazards is revealed.

Businesses subjected to an inspection within the last three years related to the hazards addressed by the current NEP will be exempt from additional inspection. Businesses should keep in mind that NEP-related inspections may be combined with other OSHA sanctioned inspections.

State Plans are also required to participate in NEPs but have the option of adopting (within six months) an identical or different emphasis program that is at least as effective as the current OSHA directive. State plans have sixty days from the NEP effective date to notify OSHA of their intent to adopt the NEP or offer notice of an existing (or impending) equally effective program.

What to Do When OSHA Comes Knocking

When faced with an unannounced OSHA, Cal/OSHAor ADOSH workplace inspection, employers may – without risk of penalty:

• Ask for and receive proper identification from an inspector prior to a workplace inspection.
• Refuse to allow an inspector access without a warrant.
• Contest a warrant.
• Limit the scope of an inspection to what is contained in the warrant.
• Accompany the inspector during the inspection.
• Have an opening and closing conference.
• Contest a fine.

But should an employer exercise these rights? Here are a few things to consider:

Demand = Delay. Inspections are premised on the (low threshold) reasonable belief that a violation will be discovered. A standard that is easily met if a workplace injury/death has been reported, a referral has been made to OSHA concerning a possible hazard, or a complaint has been filed. Inspectors will not be put off or dissuaded by a demand to produce a warrant. There is also the possibility that such a request will pique the interest of inspectors and result in a more thorough inspection.

Warrant = Broader Scope. An inspector who appears without a warrant provides the employer an opportunity to negotiate regarding the proposed scope of the inspection. Requesting a warrant may inadvertently result in a broadening of the scope of the inspection. For example, out of an abundance of caution or based on a belief the employer has something to hide, an inspection triggered by a complaint concerning a specific location could easily be expanded by a reviewing judge to include other locations or an entire facility.

Demand = More Time. As discussed above, demand equals delay, which might not always be such a bad thing; especially when the inspection comes as a surprise. Exercising your right to request a warrant can give you some extra time to review training records and to conduct your own site inspections. It also gives you the opportunity to consult with legal counsel.

Negotiation = Compromise. Compromise is always an option. As discussed above, demanding a warrant may create more problems than it solves, but opening a dialogue with the inspector may allow you to better manage your risk. Information is key. Instead of sending the inspector off to procure a warrant ask what prompted the inspection (e.g., injury/fatality, random inspection, complaint). Once you determine the basis for the inspection, initiate a dialogue about limiting the extent of the inspection to just that reason (e.g., if the reason was that an employee gave a complaint about a particular guard on a specific machine, try to limit the inspection to that machine). If you feel representation is necessary, simply ask for a short delay to allow you to contact your legal counsel or designated representative, or respectfully suggest the inspection take place on another day.

Keep in mind that inspectors will almost always review required safety posters, safety records (including training records); and, in California, the employer’s Injury & Illness Prevention Program.

Given the unpredictable nature of OSHA, Cal/OSHA and ADOSH inspections it is best to consider all available options and take the approach that will help minimize overall risk and convey a cooperative (within in reason) attitude.

[i] OSHA has created a master list of targeted establishments using specifically identified NAICS codes: 491110 Postal Service (Processing & Distribution Centers only); 492110 Couriers and Express Delivery Services; 492210 Local Messengers and Local Delivery; 493110 General Warehousing and Storage; 493120 Refrigerated Warehousing and Storage; 493130 Farm Product Warehousing and Storage; 493190 Other Warehousing and Storage.