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OSHA bullseye widens for operating businesses

Friday, April 17, 2020 7:04 PM | Anonymous
With so many businesses categorized as nonessential and thereby closed, there are fewer businesses for inspectors of the Occupational Safety and Health Administration to inspect. That means dealerships continuing to operate are bigger targets for inspectors.
Moreover, dealerships are relatively safe places for inspectors to visit.
Adam Crowell, the president and general counsel of CATA member ComplyNet, led an April 9 webinar, "Preparing Your Dealership for a Health & Safety Inspection," that walked dealers through what to expect if OSHA comes knocking. He noted that OSHA, already equipped with a $581 million budget for fiscal 2020, got $15 million more from the recent stimulus packages.
Visits from OSHA often are prompted by complaints by employees, and employers cannot retaliate against workers who report unsafe conditions. Upon their visit, OSHA compliance officers will present their credentials, including a photo ID and serial number. They will explain why a business has been selected for inspection and what its scope will entail.
"Keep in mind, if they are doing an inspection, they’re not just going to be looking at COVID-19 violations; they’re going to be looking for other things, too. And they’re not going to ignore things that they ultimately see," Crowell said.
Before any inspection, employers should review their written hazard communications plan, train workers exposed to hazardous chemicals, make sure several items are posted — an OSHA employee rights poster and an OSHA 300a, which summarizes any workplace injuries — and that the OSHA 300s and 301s, incident reports log of all injuries, is maintained.
"For franchised dealers," Crowell said, "the majority of violations involve hazard communication, followed by respiratory protections and some other general requirements. But hazard communication is always the most important.
"Employees have a right to know what sorts of chemicals they are exposed to that are hazardous, and they have a right to know how to respond to those: how to read a safety data sheet, what sort of personal protective equipment do they have?"
The OSHA general duty clause states that employers have a general duty to furnish each employee a workplace to that is free from recognized hazards that are likely to cause death or serious physical harm, including:
 • Personal protective equipment standard
 • Respiratory protection
 • Eye and face protection
 • Hand protection
 • Sanitation
The now-ubiquitous face coverings are meant to protect others from COVID-19, but they offer limited protection for the person wearing one. The N95 respirators provide air filtration but can become hot and stuffy and therefore could require a medical evaluation to determine a person’s fitness to wear one. Otherwise, the use could lead to a fall that triggers a workers’ comp issue. Neither protection should replace social distancing practices.
If a business requires its employees to wear a face mask, Crowell said the employer probably should provide them.
During the walk-around procedure, the employer has the right to be represented by someone who could need up to an hour to reach the business. Employers also can demand that the compliance officer obtain an inspection warrant before entering the worksite.
Should an inspection occur, employers should establish that they take worker health and safety seriously, and offer examples of social distancing measures they are taking during the pandemic — spreading out technicians, working staggered shifts, placing marks on the floor where people can stand, having hand sanitizers throughout the business, and more.
Dealers should conduct an inventory of all on-site chemicals, as they could be using chemicals not used before the pandemic.
Inspectors also are entitled to consult privately with a reasonable number of employees. "It’s going to be during that time that they’re going to start asking the employees questions about health and safety — whether or not there is hazard communication training, what is an SDS (safety data sheet), can you show me where the safety data sheets are ultimately kept?" Crowell said.
There are four OSHA citation levels: Other than Serious, Serious, Willful, and Repeat. The first two can carry fines up to $13,000 per violation; the latter two, nearly $135,000. There is no limit to how far back OSHA can look, so an offense committed today would be a repeat offense if the same matter was cited against the business 20 years ago.

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