As most employers are aware, OSHA inspections typically involve a request for the employer to produce certain documents. In many cases, employers are unsure of what documents the compliance officer is entitled to see and copy. Employers can also be unsure of how long to retain certain documents required under OSHA. Some OSHA regulations require a specific retention period for documents. Other OSHA regulations, however, do not (although it is often advisable to retain certain documents even if retention is not technically required). This article is intended to give general guidance in these areas.
CATEGORIES OF DOCUMENTS
The following list sets out the typical OSHA standards and the General Duty Clause that may require an employer to create, retain, and produce certain documents during the course of an inspection, if requested by the OSHA compliance officer. Obviously, whether the employer is required to have certain programs or others will be dependent upon the nature of the work activities at the site. This list is focused on the standards that are applicable to employers in General Industry (29 CFR 1910 et. seq.) and not Construction Industry (29 CFR 1926 et. seq.) although some General Industry standards are substantially similar and also applicable to the Construction Industry.
During the inspection, the employer should request the compliance officer to make the document request in writing (it can be handwritten) so that there is no confusion over what documents are being requested and so that the employer is not cited for failure to produce a document it did not believe was requested by the compliance officer. It is important to note that any documents produced can be utilized to issue citations, thus, the employer should not produce any documents unless required by law.
|Control of Hazardous Energy – Lockout/Tagout (LOTO)
|29 CFR 1910.147 – requires the employer to develop procedures to protect employees who service or maintain its machines against unexpected energization or startup of equipment or release of stored energy.
29 CFR 1910.147(c)(7) – the employer must train its “authorized” employees how perform LOTO with these procedures, as well as “affected” employees who may be exposed to the equipment.
29 CFR 1910.147(f)(2) – requires the on-site employer and outside employer to inform each other of their respective lockout or tagout procedures.
Document retention: The LOTO standard requires employers to certify that periodic inspections have been performed at least annually. Accordingly, employers should retain certifications for 1 year, or until a new certification is created. It is also advisable that employers retain employee LOTO training records for the duration of employment.
|Occupational Noise Exposure
|29 CFR 1910.95 – requires the employer to provide a hearing conservation program (education, annual audiograms, hearing protection) for employees who are exposed to noise levels equal to or exceeding an 8-hour time weighted average (TWA) of 85 decibels on the A scale.
Document retention: Employers must retain noise exposure measurement records for two years. Employers must also retain audiometric test records for the duration of the affected employee’s employment.
|Personal Protective Equipment (PPE)
|29 CFR 1910.132 – the employer must conduct an initial certified hazard assessment of the workplace to determine if hazards are present which require personal protective equipment for eyes, face, head, and extremities to protect against injury. The employer must provide each employee with the necessary PPE, train the employee in the use of PPE, and enforce its use. The employer must pay for the PPE with limited exceptions. A second certification is required to confirm that the PPE was provided, the employee received training in how to utilize it and that the employee “understood” the training.
Document retention: Employers should retain the written certifications of a hazard assessment and employee training for the duration of employment for all employees exposed to identified hazards. It is also advisable for employers to retain employee PPE training records for the duration of employment.
|Hazard Communication (Employee Right to Know)
|29 CFR 1910.1200 – requires the employer to develop a written hazard communication program to protect employees against any hazardous chemical which presents a physical or health hazard. The employer is required to conduct an assessment to determine which hazardous chemicals may be present, to inform employees of the presence of the hazardous chemicals, and train employees on how to read a Safety Data Sheet (SDS) for each hazardous chemical. Employers are entitled to have access to the SDS and to obtain copies.
Document retention: Employers must retain SDSs for the duration of employment plus 30 years for all employees exposed to the chemical in question, unless there is some other record of the identity of the substance or chemical, where it was used and when it was used. The employer must also be sure it has a copy of all SDSs for all chemicals that are currently in use. It is also advisable for employers to retain employee hazard communication training records for the duration of employment.
|Process Safety Management
|29 CFR 1910.119 – requires employers who utilize certain toxic, reactive, flammable, or explosive chemicals in certain quantities, to develop a written fourteen (14) part PSM program. The PSM program addresses all aspects of work around the covered “process” that utilizes the chemicals.
29 CFR 1910.119(h) – requires training of contractor employees who perform certain work around the covered process concerning the hazards and elements of the PSM program.
Document retention: Employers must retain process hazard analyses (PHAs) for the life of the covered process. In addition, the employer must prepare a written record that each employee who is involved in the operation of the process was trained and understood the training. These verification records should be retained for the length of the employee’s employment. We recommend that employers also retain all process safety information (PSI) used for developing, maintaining, auditing, and otherwise managing all processes for the life of the processes. Any incident investigations conducted under the PSM standard must be retained for 5 years. Additionally, employers must retain the two most recent compliance audit reports conducted under the PSM standard.
|Emergency Action Plans
|29 CFR 1910.38 – requires the employer to develop an emergency action plan to protect employees against the hazards of fires or other emergencies. The EAP must include provisions for reporting a fire or other emergency, evacuation procedures, and the alarm system. The employer must train each employee. 29 CFR 1910.38(e).
Document retention: There are no specific document retention requirements under 29 CFR 1910.38, aside from the requirement that employers develop and maintain a written EAP. If the employer has ten (10) or fewer employees, the plan does not have to be in writing.
|29 CFR 1910.157 – requires the employer to provide fire extinguishers and mount, locate, and identify them so that they are readily accessible to employees. If employees are expected to use the fire extinguishers, the employer must provide training upon initial employment and at least annually thereafter. The employer must develop an educational program if it expects the employees to use the fire extinguishers. Many employers specifically prohibit employees from using the fire extinguishers to avoid this training obligation. If the employer permits the employees to use the fire extinguishers, the educational program and training should be in writing and maintained for the length of employment.
|Permit-Required Confined Spaces
|29 CFR 1910.146 – requires the employer to identify all confined spaces within the workplace that employees or outside contractors may be required to enter and contains a hazardous atmosphere, engulfment hazard, an internal configuration that could trap or asphyxiate an entrant, or other serious safety or health hazard. The employer must develop a written program and procedures for employees who enter the confined spaces. Only trained and authorized employees can enter the space. 1910.146(c)(8) – requires the host-employer to provide certain information to other contractors who will have their employees enter the space.
Document retention: Employers must retain each canceled entry permit for at least 1 year and review them within one year after each entry. It is also advisable to retain employee confined space training records for the duration of employment.
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