by Katie Navarra
If an OSHA inspector arrived at your farm would you be ready for an inspection?
The number of Occupational Safety and Health Administration (OSHA) inspections, particularly on dairy farms in New York, is expected to increase significantly in 2014.
During a webinar cosponsored by Farm Credit East, the Northeast Dairy Producers Association (NEDPA), New York Farm Bureau and Pro-Dairy, experts Dave Schwoerer, a safety specialist and owner of Innovative Safety Systems, and Charles B. Palmer, an attorney with Michael Best & Friedrich, LLP, offered advice to New York farm businesses, especially dairies for preparing for an OSHA inspection.
How will a farm business know they are under inspection?
A farm owner will only know their farm is under inspection when an inspector arrives on the property. “Advance notice is prohibited,” said Palmer, “an investigator, with a team will show-up, knock on your door, show their credentials and tell you that you were selected.” It is also possible a wage and hour inspector will arrive with the OSHA inspector.
What is OSHA looking for?
When OSHA was established by the federal government in 1920, it was granted limited authority in the agriculture industry. While their authority is limited to specific standards, OSHA leans on a general code known as Section 5 (a) (1), which states that “each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees…”
“This is where a lot of citations to agricultural businesses is coming from,” Palmer explained, “OSHA really doesn’t have the authority to regulate on this code.”
Aside from the general duty cause, agricultural businesses should be knowledgeable about the codes specific to the industry. These include 1928 (agriculture), 1910.142 (temporary labor camps), 1910.11 (a) and (c) (anhydrous ammonia), 1910.266 (logging operations), 1910.145 (slow moving vehicles) and 1910.1200 (hazard communication). Visit OSHA’s website, www.osha.gov, to review each code and understand the expectations.
How should you behave during an inspection?
“Know your rights,” Palmer insisted, “when you are ignorant of your rights and the standards is when inspections go poorly.”
First, is your farm large enough to be inspected? To qualify for an inspection, a farm business must have more than 10 employees and/or a temporary labor camp on-site. In Wisconsin, Palmer has seen instances where OSHA has shown up to do an inspection and there are not enough employees for OSHA to conduct an inspection and so they have walked away. “Don’t count family as employees,” he added, “it is better to have one full time employee versus two part time employees.” This keeps your total employee count below 10.
Ask how your farm was selected for an inspection. Was it selected based on random, neutral criteria? Was it selected because of an accident or complaint? By law, the farms should be selected based on neutral criteria unless there was a fatal accident or complaint filed. What has been stated thus far for New York is that inspections will zero in on the 20 largest New York State Permitted Concentrated Animal Feeding Operations (CAFOs). “Will that pass your constitutional protections,” Palmer questioned, “that is not a random selection process.”
It is also important for the owner to know that they and their employees do not have to perform demonstrations of how a work process would take place.
Private interviews of non-management employees are allowed, but not while an employee is performing a work-related task. If an inspector requests a private interview, offer an office space or at a minimum ask that the inspector and employee step out of the immediate work area.
Technically, the farm business owner maintains the right to deny an inspection if an OSHA representative arrives without a warrant from a federal judge. A farm owner can ask an inspector to return a different day if in the middle of critical farm work, without flat out refusing an inspection.
“Be polite, professional and prepared,” he emphasized.
How should you prepare for an inspection?
If a farm business owner strongly objects to an OSHA inspection, “reduce the size to less than 10 employees and no on-site housing,” Palmer suggested. Knowing that is unrealistic or unlikely, hiring an outside consultant can help the farm owner prepare for an inspection.
Often, farm owners ask, where do I start? Palmer suggests, “get a hazard communication plan together. This is the most common citation I’ve seen.”
Create a binder where all Material Data Safety Sheets (MSDS) can be stored. Explain Personal Protective Equipment (PPE) and provide employees training, and require they sign a sheet testifying to their participation. “This is often the litmus test to see if you are enlightened and safe,” Palmer said, “if not, everything goes downhill from there.”
It is also beneficial to review the housing code, field equipment safety, hazard communication, skidsteer training, grain storage safety and general safety is always a good place to start and less expensive than retaining a lawyer to fight citations.
“Most OSHA offices have a client outreach position to provide education,” he added, “these positions have no inspection authority, but can provide a lot of insight into what they’ll be looking for.”
Lastly, have a camera available and know how to use it. “OSHA carries very good camera equipment for video and still photography,” Schwoerer said, “I encourage you to have a camera ready so you can take pictures at the same time.
The two hour webinar, in its entirety is available on Youtube.com and is titled OSHA Compliance: What Farm Businesses Need to Know.
by Katie Navarra