Companies’ voluntary audits now being used against them

What appears to be a new OSHA practice of using a company’s voluntary safety and health audit as a guide to identifying possible hazards to focus on in an inspection should prompt employers to review their procedures for these audits.

For many years, OSHA has had a final policy in effect which said that the agency would not use the voluntary audits to guide inspections. However, in a recent Review Commission decision evidence surfaced demonstrating that OSHA had done just that.

An article by attorneys Mark S. Dreux and Matthew C. Thorne of Arent Fox describes what happened in the case of Secretary of Labor v. BP Products North America, Inc. et al., which involved three citations issued in 2010 stemming from an inspection under OSHA’s Petroleum Refinery PSM National Emphasis Program.

“Despite being ‘troubled’ by OSHA’s ‘blatant contravention’ of its Final Policy, the Administrative Law Judge permitted the evidence, in effect, condoning the practice for future use,” the article said.

The attorneys advise that voluntary audit reports “should be written carefully on the assumption they will become a public document that OSHA may request and review.” They also suggest considering whether to engage outside counsel to conduct the audit under privilege.

This new approach is just one more example of OSHA cutting off its nose to spite its face by erecting barriers to voluntary safety and health programs by good employers, which are one of the best ways to achieve a safe workplace.