OSH Law Primer, Part X: Voluntary Safety and Health Self-Audits

The first article in this series provided a general overview of the OSH Act and OSHA; the second article examined OSHA’s rulemaking process; the third article reviewed an employer’s duty to comply with standards; the fourth article discussed the general duty clause; the fifth article addressed OSHA’s recordkeeping requirements; the sixth article covered employees’ and employers’ respective rights; the seventh article addressed whistleblower issues; and the eighth article covered the intersection of employment law and safety issues; and the ninth article discussed OSHA’s Hazard Communication Standard (HCS). In this, the tenth article in the series, we examine voluntary safety and health self-audits.

Quick Hits

• Voluntary self-auditing may assist organizations in identifying and addressing hazards, demonstrating commitment to safety, improving regulatory compliance, and evaluating trends in safety performance.
• OSHA has implemented a policy that outlines certain protections for companies that conduct documented voluntary self-audits and take corrective action to address any identified hazards.
• Other legal protections for self-audit information include attorney-client privilege, the work product doctrine, and state-specific audit privileges.

In today’s complex regulatory landscape, voluntary self-auditing has become a common practice for organizations to ensure compliance with workplace safety and health regulations. While audits can be a valuable tool for identifying and addressing potential hazards, they also raise concerns about the potential for audit information to be used against companies in legal proceedings.

What Is a Voluntary Safety and Health Self-Audit?

A voluntary safety and health self-audit is a systematic process conducted by an organization to assess its workplace safety practices and compliance with OSHA regulations. It involves a thorough review of various aspects of the workplace and organizational adherence to legal requirements.

Conducting a voluntary safety and health audit generally involves several key steps. Audit teams—often comprised of company personnel and outside consultants—assess, among other things, safety procedures, training, equipment, and compliance with regulations. The scope of an audit can vary from limited to comprehensive, depending on a company’s size and needs. Gathering information through interviews, observation, and technical assessments helps identify potential hazards and areas for improvement. Once an audit is complete, a report is often generated that outlines findings, recommendations, and corrective actions.

Potential Benefits of Voluntary Self-Auditing

Safety and health audits offer a comprehensive approach to monitoring compliance, identifying hazards, and demonstrating diligence in regulatory efforts. Voluntary self-auditing offers several benefits for organizations, including:

• Identifying and addressing hazards: Regular audits can help companies proactively identify and address safety hazards before they lead to accidents or injuries.
• Demonstrating commitment to safety: Audits can show that a company is taking workplace safety seriously and is committed to providing a safe and healthful working environment for its employees.
• Improving regulatory compliance: By regularly assessing their compliance with safety regulations, companies can reduce their risk of fines and penalties or lessen fines and penalties if they are issued against the company.
• Identifying trends: Over time, audits can help companies identify trends in safety performance and make data-driven decisions to improve their safety programs.

Potential Risks of Self-Auditing

Despite the benefits, there are also potential risks associated with self-auditing. One significant concern is that audit information may be used against a company in legal proceedings, such as in OSHA enforcement.

OSHA’s Voluntary Self-Audit Policy

To address some of these concerns, OSHA has implemented a voluntary self-audit policy. The policy statement, titled, “Final Policy Concerning the Occupational Safety and Health Administration’s Treatment of Voluntary Employer Safety and Health Self-Audits, was published in the Federal Register in July 2000. This policy outlines certain protections for companies that conduct documented voluntary self-audits and take corrective action to address any identified hazards.

Key provisions of the policy include:

• No routine requests for self-audit reports: OSHA will not generally request self-audit reports at the initiation of an inspection.
• No citations for corrected conditions: If a company discovers a violation through a self-audit and corrects it before an inspection, the policy states OSHA will not issue a citation.
• Protection from willful violation findings: If a company is responding in good faith to a violation identified through a self-audit, the policy states that OSHA will not use the audit report as evidence of a willful violation.
• Penalty reduction: Companies that conduct self-audits and take corrective action may be eligible for a penalty reduction.

Other Legal Protections for Audit Information

In addition to OSHA’s policy, there are other legal protections that may be available to protect audit information. These include:

• Attorney-client privilege: If an attorney is involved in conducting or reviewing the audit, certain communications between the attorney and the company may be protected by attorney-client privilege.
• Work product doctrine: This doctrine protects certain materials prepared by an attorney in anticipation of litigation.
• State-specific audit privileges: Some states have enacted laws that provide specific protections for self-audit information.

While many states afford employers a so-called “audit privilege” that is intended to prevent the audits or their results from being used against an employer in litigation, those audit results can provide a roadmap for someone seeking to assail the employer’s efforts and lead them to information that is disadvantageous to the employer. Moreover, in some states the privilege is somewhat limited, and in others there is no such privilege.

Voluntary self-auditing can be a valuable tool for improving workplace safety and health. However, there are potential legal risks associated with self-auditing, so organizations may want to take steps to protect their audit information. By understanding OSHA’s voluntary self-audit policy and other available legal protections, companies can use self-auditing to enhance their safety programs while potentially minimizing their legal risks.

Ogletree Deakins’ Workplace Safety and Health Practice Group will publish additional articles on the Workplace Safety and Health blog as an ongoing part of its OSH Law Primer Series. The next article in the series addresses OSHA citations.

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