Earlier this summer, Cal/OSHA began conducting enforcement inspections in earnest specifically focused on COVID-19. On Sept. 4, the agency announced the first group of agricultural employers to be cited and the proposed penalties, ranging from $2,025 to $51,190. Cal/OSHA considers agriculture a priority for their strategic enforcement. According to Cal/OSHA Chief Doug Park, “these are industries where workers have been disproportionately affected, and these citations are the first of many to be issued in the coming weeks and months.” It is critical that agricultural employers understand and are prepared for what can transpire during a Cal/OSHA COVID inspection.
Elements of an Investigation
The practical reality is that a visit from Cal/OSHA specific to COVID should look and feel like any other agency investigation, with the exception being that the enforcement staff are specifically focused on the steps being taken to mitigate the risk associated with COVID. It is also critical to remember that while they are there to evaluate the business’ COVID-focused efforts, it is within their jurisdiction to request details on any programs specific to worker safety and health. That being said, developing an Inspection Protocol Checklist covering the following areas will be the most effective way of ensuring all staff are prepared and respond appropriately:
- Visitor Arrival
- The Walk-Around
- Employee Interviews
- The Document Request
- The Departure Discussion
- After the Departure Discussion
Whomever from the company that is responsible for greetings guests at the office or entrance to your business should politely welcome the investigator and then ask to see their official ID card and a supporting business card. All supervisors, foremen, crew leaders and other managerial staff should be instructed to look for visitors on the property in any location (office, shop, packing shed, supply building, fields, vineyards, orchards, etc.) If they encounter a visitor, the same first request should be made to see official identification, a business card and, in the case of individuals not at the office, ask that they travel to that location for further assistance.
The guest should then be asked about their purpose, including why they are there and what they would like to see. The designated organizational contact should be then be contacted and informed of the investigator’s presence and stated purpose. It is reasonable to ask the individual to wait while the management designee arrives, and they should be seated in a communal, public area that is visible to others. Based on the purpose of the visit, the management designee may contact the company’s legal counsel to inform them of the visit and, in turn, any directives provided by the lawyer should be followed. Additionally, ensure a request is made of the investigator to follow your company’s COVID safety protocol, including wearing the appropriate PPEs and face mask covering, temperature check, complete a health screening questionnaire and washing or sanitizing their hands.
Once it is determined who will accompany the investigator, it is critical to consider the path that will be taken for them to visit all areas of the site that have been requested. Think clearly before departing where you and they will walk and drive, being mindful of the work currently being conducted. The agency team will be made up of any of the following: One or more inspectors; Measurement tools; Cameras; Union representatives (if applicable); and Employee(s).
The company team should be comprised of the following: The designated management representative(s) each with a notebook; Your Safety and/or Human Resources Manager, if that individual is not the designated management representative; An additional staff member to serve as photographer and note taker; and Your Shop Manager/Mechanic/individual capable to speaking to equipment-specific inquiries.
Understand that the investigator will want to have a clear understanding of how your business operates and in the context of COVID, how and where workers are taking breaks, washing hands, using hand sanitizer, and the types of barriers being used that allow for proper social distancing. Remembering these areas of focus are critical prior to the investigation taking place so you can provide proper evidence of the steps being taken.
An integral part of the investigation process is employee interviews. This allows the Cal/OSHA team to attempt to ascertain what the culture of the business is like versus what is described by management or laid out in written documents. As with the walk-around, thought needs to be given in advance to where interviews would be conducted, allowing for privacy from other employees. You may request to sit in on the interview, but prepared to be told no.
If you are allowed in the interview, remember the following:
- Take notes of what is discussed by both the Cal/OSHA team member and your employee
- Keep any comments you provide short
- Do not allow yourself to become part of the interview, in turn being perceived as guiding, influencing or even pressuring your employee
- Do not offer additional information outside of what is requested by the investigator, in turn assisting them in their duties unnecessarily
If you are not allowed in the interview, keep these details in mind:
- Make a note to talk with your employee later but not so long afterward that they may not remember details: What were they asked? What did you say? What was the investigator interested in learning?
Remember that our workforce tends to be leery of any government official that is questioning them, which leads to mischaracterizations or misstatements. It is important to remember not to retaliate against any employee for the information provided during an investigation of any type, Cal/OSHA or otherwise.
The Document Request
Cal/OSHA may contact you prior to their onsite visit, requesting a wide variety of occupational safety and health related documents. Alternatively, they may make that request when arriving to your operation. In either case, consult with your legal counsel prior to turning over any documents. In the case of the COVID investigation, be prepared to provide these documents:
- Injury and Illness Prevention Program (IIPP)
- COVID-19 IIPP Addendum
- Log 300
- Employee and supervisor safety training records, specifically COVID-safety training documentation
Remember, while they agency is there specific to reviewing COVID, they may also inquire about any and all other worker safety programs. Do not be surprised if they ask to see the Heat Illness Prevention Program and accompanying worker training documentation, equipment safety training records and field sanitation documentation, amongst others. Ensure that you are clear on who should receive those documents and the deadline for when documents must be provided.
The Departure Discussion
Ideally, the management designee and other staff have maintained a professional, courteous demeanor throughout the Cal/OSHA visit. As their onsite work comes to a close, use that opportunity to ask questions and thoughtfully listen. Inquire about what was found, the citations being considered, the regulations specifically being referenced and any other details they can provide. Do not interject with explanations, defending your position or offering to fix issues on the spot. The investigators are required to follow a process and, as such, any efforts made to take corrective action should come after you have been notified of their official decisions.
After the Departure Discussion
It is essential to immediately act following the investigator’s departure. First, assemble all staff impacted by the investigation. Conduct a team assessment of how things went, including capturing a list of all the questions asked of various team members, the answers they provided and the areas of concern raised by the inspectors. Then have each staff person document their interaction with the investigator.
After discussing with legal counsel, begin assembling all the requested documentation and providing records in a timely fashion. In addition, ensure that all photos of the process are downloaded and stored securely. Keep all notes, statements and other pertinent details in one secure location for access throughout the process. Ultimately, developing a plan to ensure you are prepared is the most critical step to be taken. Discuss what this could look like with your key staff and ensure the team knows how to respond. With the agricultural industry as a stated target of Cal/OSHA, this is time and energy well-spent.
For more information about worker safety, human resources, labor relations, pesticide safety or food safety issues, please visit www.agsafe.org, call (209) 526-4400 or email firstname.lastname@example.org.