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Mastering the Double-Edged Sword


Smart, Compliant Workplace Examinations Are a Good Tool.

By Henry Chajet and R. Brian Hendrix

 

Should a supervisor sign or countersign workplace examination forms intended to document compliance with 30 C.F.R. 56.18002? Under that standard, who would qualify as a person who is “competent” to perform workplace examinations? These are just two of the questions that almost always come up during the seminars we teach on managing MSHA liability, and both are great questions.

“Good” workplace examinations are one of the best tools that an operator has for compliance. In contrast, “bad” workplace examinations, the failure to examine the workplace and/or the failure to properly document and follow-up on items identified during a workplace examination can make it quite easy for MSHA to establish an operator’s and/or an individual supervisor’s personal liability, both civil and criminal.

A workplace examination is essentially a compliance and safety audit. MSHA requires mine operators to audit their own compliance every shift, to document these audits and to provide MSHA with access to those documents when MSHA requests access. MSHA is completely free to (and will) use the results of these self-audits as the basis for citations and to support allegations of high levels of fault or negligence.

How do you comply with the standard and limit your liability? Below are five ideas that are intended to maximize the value of workplace examinations and to limit the liability associated with them. We recognize that the circumstances faced by each mine operator and the conditions or practices specific to each mine will dictate the value of these ideas or suggestions. That said, the value or merit of these ideas depends on your particular circumstances.

First, here’s what the standard says:

Examination of Working Places
  1. A competent person designated by the operator shall examine each working place at least once each shift for conditions which may adversely affect safety or health. The operator shall promptly initiate appropriate action to correct such conditions.
  2. A record that such examinations were conducted shall be kept by the operator for a period of one year, and shall be made available for review by the Secretary or his authorized representative.
  3. In addition, conditions that may present an imminent danger which are noted by the person conducting the examination shall be brought to the immediate attention of the operator who shall withdraw all persons from the area affected (except persons referred to in section 104(c) of the Federal Mine Safety and Health Act of 1977) until the danger is abated.

Certain words and phrases in this standard raise questions, so let’s start by parsing the language:

  1. “a competent person designated by the operator” While the standard permits hourly or management personnel to comply with this duty, consider requiring hourly miners – not supervisors or agents of the company – perform workplace examinations for the purposes of compliance. Put simply, if a miner isn’t “competent” to perform a proper workplace examination, is the miner really competent to work safely in a mine? Similarly, management has an obligation to confirm that competent persons are properly examining the workplace and identifying and addressing hazards.
  2. “examine each working place at least once each shift” Do you require each hourly employee to examine their workplace as they enter the area and before work commences? The standard does not require an examination to occur at the beginning of a shift or prior to work commencing. However, it makes sense to require and train miners to continually examine their workplaces for hazards during the shift. Miners should be discouraged from “pencil whipping” their examination card, and encouraged to thoughtfully examine their workplace for hazards.
  3. “promptly initiate appropriate action to correct such conditions” Do you require that any hazards observed by a miner during an examination be corrected immediately by that miner if capable of correcting it or isolating it safely? The standard uses the word “promptly,” not “immediately,” but shouldn’t any hazard identified as such be addressed before work commences? If the miner cannot correct a hazardous condition, shouldn’t they prevent exposure to it (e.g. by the use of a barricade), warn others of its existence (e.g. warning signs or tape) and only then report it to management?
  4. “imminent dangers … shall be brought to the immediate attention of the operator who shall withdraw all persons from the area” Does every miner have the authority to withdraw miners from an area affected by an imminent danger? A miner’s first reaction should not be, “I need to ask a supervisor about this before I do something about it.” While that’s exactly the reaction authorized by this provision, operators should consider training and empowering miners to react differently. Shouldn’t that miner’s first priority be to get any miners out of the affected area? If we want to make “safety first” really mean something, train and empower miners to react this way. 
  5. “records that such examinations were conducted shall be kept” Do you require each hourly miner to document every workplace examination as soon as possible after it was conducted? Does that document include a list or description of the hazards or absence of hazards that they observed or identified and the actions taken to address or prevent exposure to uncorrected hazards? Do the miners clearly identify the area(s) examined? This is particularly important for miners who don’t work in a fixed location every shift.

The standard doesn’t require a miner or supervisor to sign or countersign workplace examination records. Nevertheless, requiring a miner who actually performed the examination to acknowledge its completion, the actions taken to address any hazards identified, and the actions taken to protect or warn other miners of uncorrected hazards makes it more likely that the miner will take ownership of this task. In contrast, a supervisor’s signature on a workplace examination form that documents an examination that he or she did not personally perform can significantly increase that supervisor’s individual civil and criminal liability.

It is often said that self-audit records are double-edged swords, and workplace examination records certainly qualify as such. Good workplace examinations and workplace examination policies and procedures properly tailored for your mine and workforce can improve your safety record and limit your liability. The ideas above should provide you with a good starting point as you evaluate your workplace examination policies and procedures.