230 Neb. Admin. Code, ch. 6, § 003
Inspection/consultation programming provides general guidelines to the commissioner and the Executive Director of the Department's Office of Safety and Labor Standards in planning inspection operations and related activities and instructions to satisfy the intent of Neb. Rev. Stat. ' 48-443, et seq. This program does not supersede federal enforcement regulations or activity. The Department shall not issue penalties for workplace hazards identified by inspection or consultation although such hazards identified shall be abated.
The primary consideration in conducting inspection/consultation operations is to enhance workplace safety and health and to decrease the frequency or severity of work-related injuries and diseases. These regulations are intended to contribute to safe working conditions and practices for all employees through the implementation and maintenance of occupational safety and health programs by Nebraska employers. The anticipated effect by these regulations will be to reduce workers' compensation costs for all employers in Nebraska. The goal is a safe and healthy work place.
Inspections of worksites of high frequency employers which are selected according to the Department of Insurance, Workers' Compensation Court, and/or the Department of Labor's scheduling plans for safety and health programs.
Inspections of employers on multi-employer worksites whose activities were not included in the programmed assignment (e.g., a low injury rate employer requesting consultation at a worksite where programmed inspections are being conducted for high frequency employers).
Inspections, either programmed or unprogrammed, may fall into one of two categories depending on the scope of the inspection.
Each inspection/consultation conducted will normally include, but will not be limited to, a review of the injury and illness records, an assessment of the employer's safety committee(s), written injury prevention program and other required safety programs. In addition, there will be a walk-through to survey conditions, operations, and work practices.
The information gathered during this review and walk-through will be used to confirm or revise the determination made as to whether the state representative's scope should be expanded.
First priority= programmed inspections
Second priority= requests by employers for consultation
High-frequency employers referred by the Department of Insurance and/or Workers' Compensation Court in response to specific evidence of hazardous conditions identifying workplace injuries and their experience modification, previous safety and health history, Nebraska Workers' Compensation Form 1 (used in place of OSHA's Form 301), incidence rates found on OSHA's 300 log at a worksite are considered programmed fee inspections.
Employers shall be classified based on SIC codes. After employers are ranked by frequency or recordable injuries (highest to lowest), the Department shall identify the upper one-half or top fifty (50) percent of those employer groups as high frequency employers subject to programmed inspection. The frequency data shall be used with other available state or national occupational injury data to rank employers. This information will remain confidential.
Those consultations conducted in response to employer requests for assistance to help them resolve workplace safety and health issues relating to federal OSHA and/or MSHA regulations are considered fee consultations.
Programmed inspections may be conducted jointly by both safety and health personnel whenever resources are available and it is likely, based on experience in inspecting similar workplaces, that both safety and health hazards exist. If an inspection has begun as safety only or as health only the state representative may determine during the course of the inspection that the inspection should be expanded. Establishments which appear on both the safety and health registers may be scheduled for a joint safety/health inspection whenever practical. The Department of Insurance and Workers' Compensation Court will provide, whenever possible, the type of inspection necessary for each employer referred as a high-frequency employer.
Employers may be selected by the commissioner for inspection on the additional basis of factors intended to identify the likelihood of workplace injuries. Such factors shall include, but are not limited to:
State representatives employed by the Department shall have the right and power to enter any premise, building, or structure, public or private, for the purpose of inspecting any work area or equipment. A refusal by the employer of entry by a state representative employed by the Department shall be a violation of this subsection. If the Commissioner finds, after notice and hearing, that an employer has violated this subsection, he or she may order payment of a civil penalty of not more than one thousand dollars for each violation. Each day of continued violation shall constitute a separate violation.
The employer shall not interfere with or limit the lawful duties of a state representative. Examples of such interference are refusals to permit the walk-through, the examination of records essential to the inspection, the taking of essential photographs, the inspection of a particular part of the premises, employee interviews, or the refusal to allow attachment of sampling devices.
Whenever there is a reasonable need for records, documents, testimony, and/or other supporting evidence necessary for completing an inspection scheduled in accordance with current and approved inspection scheduling or an investigation of any matter properly falling within the statutory authority of the Department, the commissioner may issue an administrative subpoena; see Neb. Rev. Stat. ' 81-119.
Employers who receive advance notice of an inspection must also inform their employees' safety committee representative(s) in advance of an upcoming inspection. Based on advanced notice of inspection, employers who contact the Department of Labor prior to an inspection indicating their reluctance to work with an state representative and/or their refusal to allow entry by a state representative will automatically generate a warrant to be served by the state representative upon arrival at the employer's worksite.
State representatives carry official credentials that can be verified by calling the Department's Office of Safety and Labor Standards. When the state representative arrives at the establishment, he or she shall display official credentials.
Upon arrival at the employer's worksite for a programmed inspection visit, the state representative will briefly review their role with the employer during the visit.
The state representative will explain how the establishment was selected. If the employer is subject to Federal regulations, the state representative will also ascertain whether an OSHA/MSHA enforcement inspection is in progress. If so, the state inspection may be terminated.
The state representative will explain the purpose of the visit, the scope of the inspection, and the standards that are being used as a minimum guideline. A copy of applicable safety and health standards will be provided upon request. The cost of this material shall be included in the cost of the inspection.
An employee representative from the safety committee or its designee shall accompany the state representative during the inspection.
The employer and a member of the safety committee designated by the committee shall attend the opening conference and to accompany the state representative during the inspection. Where there is no safety committee in place, the state representative may chose, at his/her sole discretion, an employee to accompany the inspection during the inspection process. Minimal disruption of the workplace shall be considered at all times.
The state representative shall advise that the law prohibits employers from discharging or discriminating in any way against an employee who has made any oral or written complaint to the safety committee or any governmental agency having regulatory responsibility for occupational safety and health, and any employee so discharged or discriminated against shall be reinstated and shall receive reimbursement for lost wages and work benefits caused by the employer's action.
The employer shall be responsible for all costs and expenses incurred by the Department accordingly for the investigator's time based upon the state's cost of employment for personnel to investigate and actual expenses necessary to reinstate the employee for lost wages and work benefits caused by the employer's action if deemed to be found a valid complaint.
After the opening conference, the state representative and accompanying representatives shall proceed through the establishment to inspect work areas for safety or health hazards.
The route and duration of the inspection are determined by the state representative. The state representative will make every effort to minimize any work interruptions. The state representative shall observe safety and health conditions and practices; consult with employees privately, if necessary; take photos and instrument readings; examine records, collect air samples, measure noise levels; survey existing engineering controls; and monitor employee exposure to toxic fumes, gases and dusts.
Trade secrets observed by the state representative will be kept confidential. The employer may require that the employee representative(s) have confidential clearance for any area in question.
Employees may be consulted with during the inspection tour. The state representative may stop and question workers, in private, about safety and health conditions and practices in their workplaces. Each employee is protected under state law from discrimination or discharge for exercising his or her safety and health rights to speak freely on workplace conditions.
The state representative will inspect OSHA/MSHA records of deaths, injuries, and illnesses which the employer may be required to keep. Where records of employee exposure to toxic substances and harmful physical agents have been required by OSHA/MSHA, they will be examined for compliance with recordkeeping requirements.
During the course of the inspection, the state representative will point out to the employer any unsafe or unhealthful working conditions observed and recommend corrective actions.
Violations may be corrected immediately. When they are corrected on the spot, the state representative records such corrections of the employer's good faith in compliance.
Any alleged imminent danger situation brought to the attention of or discovered by the state representative shall be abated immediately, whether or not the inspection was initiated in response to a request from an employer or by a referral of a high frequency employer. Additional inspection activity will take place only after resolution of the imminent danger situation.
When imminent danger is discovered (immediate danger of death or serious injury), the employer shall be so advised and requested to notify their employees of the danger and remove them from the area of imminent danger. It is the duty of the state representative at the site of an imminent danger situation to encourage the employer to do whatever is possible to eliminate the danger.
State representatives may suspend such work operations or equipment determined to constitute an imminent danger situation. Operation of such equipment shall not resume until the dangerous or unsafe condition is corrected to the satisfaction of the state representative.
A yellow tag shall be placed by an authorized representative of the Department conspicuously in the area where an imminent danger exists. The yellow tag may not be removed until the dangerous condition no longer exists, and the required safeguards and safety devices are installed. Only an authorized state representative can remove or provide written authorization for the removal of a yellow tag. The Department shall make all reasonable efforts to accommodate business schedules, shifts and other special needs to limit business disruption in securing the removal of a yellow tag seven days a week.
If the tag is not removed by the state representative upon departure, the employer may, in writing, request a hearing by the Department after being issued a yellow tag prohibiting use. The hearing will be held within twenty-four hours of the request or as soon as suitable arrangements can be made for a hearings officer. The employer is required to notify the safety committee(s) of the hearing and their right to attend. The Department's state representative may also inform employer representative(s) of the right to attend, and the time and location of the hearing.
Following the walk-through, the state representative will meet with the employer and a member of the safety committee designated by the committee in a closing conference to discuss the findings of the inspection.
After the closing conference, the state representative will send the employer a written abatement report explaining their findings and confirm any correction periods. A copy will only be made available to the Workers' Compensation Court and the Department of Insurance. The report may also include suggested means or approaches for eliminating or controlling hazards, as well as recommendations for making the employer's written safety and health program more effective. The employer may contact outside assistance or state representatives for additional assistance at any time. However, such requests after an inspection will be considered consultation for a fee if a state representative is requested to return to the worksite.
The state shall require abatement on serious hazards so that each inspection visit achieves its objective - effective worker protection. If an employer fails or refuses to eliminate or control an identified serious hazard or any imminent danger in accordance with the state representative's recommendations or any extensions granted, the employers report prepared by the Department will be forwarded to OSHA/MSHA officials or the most responsible authority for review and action, as appropriate.
The abatement period shall be the shortest interval within which the employer can reasonably be expected to correct the identified violation(s). An abatement date shall be set forth by the state representative in the report as a specific date, not a number of days. When the abatement period is very short (i.e., five working days or less) and it is uncertain when the employer will receive the report, the abatement date shall be set so as to allow for a mail delay and the agreed-upon abatement time. When abatement is witnessed by the state representative during the inspection. The abatement report shall indicate abated immediately.
The abatement period shall not exceed thirty calendar days, without the written consent of the Department. All available information shall be considered in determining what is a reasonable period. Such considerations may include, but are not limited to, the following:
If, however, the employer contests the hazard identified, the hazard need not be corrected until a final decision is made by the Commissioner.
When an initial abatement date is granted that is in excess of thirty calendar days, the reason shall be documented in the case file.
In situations where an employer appeals either (a) the period set for abatement, or (b) the report itself, the abatement period shall be considered not to have begun until there has been a final determination by the Commissioner of the report and abatement period. In accordance with these regulations, the abatement period begins when the report or a final order of the commissioner is issued. A follow-up inspection of the worksite may be conducted for purposes of determining whether abatement has been achieved within the time period set forth in the report, unless an appeal has been filed. A Failure to Abate Report may be issued on the basis of the state representative's findings. Employers failing to abate hazards identified within the report shall be referred to the appropriate enforcement authority or to the authority having the most responsibility or control over work place safety and health conditions. The employer shall be billed for additional follow-up inspections and reports.
Economic feasibility will only be considered in relating to length of abatement period, not whether abatement shall occur.
230 Neb. Admin. Code, ch. 6, § 003