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OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.
May 28, 1997
Mr. Jai Kundu, Vice President
American Trucking Association
2200 Mill Road
Alexandria, VA 22314-4677
Dear Mr. Kundu:
This is in response to your letter of January 2, in which you asked for additional information on three topics (reporting over-the-road fatalities, refusing entry and employee interviews to an Occupational Safety and Health Administration (OSHA) inspector, and OSHA's policy associated with seat belts on forklift trucks). Please accept our apology for the delay in this response.
We have included your requests in this response for clarity to a third party reader.
We would like further clarification in when a motor carrier must report an over-the-road fatality to OSHA. There continues to be some confusion over this issue, especially since motor carriers also must comply with Department of Transportation regulations governing the recording of accidents.
The enclosed letter to Mr. Flatow of your organization on October 17, 1995, continues to be OSHA's policy concerning reporting fatalities and catastrophes during over-the-road operations.
[This document was edited on 9/1/2004 to strike information that no longer reflects current OSHA policy. Please see the revised Recording and Reporting Occupational Injuries and Illness Requirements (Part 1904)]
Our members would also like to know if you can provide some specific guidance, or at least reference the material where the information can be found, upon when they may refuse entry to an OSHA inspector wishing to inspect facilities or interview employees.
Regarding this topic, an OSHA inspector may be seeking entry into one of your member's establishments either to enforce the Occupational Safety and Health Act of 1970 (OSH Act) or the Surface Transportation Assistance Act (STAA) of 1982. The STAA gives the Secretary of Labor authority to investigate complaints (Section 31105) by truckers, mechanics, freight handlers, and others involved in trucking who believe they have been discharged or discriminated against for protected safety activities.
OSHA's Instruction CPL 02-00-103 [formerly CPL 2.103] Field Inspection Reference Manual (FIRM) provides guidance to field inspectors for enforcement of the OSH Act. The following information has been extracted from this instruction to assist you. The complete document as well as the OSH Act can be accessed from [OSHA's web site at http://www.osha.gov/].
Refusal to Permit Inspection.
Section 8 of the Occupational Safety and Health Act (Act) provides that Compliance Safety and Health Officer (CSHO) may enter without delay and at reasonable times any establishment covered under the Act for the purpose of conducting an inspection. Unless the circumstances constitute a recognized exception to the warrant requirement (i.e., consent, third party consent, plain view, open field, or exigent circumstances) an employer has a right to require that the CSHO seek an inspection warrant prior to entering an establishment and may refuse entry without such a warrant.
Section 8(a)(2) of the Act authorizes the CSHO to question any employee privately during regular working hours in the course of an OSHA inspection. The purpose of such interviews is to obtain whatever information the CSHO deems necessary or useful in carrying out the inspection effectively. The CSHO may consult with any employee who desires to discuss a possible violation under Section 8(f)(2); upon receipt of such information, the CSHO shall investigate the alleged hazard, where possible, and record the findings.
Private interviews may be conducted at any time during an inspection but must be conducted in a reasonable manner.
Although not specific to your inquiry, OSHA has assumed on February 3, 1997 [Secretary's Order 6-96, Dec. 27, 1996 (62 FR 111 (Jan. 2, 1997))], jurisdiction for whistleblower protection under other Federal statutes. A copy of the memorandum for Regional Administrators on this subject is also enclosed.
The members would greatly appreciate any background information on why OSHA has ruled that forklifts shall have seat belts, along with any details on proposed retrofit requirements.
Enclosed are two documents (Oct. 9, 1996, Memorandum for Regional Administrators and Dec. 11, 1996, Letter to Mr. Stuart Flatow) which, we believe, provide the background you are seeking. These policy and guidance documents, along with the American National Standards Institute's standard for powered industrial trucks, reflect the Agency's position concerning seat belts on forklift trucks.
Should you have further questions on this letter please contact [the Office of General Industry Enforcement at (202) 693-1850].
John B. Miles, Jr., Director
[Directorate of Enforcement Programs]