MOSH Field Operations Manual (FOM)

MOSH Field Operations Manual (FOM)

MOSH Field Operations Manual Revised 2/2013

Department of Labor, Licensing and Regulation, Division of Labor and Industry

MOSH Field Operations Manual

Table of Contents

Chapter I - General Responsibilities and Administrative Procedures

A. Assistant Commissioner for MOSH...... I-1

1. General ...... I-1

2. Responsibilities ...... I-1

3. Specific...... I-1

B. Supervisor of CO/IH...... I-2

1. General ...... I-2

2. Responsibilities...... I-2

3. Communication...... I-3

C. Maryland Occupational Safety and Health Compliance Officer/IndustrialHygienist(CO/IH) I-3

1. Personal Conduct and Activities...... I-3

2. Responsibilities...... I-4

3. Subpoenas Served on CO/IH ...... I-4

4. Testifying in Hearings...... I-5

5. Release of Inspection Records...... I-5

6. Disposition of Inspection Records ...... I-5

7. Correspondence with the Public ...... I-5

8. Inquiries ...... I-6

Chapter II. Compliance Inspection and Investigation Assignments

A. Program Planning...... II-1

1. Purpose...... II-1

2. Primary Consideration...... II-1

B. Inspection/Investigation Types...... II-1

1. Unprogrammed...... II-1

2. Unprogrammed Related...... II-1

3. Programmed...... II-1

4. Programmed Related...... II-1

C. Scope...... II-1

1. Comprehensive...... II-1

2. Partial...... II-1

D. Inspection Selection Criteria...... II-2

1. General Requirements...... II-2

2. Employer Contacts...... II-2

E. Inspection Priorities...... II-3

1. Order of Priority...... II-3

2. Dedication of Resources...... II-3

F. Inspection Scheduling...... II-3

1. Unprogrammed Inspections...... II-3

2. Programmed Inspections...... II-6

3. Special Emphasis Programs...... II-7

Chapter III. General Inspection Procedures

A. CO/IH’s Responsibilities...... III-1

B. Preparation...... III-1

1. General Planning...... III-1

2. Preinspection Planning...... III-1

3. Inspection Materials and Equipment...... III-2

4. Expert Assistance...... III-2

5. Safety and Health Rules of the Employer...... III-2

6. Immunization and Other Special Entrance Requirements...... III-3

7. Personal Security Clearance...... III-3

C. Advance Notice of Inspections...... III-3

1. Policy...... III-3

2. Procedures...... III-5

D. Conduct of the Inspection...... III-6

1. Entry of the Workplace...... III-6

2. Employee Participation...... III-14

3. Opening Conference...... III-14

4. Walk Around Representatives...... III-20

5. Special Situations...... III-21

6. Examination of Record and Posting Requirements...... III-23

7. Walk Around Inspection...... III-25

8. Closing Conference...... III-37

E. Abatement...... III-43

1. Period...... III-43

2. Reasonable Abatement Date...... III-43

3. Abatement Period Exceeding 30 Calendar Days...... III-44

4. Verification of Abatement...... III-44

5. Effect of Contest Upon Abatement Period...... III-45

6. Feasible Administrative, Work Practice and Engineering Controls...... III-46

7. Long-term Abatement Date for Implementation of feasible Engineering

Controls...... III-47

8. Multi-step Abatement...... III-48

9. Petitions for Modification of Abatement Date (PMA)...... III-50

F. Employer Abatement Assistance...... III-53

1. Policy...... III-53

2. Type of Assistance...... III-53

3. Disclaimers...... III-53

4. Procedures...... III-53

G. Informal Conferences...... III-53

1. General...... III-54

2. Procedures...... III-54

H. Follow-up Inspections...... III-56

1. Inspection Procedures...... III-56

2. Failure to Abate...... III-56

3. Reports...... III-57

4. Follow-up Files...... III-57

I. Conduct of Monitoring Inspection...... III-57

1. General...... III-57

2. Procedures...... III-57

3. Assignment...... III-57

Chapter IV. Violations

A. Basis of Violations...... IV-1

1. Standards and Regulations...... IV-1

2. General Duty Requirement...... IV-3

3. Employee Exposure...... IV-11

4. Regulatory Requirements...... IV-13

B. Types of Violations...... IV-13

1. Serious Violations...... IV-13

2. Other-than-Serious Violations...... IV-18

3. Willful Violations...... IV-18

4. Criminal/Willful Violations...... IV-19

5. Repeated Violations...... IV-21

6. De Minimis Violations...... IV-22

C. Health Standard Violations...... IV-23

1. General...... IV-23

2. Citation of Ventilation Standards...... IV-23

3. Violations of the Noise Standard...... IV-24

4. Violations of the Respirator Standard...... IV-26

5. Violations of AirContaminant Standards (29 CFR 1910.1000 Series)...... IV-27

6. Classification of Violations of Air Contaminant Standards...... IV-28

7. Guidelines for Issuing Citations of Air Contaminant Violations...... IV-29

8. Citing Improper Personal Hygiene Practices...... IV-30

9. Classification of Violations for the New Health Standards...... IV-31

Chapter V. Citations Procedures

A. Pre-Citation Consultation...... V-1

1. General...... V-1

2. Procedures...... V-1

B. Writing Citations...... V-1

1. General...... V-1

2. Specific Instructions...... V-2

C. Grouping and Combining of Violations...... V-11

1. Definitions...... V-11

2. Combining...... V-12

3. Grouping...... V-12

4. General Duty Clause Violations...... V-13

5. Serious Violations...... V-13

6. Egregious Violations...... V-13

D. Employer/Employee Responsibilities...... V-13

1. Section S-104(b)(2) of the Act...... V-13

2. Employee Refusal to Comply...... V-13

E. Affirmative Defenses...... V-14

1. Definition...... V-14

2. Burden of Proof...... V-14

3. Explanations...... V-14

F. Issuing Citations - Special Circumstances...... V-15

1. Follow-up Inspections...... V-15

2. Multi-Employer Worksites...... V-15

G. Amending or Withdrawing Citation and Notification of Penalty in Part or

in its Entirety...... V-16

1. Citation Revision Justified...... V-16

2. Citation Revision Not Justified...... V-17

3. Procedures for Amending or Withdrawing Citations...... V-17

H. Settlement of Cases...... V-17

1. General...... V-17

2. Pre-Contest Settlement (Informal Settlement Agreement)...... V-18

3. Post-Contest Settlement (Formal Settlement Agreement)...... V-19

Chapter VI. Penalties

A. Civil Penalties ...... VI-1

1. Type of Violation as a Factor ...... VI-1

2. Serious and Other-than-Serious Violations ...... VI-1

3. Penalty Factors ...... VI-1

B. Penalty Calculation Considerations ...... VI-1

1. Severity Factor ...... VI-1

2. Probability Assessment - WHEN SAMPLES ARE NOT TAKEN ...... VI-2

3. Probability Assessment - WHEN SAMPLES ARE TAKEN ...... VI-2

4. Other Factors ...... VI-3

5. Gravity Rate ...... VI-3

6. Gravity Based Penalty ...... VI-3

C. Penalty Adjustment Factors ...... VI-3

1. Good Faith Adjustment ...... VI-4

2. Good Faith Rating ...... VI-5

3. History ...... VI-5

4. Size ...... VI-5

5. Actual Harm ...... VI-5

6. Egregious Violations ...... VI-6

D. Related Classifications...... VI-6

1. Failure to Correct ...... VI-6

2. Repeated Violations ...... VI-7

3. Willful Violations ...... VI-8

4. Violation of Regulatory Requirements ...... VI-8

E. Criminal Penalties ...... VI-10

Appendix: Penalty Calculation Considerations...... VI-10

Chapter VII. Imminent Danger

A. General ...... VII-1

1. Definition ...... VII-1

2. Requirements ...... VII-1

B. Preinspection Procedures for Handling Imminent Danger Situations ...... VII-1

1. When an Allegation of Imminent Danger is Received by the Field ...... VII-1

2. Technical Considerations ...... VII-2

3. Scheduling...... VII-2

C. Inspection ...... VII-2

1. Scope ...... VII-2

2. Procedures ...... VII-2

3. Elimination of the Imminent Danger ...... VII-3

4. Issuing Notice of Alleged Imminent Danger ...... VII-4

5. Notice Prohibiting Use of Equipment ...... VII-4

6. Report Following Issuance of Imminent Danger Notice or NoticeProhibiting Use of Equipment VII-4

D. Citations and Proposed Penalties ...... VII-5

1. Citations and Penalties ...... VII-5

2. Effect of Court Action ...... VII-5

E. Follow-up Inspection for Imminent Danger ...... VII-5

1. Court Action ...... VII-5

2. No Court Action ...... VII-5

3. Immediate Correction ...... VII-5

F. Removal of Imminent Danger Notice ...... VII-5

G. Follow-up Inspection for Notice Prohibiting Use of Equipment ...... VII-5

H. Removal of Notice Prohibiting Use of Equipment...... VII-5

Chapter VIII. Accident Investigations

A. General ...... VIII-1

B. Purpose ...... VIII-1

C. Definitions ...... VIII-1

1. Fatality ...... VIII-1

2. Catastrophe ...... VIII-1

3. Hospitalization...... VIII-1

D. Processing and Reporting of Accidents for Investigation ...... VIII-1

E. Emergency Response Protocol ...... VIII-2

1. Incident Command System ...... VIII-2

2. Communication ...... VIII-2

3. Incident Supervisor ...... VIII-2

4. MOSH Principal Investigator ...... VIII-3

5. MOSH Support Personnel...... VIII-3

6. CO/IH Duties ...... VIII-3

F. Pre-Investigation Activities...... VIII-4

G. Equipment ...... VIII-4

H. Investigative Procedures ...... VIII-4

1. Define the Scope of the Investigation ...... VIII-4

2. Assign/Select Principal Investigator ...... VIII-5

3. Preliminary Briefing ...... VIII-5

4. Accident Scene ...... VIII-5

5. Conducting Investigative Interviews and Taking Statements ...... VIII-6

I.Reports...... VIII-7

Chapter IX. Complaints and Referrals

A. Complaints ...... IX-1

1. General ...... IX-1

2. Definitions ...... IX-1

3. Receiving Complaints ...... IX-3

4. Evaluating Complaints ...... IX-3

5. Information Needed for Complaint Evaluation ...... IX-4

6. Responding to Complaints Alleging Imminent Danger Conditions...... IX-5

7. Responding to Formal Complaints ...... IX-5

8. Responding to Nonformal Complaints ...... IX-5

9. Scope of Inspection ...... IX-6

10. Procedures ...... IX-7

B. Referrals ...... IX-8

1. General ...... IX-8

2. Definitions ...... IX-8

3. Sources of Referrals ...... IX-8

4. Referral Inspections ...... IX-10

5. Procedures...... IX-10

Chapter X. Discrimination Complaints

A. General ...... X-1

1. Scope...... X-1

2. Agency Policy ...... X-1

3. Time Limitations ...... X-1

4. Program Administration ...... X-1

5. Responsibility of All MOSH Personnel...... X-1

B. Administrative Procedure ...... X-1

1. Filing of Complaint...... X-1

2. Initial Processing and Evaluation ...... X-2

3. Full Investigation ...... X-2

4. Report to the Assistant Commissioner/Authorized Representative...... X-2

5. Determination ...... X-3

6. Closing a Case ...... X-3

C. Investigation ...... X-3

1. CO's Responsibility...... X-3

2. Focus of Investigation ...... X-3

3. Interview of Complainant ...... X-3

4. Full Investigation ...... X-3

D. Final Investigative Report ...... X-4

E. Timely Filing of a Complaint...... X-5

F. Settlement ...... X-5

G. Withdrawal of Complaint ...... X-6

H. Release of Investigation Information...... X-6

Chapter XI. Temporary Labor CampInspections

A. General ...... XI-1

1. Background ...... XI-1

2. Scope ...... XI-1

3. Definitions ...... XI-1

4. Applicability-of Standards ...... XI-1

B. Scheduling ...... XI-2

1. Lists ...... XI-2

2. Inspections ...... XI-2

3. Exemptions and Limitations ...... XI-2

4. Accidents and Complaints ...... XI-2

C. Enforcement of Temporary Labor CampStandards...... XI-2

1. Choice of Standards ...... XI-2

2. Citations for Violations of Standards ...... XI-3

D. Inspection Procedures ...... XI-3

1. Worker Occupied Housing ...... XI-3

2. Primary Concern ...... XI-4

3. Dimensions ...... XI-4

E. Documentation for Migrant Housing Inspections...... XI-4

Chapter XII. Construction

A. General COIIH Responsibilities ...... XII-1

B. Standards ...... XII-1

1. Applicability ...... XII-1

2. Enforcement ...... XII-1

C. Employer Workplace ...... XII-1

1. General ...... XII-1

2. Administrative Convenience ...... XII-1

D. Advance Notice ...... XII-1

1. General ...... XII-1

2. Authorized ...... XII-1

E. Entry of the Workplace ...... XII-2

1. Severe Weather Conditions ...... XII-2

2. Right to Enter--Refusal to Permit Inspection ...... XII-2

3. Opening Conference ...... XII-2

4. Selecting Employer and Employee Representatives...... XII-3

F. Closing Conference ...... XII-3

1. General ...... XII-3

2. Contractor Names and Addresses ...... XII-4

G. Citations and Penalties ...... XII-4

1. Mailing ...... XII-4

2. Where to Post Citations...... XII-4

Chapter XIII. Disclosure of Documents

A. Policy ...... XIII-1

B. Procedure ...... XIII-1

C. Exceptions to Procedure...... XIII-1

Chapter XIV. Voluntary Protection Programs

A. Purpose ...... XIV-1

B. Scope ...... XIV-1

C. Authority...... XIV-1

D. Roles and Responsibilities ...... XIV-1

1. Commissioner ...... XIV-1

2. VPP Coordinator ...... XIV-1

E. VPP Application Process...... XIV-2

1. Review of Applications ...... XIV-2

2. Decision to Conduct Pre-approval On-site Review ...... XIV-2

3. Contents of Application ...... XIV-2

F. On-site Evaluation ...... XIV-7

1. Determination ...... XIV-7

2. Review Team ...... XIV-7

3. On-site Visit ...... XIV-7

4. Preparation and Submittal of Findings ...... XIV-7

5. Closing Conference ...... XIV-8

G. Post-Approval Process ...... XIV-8

H. Effect of VPP on Unprogramed Activity ...... XIV-8

1. Complaints Filed Against a VPP Participant...... XIV-8

2. Accidents...... XIV-9

1

MOSH Field Operations Manual Revised 2/2013

Department of Labor, Licensing and Regulation, Division of Labor and Industry

Chapter I - General Responsibilities and Administrative Procedures - MOSH Field Operations Manual - Maryland Occupational Safety and Health (MOSH)

1. Assistant Commissioner for MOSH.

1. General. It is the overall responsibility of the Assistant Commissioner for MOSH or his/her authorized representative (Assistant Commissioner/Authorized Representative) to carry out managerial, administrative and operational objectives within the MOSH Compliance Program. This includes administrative and technical support for the Maryland Occupational Safety and Health Compliance Officers and Industrial Hygienists (CO/IH).
   
2. Responsibilities. The Assistant Commissioner/Authorized Representative shall carry out these responsibilities under the authority and direction of the Commissioner and follow current MOSH Instructions and Memoranda, where applicable, in performing administrative and operational duties. These duties may be subdelegated, as appropriate, to MOSH safety and/or health supervisors. The MOSH Field Operations Manual (FOM), augmented by MOSH Field Directives, provides guidance for the conduct of most compliance operations activities. Interpretation and clarification as well as additional guidance shall be obtained from or through the Commissioner or the Office of the Attorney General.
   
3. Specific. In fulfilling the responsibilities as outlined in the preceding paragraph, the Assistant Commissioner/Authorized Representative has a wide range of more specific duties, including, but not limited to, the following:
4. Ensuring that inspections are scheduled within the framework of the State Plan;
   
5. Reviewing inspection reports from CO/IH and processing citations and notifications of proposed penalties, when appropriate;
   
6. Recommending modification of citations, proposed penalties and abatement dates, when appropriate and when requested within the allowable time and in accordance with established procedures;
   
7. Determining the validity of complaints and referrals and taking appropriate action, including investigation thereof;
   
8. Initiating imminent danger and accident investigations;
   
9. Arranging for the assistance of experts, as necessary, for inspections and investigations;
   
10. Coordinating special emphasis programs as necessary to ensure the success of defined goals;
    
11. Reviewing and acting on requests for modification of abatement date;
    
12. Ensuring that informal conferences with employers and employees regarding inspections of their workplaces are held in accordance with the Code of Maryland Regulations, and reviewing and approving proposed informal settlements;
    
13. Coordinating special enforcement problems (e.g., failures to abate, willful violations, refusals of entry, restraining orders, etc.) with the Office of the Attorney General;
    
14. Initiating the debt collection process when a MOSH penalty becomes a final order, and coordinating collection activities with the Maryland Central Collection Unit when files are forwarded to that office;
    
15. Coordinating review and monitoring of employer progress towards abatement of hazards and providing appropriate guidance as necessary;
    
16. Developing, scheduling and/or executing formalized training to upgrade the knowledge and skills of CO/IH staff;
    
17. Directing and coordinating the completion of IMIS information by all MOSH compliance personnel;
    
18. Coordinating with the Office of the Attorney General on contested cases, including potential formal settlements; helping arrange for the assistance of expert or other witnesses; personally testifying, as appropriate, regarding the scheduling of inspections and the issuance of citations and proposed penalties;
    
19. Directing field activities of enforcement personnel;
    
20. Responding to requests for information pursuant to the Maryland Public Information Act (MPIA) in accordance with current guidelines; and
    
21. Developing and implementing a comprehensive safety and health program for MOSH personnel, as appropriate.

1. Supervisor of CO/IH.

1. General. The MOSH Supervisor has overall management responsibility for all resources in an assigned area.
   
2. Responsibilities. The MOSH Supervisor exercises responsibility and authority under the Assistant Commissioner/Authorized Representative. The following are among the specific duties of the MOSH Supervisor:
3. Reviewing and assessing the work products of CO/IHs under supervision for technical adequacy, applying the policies and procedures in effect within the agency and accepting, amending, or rejecting them as appropriate;
   
4. Evaluating the performance of each CO/IH and the programs under supervision;
   
5. Ensuring that each CO/IH conducts himself or herself in a manner that conforms to recognized safety and health practices and limits any hazard exposure to prevent injury or adverse health effect.
   
6. Advising, counseling, and instructing each CO/IH under supervision on MOSH policies and procedures and on administrative matters;
   
7. Ensuring that CO/IH have available all report forms and handouts in sufficient quantity for use in inspections;
   
8. Ensuring that necessary personal protective equipment is available for use and in serviceable condition; that test equipment required for inspections is properly calibrated and ready for use when needed; and that each CO/IH is trained in the field use of such equipment;
   
9. Developing, scheduling and/or executing informal training to upgrade the knowledge and skills of CO/IH staff under supervision;
   
10. Evaluating incoming complaints and referrals, establishing priorities among inspection categories, and scheduling programmed and unprogrammed inspections in accordance with MOSH procedures;
    
11. Recommending and initiating work methods, organizational alignment, and the structure of work to achieve optimum utilization of available resources;
    
12. Ensuring that inspection activities comply with appropriate directives; and
    
13. Holding informal conferences with employers and employees regarding inspections of their workplaces and recommending informal settlements of appropriate cases.
14. Communication. Effective and efficient communication is an important element of a MOSH Supervisor's responsibility. They shall ensure that the views and expressions of the program as a whole are not compromised.

1. Maryland Occupational Safety and Health Compliance Officer/Industrial Hygienist (CO/IH).

1. Personal Conduct and Activities. All CO/IH must adhere to the rules of conduct prescribed for State employees in general. They must also adhere to certain rules, regulations and requirements that apply particularly to them as inspectors. The following sections set forth certain regulations and requirements which are particularly concerned with the conduct of CO/IH.
   
2. Courtesy to the Public. The Division of Labor and Industry emphasizes that the proper and courteous discharge of duties and responsibilities by staff is essential to the enforcement and administration of the MOSH Act (the Act). The CO/IH is the primary representative of the Department of Labor, Licensing and Regulation and the Division of Labor and Industry in public relations. The ultimate success of the compliance program depends largely upon the CO/IH's knowledge and understanding of the Act and regulations, as well as upon their courtesy and tact in dealing with employers and employees. CO/IHs represent State government and must at all times conduct themselves in such a manner as to reflect that responsibility. They must never allow themselves to indulge in conduct or statements unbecoming their position, even when such conduct or statements are invited or incited by those with whom they are dealing.
   
3. Acceptance of Gratuities. It is illegal for a State official or an employee to solicit any gift. It shall be considered unethical and is illegal for any State official or employee to accept, seek, solicit, or take directly or indirectly, any gift or benefit of more than insignificant economic value, including money, any service, gratuity, fee, property, loan, promise or anything else of more than insignificant economic value from or on behalf of any individual or entity who is doing or is seeking to do business of any kind with the State or whose activities are regulated or controlled in any way by the State. No gift shall be accepted under circumstances from which the official or employee could reasonably have inferred that the gift or benefit was intended to influence or gives the appearance of influencing such official or employee in the performance of official duties and under circumstances from which it is reasonable to assume that the official or employee would be influenced in the performance of official duties. Additional guidance shall be provided by the Maryland Public Ethics Law.
   
4. Responsibilities. The CO/IHs responsibilities are necessarily extensive. The primary responsibility is the conduct of effective inspections to determine whether employers are: (1) providing employment and a place of employment that are safe and healthful and free from each recognized hazard that is causing or likely to cause death or serious physical harm to the employee, and (2) complying with safety and health standards and regulations adopted by the Commissioner. The conduct of effective inspections requires identification, professional evaluation, and accurate reporting of safety and health conditions and practices. Inspections may vary considerably in scope and detail, depending upon the circumstances in each case.
   
5. Preparation. Preparing for an inspection is an important part of a CO/IHs professional activity. Once an establishment has been assigned for inspection, the CO/IH shall review the types of conditions likely to be encountered, including the work processes, equipment and machinery involved, and the hazards likely to be associated with them. All available sources of information shall be used to bring about as complete a familiarity with the establishment as is practicable. The quality of the inspection will be judged by employer and employee alike based on the CO/IH's knowledge of, and familiarity with, the work done and the problems associated with it.