MSHA workplace exams

Has an MSHA inspector talked to you about examining “working places?”

Inspectors have been told to explain a policy update and MSHA’s enforcement intentions regarding evaluating operator compliance with workplace examination requirements. MSHA says good examinations prevent accidents.

Under workplace examination regulations, operators must designate a competent person to examine the workplace. That person must have the abilities and experience to fully perform the examination duty. In addition, the person must examine “working places” for conditions adverse to safety and health.

Such examinations must be made at least once each shift, and prompt action must be initiated to correct adverse conditions. A record of such examinations must be kept for one year, and the record must show who examined what and when. The records must also be provided to inspectors upon request.

In addition, examiners must give immediate notice of possible imminent dangers. Everyone must be withdrawn from imminent danger areas.

MSHA policy

Federal agencies interpret how they will enforce standards. MSHA is now restating what is necessary for effective examinations and is giving notice of what will be evaluated.

If an inspector believes violations should have been found and corrected prior to inspection, enforcement will focus on perceived workplace examination deficiencies. Inspectors will decide whether the examiner was “competent”; whether the required “area” was examined fully; whether the examination was timely made; whether conditions were reported promptly; and whether there was effective follow-up to eliminate unsafe conditions.

As an innovation, MSHA is urging “best practices” even though they are not in the regulations and they are not mandatory. This innovation will have enforcement effects. In evaluating effectiveness of examinations, inspectors cannot help but consider recommended best practices as a standard of care.

Inspectors might think that if operator followed best practices, they would not be finding violations. Nevertheless, primary scrutiny will be on requirements for competency of examiners, thoroughness of area examinations, timeliness and records.

The examiner must have the abilities and experience to be fully able to conduct examinations. For years, operators have routinely required miners working in an area to make safety examinations as part of their work. MSHA’s new policy says it is a best practice for a supervisor to conduct the examinations. MSHA does not rule out hourly employees as examiners, but emphasizes they must be fully qualified to recognize hazards.

Inspectors will evaluate examiner competence when they believe violations could have been found and eliminated prior to inspection, or if violations found on prior inspections are found again in the current inspection. Citations might be issued for deficient examination due to lack of competency of the examiners. Designation of new examiners or providing task training of present examiners may be required to terminate the citation.

What and when?

All “working places” must be examined once each shift. MSHA’s new policy states that a “working place” includes areas where work is performed infrequently.

This got a lot of attention from industry because it sounds like an examination is required even if no one is working in an area. However, MSHA clarified that working places are defined by whether people are working there on a particular shift.

If yes – even though people rarely work there – they must be examined. If no one works in an area that shift – even though people usually work there – it is not considered a working place and need not be examined.

The regulations require working places to be examined “at least once each shift.” That means anytime during the shift, but MSHA says it is a “best practice” to examine at the beginning of the shift (akin to pre-shift examinations in coal mines).
As a practical matter, an examination anytime during a shift is immediately helpful and has overlapping effects, as it also protects subsequent shifts.

Here are three reasons why operators might consider conducting examinations at the start of a shift:

Firstly, an examiner might be more focused and do a better examination at the outset before work produces competing demands.

Secondly, regular examinations at the beginning of each shift would prevent enlarged time gaps in which one shift might examine at the beginning and the next shift examines at the end. It would also avoid inspections being overly close together when the first shift examines at the end and the next shift examines at the beginning.

Thirdly, it would conform to MSHA’s best practices and would likely subject the operator to less criticism.

The regulations require a record of who examined the working place, what was examined and on which shift the examination was conducted. MSHA has repeatedly recognized there is no legal requirement to record what was found.

However, MSHA says it is a best practice to record what was found. Companies vary on whether they record conditions and whether they do so in the record of examinations they maintain for MSHA compliance.

If companies require examiners to log conditions found in their official record of examinations, they need to remember inspectors will check the record. A record of corrective actions must exist where a hazard or violation is identified. Otherwise, it will look to MSHA that the matter was recorded but no action was taken. MSHA cannot issue a violation in the instance of no record of conditions existing, but lack of a record does not conform to best practices and may be suspect to some inspectors.

Take note

A record of corrective actions must exist where a hazard or violation is identified. Otherwise, it will look to MSHA that the matter was recorded but no action was taken.