What is OSHA up to on Wisconsin dairies?

Maybe you’ve heard the rumors recently about OSHA inspections on Wisconsin dairies.  We have too—so we’d like to provide some information about why that’s happening, and what dairy producers can do to be prepared and proactive on the topic of workplace health and safety.

As you are probably aware, Occupational Safety and Health Administration (OSHA) is the federal government agency responsible for making and enforcing rules to keep workers safe and healthy on the job.  As part of its enforcement function, OSHA can inspect workplaces based on specific concerns or general risks in high-hazard industries, such as dairy farming.

The dairy industry has changed dramatically in recent decades, and Wisconsin is no exception.  Wisconsin dairies continue to employ more workers and more non-family members to meet the demands of growing herd sizes and increasing competition for productivity and efficiency.  Despite the industry’s best efforts, about 10% of Wisconsin’s annual employment-related fatalities in recent years have unfortunately occurred on dairy farms.

As a result, OSHA is currently operating a Local Emphasis Program (LEP) for Wisconsin dairy farms, which means that OSHA officers are systematically inspecting dairy operations throughout the state.  The current LEP is active from October 2016 through September 2017.  The LEP’s purpose is to address these common hazard areas:

• Manure storage facilities and collection structures;
• Animal handling, worker positioning, and needlestick prevention;
• Electrical systems;
• Skid-steer loader operation;
• Tractor operation;
• Guarding of power take-offs (PTOs);
• Guarding of other power transmission and functional components;
• Hazardous energy control while servicing equipment;
• Chemical hazard communication;
• Confined spaces including vertical silos and other storage containers;
• Horizontal bunker silos; and
• Noise

So what does the LEP mean for you and your farm?  As a practical matter, it means that OSHA currently considers every Wisconsin dairy as a potentially high-risk workplace, so anyone could be targeted for inspected with or without a specific reason.

Is my farm exempt from OSHA?

            OSHA exemption for certain small farms continues to be an area that causes confusion.  In order to be exempt, your farm must meet both of the following criteria:  (1) you have had 10 or fewer employees at all times in the past 12 months, and (2) you have not had a “temporary labor camp” within the past 12 months.

A few things to note here:  First, immediate family members of the employer are not counted when determining whether the farm has 10 or fewer workers.  Second, the exemption rule looks at the total employees of the business entity, not just the physical site.  Third, “temporary labor camp” means that you have provided on-site housing for seasonal or short-term workers and that living on site is required or practically essential to employment (“temporary” refers to the employment, not necessarily the living quarters).  If an OSHA officer comes to inspect your farm and you believe you meet the requirements for the exemption, state that you believe you are exempt and explain why.  If the officer insists despite your explanation, contact an attorney.

However, even if you are currently exempt, it is still a good idea to keep an eye on and follow OSHA rules.  In case you no longer qualify for the exemption at some point in the future, or in case something goes wrong, you will rest easier knowing that you are applying best practices to ensure a safe working environment.

Does OSHA need a warrant to inspect my farm?

            The simple answer is yes, you can always deny entry to an OSHA officer who shows up without a warrant.  However, know that the officer will most likely be able to obtain a warrant and eventually return to complete the inspection, whether it’s hours, days, weeks or months later.  As an alternative, you have the option of allowing the unexpected inspection, and the OSHA officer may look favorably on you for doing so.  The benefits of postponing an inspection are probably obvious: you will have time to consult an attorney or other advisor, organize your records, prep your management team, and double-check your safety protocols.  However, it’s possible that demanding a warrant will ultimately result in a more aggressive inspection or harsher citations.

In short, you always have the right to demand a warrant (unless there is an active emergency), but it’s your call as an employer and business owner whether you want to exercise that right.  If you are confident that your workplace is in decent shape, you may choose to go ahead with a warrantless inspection.  But in many cases, you will benefit from postponing the inspection and demanding a warrant—it’s your constitutional right to do so.  If you decide to require a warrant, simply and politely inform OSHA you have received legal advice that no inspection should be done without a warrant.

How to handle a visit from OSHA

Unless you meet the narrow exception described above (no more than 10 employees and no temporary labor camps within 12 months), OSHA can enter and inspect your farm at any time during regular working hours or at “other reasonable times.”  They are not required to call ahead or give advance notice, but as discussed above, you have the right to demand a warrant.  While on site, OSHA officers are authorized to inspect your physical premises including machinery, tools, equipment, and other materials.  They may also inspect your documents and records related to worker safety and health.  An OSHA officer may speak with any employee or the employer, and may require a private interview.   Employees may also request to meet privately with the OSHA officer, and must be permitted to observe and participate in the inspection if they wish.  Be mindful that OSHA is likely to share information regarding your employees with other government agencies such as the Department of Labor, the Equal Employment Opportunity Commission, and the National Labor Relations Board.

With that in mind, here are a few things you should do if OSHA comes to call:

1. Be polite and professional. 
2. Ask to see a warrant. See the discussion above about the pros and cons of demanding a warrant.  If and when an OSHA officer presents a warrant, you should make a copy of it.  The warrant should state the scope and purpose of the inspection.  Read that part of the warrant out loud so the officer knows you have seen it.  The officer should limit the inspection to relevant areas and items.  Because of the current LEP, you might see a warrant with a broad scope and purpose because OSHA has identified several risk areas that apply to all Wisconsin dairies.  If you have legal counsel, send a copy of the warrant to him or her as soon as possible to review the scope of OSHA’s inspection authority on your farm.
3. Ask to see the officer’s credentials. If the credentials seem questionable to you, or if you have other concerns about the nature of the inspection, call your area OSHA director to verify whether you are required to cooperate:
   1. Appleton Area  (920)734-4521
   2. Madison Area (608) 441-5388
   3. Eau Claire Area (715) 832-9019
   4. Milwaukee Area   (414) 297-3315
4. Ask about the reason for the inspection. It might be due to a complaint or referral, it might be part of an OSHA inspection program such as the LEP referenced above, or it could be for some other reason.  If the officer says that there has been a formal complaint or referral, ask for a copy.  The officer is supposed to provide you a copy of the complaint or referral, but is not required to disclose the source of the complaint.  Remember that the law protects a worker’s right to report safety violations, and you must not retaliate in any way if you know or suspect that one of your employees made a complaint.  (Retaliation includes any adverse employment consequences such as firing or laying off, blacklisting, demotion, denying overtime or promotions, denying benefits, and threats or intimidation of any kind.)
5. Take detailed notes about everything the officer says and does from the moment he or she arrives, and everything that goes on during the inspection. If possible, make photocopies of any documents that the officer shows you.  Take photographs throughout the inspection, mimicking every photo the officer takes and more.  You will want to have a record of exactly what he or she saw.
6. Accompany the officer on the walk-around. If you feel that another member of your farm management team or anyone responsible for aspects of your safety and health protocols could be helpful, include that person in the walk-around.  You may propose or suggest a route, but ultimately the officer may take any route he or she chooses.  If the officer points out an apparent violation that can be corrected immediately, do so.  Note that a designated employee representative may also be invited to participate in the walk-around.
7. Closing conference. When the walk-around is finished, ask the officer to explain the results of the inspection.  Ask what you can expect in terms of follow-up or next steps, and what the timeline may be.
8.  If you have questions or concerns following the inspection, contact Rinke Noonan or another law office.

Be proactive

            Regardless of OSHA’s rules and enforcement programs, it goes without saying that every employer has an ethical obligation to provide a workplace safe from known hazards.  Here are a few steps you can take:

1. Document your safety and health program. The Center for Dairy Farm Safety at UW River Falls provides training and materials to help farm owners and managers prepare customized programs to improve workplace safety and comply with OSHA rules.  A comprehensive safety and health program includes hazard identification and risk assessment, protocols for orientation and ongoing training of employees, labeling of known hazards in the workplace, tracking and reporting of work-related injuries and illnesses, maintenance of equipment and machinery, and other preventive measures.
2.  Consider taking advantage of OSHA’s free safety and health consultation program. This program is completely separate from OSHA’s inspection efforts under the LEP and can be used to learn more about potential hazards in your dairy operation as well as improve any safety programs that you might already have in place.  In some instances, you may be able to qualify for a one-year exemption from routine OSHA inspections. Dairy operations that request a voluntary inspection through the program can be assured that the consultation is confidential and will not be reported to OSHA’s inspection staff. Further, during a voluntary inspection OSHA will not issue any citations or penalties so long as you timely correct serious job safety and health hazards that might be discovered. You can learn more about OSHA’s voluntary inspection program here.
3. If you have questions or concerns about your past or future contact with OSHA, contact Rinke Noonan or another law office.

©2017 Rinke Noonan