Program Monitoring Inspections

(1) Authority for Program Monitoring Inspections. T.C.A. §§50-3-906 and 50-3-911 provide authority for the Commissioner to conduct inspections under T.C.A. §50-3-301. (2) Right of Entry. T.C.A. §50-3-301 states, “In order to carry out the purposes of this chapter, the Commissioner of Labor and Workforce Development, upon presenting appropriate credentials to the owner, operator or agent in charge, is authorized to: (a) Enter without delay and at any reasonable time any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and (b) Inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, processes, structures, machines, apparatus, devices, equipment and materials therein, and question privately any such employer, owner, operator, agent or employee.” In accordance with Rule 0800-1-3-.05(2) of Chapter 0800-1-3, the Commissioner is authorized to review records required by the Act. (3) Conduct of Inspections. The Commissioner has delegated authority to conduct monitoring inspections of state agency and local government occupational safety and health programs to occupational safety specialists, industrial hygienists, and environmental engineers of the Public Sector Section, Division of Occupational Safety and Health, herein referred to as public sector safety and health officers (PSSHOs). Monitoring inspections shall be conducted by PSSHOs in accordance with the following: (a) Subject to the provisions of paragraph (2) of this rule, monitoring inspections shall take place at such times and in such places of employment as the Commissioner may direct. Monitoring inspections of each employer will be conducted at least biennially and shall cover, at a minimum, inspection of at least one (1) workplace in at least two (2) departments or establishments. At the beginning of a monitoring inspection, the PSSHO shall present his credentials to the chief executive officer, the designated safety and health official, or the agent in charge at the establishment; explain the nature, purpose, and scope of the inspection and the records to be reviewed. (b) PSSHOs shall have authority to take environmental samples, take or obtain photographs, employ other reasonable investigative techniques, and question privately any employer, agent or employee of an establishment. As used herein, the term “employ other reasonable investigative techniques” includes, but is not limited to, the use of devices to measure employee exposures and the attachment of personal sampling equipment such as dosimeters, pumps, badges and other similar devices to employees in order to monitor their exposures. (c) In taking photographs and samples, the PSSHOs shall take reasonable precautions to insure that such actions with flash, spark-producing or other equipment will not be hazardous. PSSHOs shall comply with all employer safety and health rules and practices at the establishment, and they shall wear and use appropriate protective clothing and equipment. (d) The conduct of monitoring inspections shall be such as to preclude unreasonable disruption of the operations of the employer’s establishment. (e) At the conclusion of a monitoring inspection, the PSSHO shall confer with the chief executive officer, the designated safety and health official, or a representative of either or both, and informally advise him of any apparent safety or health violations discovered during the inspection. During such conference, the employer shall be afforded an opportunity to bring to the attention of the PSSHO any pertinent information regarding conditions in the workplace. SAFETY AND HEALTH PROVISIONS FOR THE PUBLIC SECTOR CHAPTER 0800-1-5 (4) Representatives of Employers and Employees. (a) PSSHOs shall be in charge of monitoring inspections and questioning of persons. A representative of the employer and an authorized representative of employees shall be given an opportunity to accompany the PSSHO during the physical inspection of any workplace for the purpose of aiding such inspection. A PSSHO may permit additional employer representatives and additional authorized representatives of employees to accompany him where he determines that such additional representatives will further aid the inspection. A different employer and/or employee representative may accompany the PSSHO during each different phase of an inspection if this will not interfere with the conduct of the inspection. (b) Normally the designated safety and health official will be the representative of the employer. The PSSHO shall have authority, however, to resolve all disputes as to who is the authorized representative of the employer and employees for the purposes of this rule. If there is no authorized representative(s) of employees or if the PSSHO is unable to determine with reasonable certainty who is such representative, he shall consult with a reasonable number of employees concerning matters of safety and health in the workplace. (c) PSSHOs are authorized to deny the right of accompaniment under this rule to any person whose conduct interferes with a fair and orderly inspection. (5) Consultation with Employees. PSSHOs may consult with employees concerning matters of occupational safety and health to the extent they deem necessary to conduct an effective and thorough inspection. During the course of a monitoring inspection, any employee shall be afforded an opportunity to bring any violation of the Act which he has reason to believe exists in the workplace to the attention of the PSSHO. (6) Objection to Inspection. Upon a refusal to permit a PSSHO to inspect, review records, or permit a representative of employees to accompany the PSSHO during the physical inspection of any workplace, the PSSHO shall terminate the inspection or confine the inspection to areas in which no objection is raised. The PSSHO shall immediately report such refusal and the reason(s) therefor to the Manager of Public Sector Operations, Administrator, and/or the Commissioner. Should entry be denied, the Manager of Public Sector Operations will report to the Administrator and Commissioner who may then proceed under the provisions of Rule 0800-1-5-.18.