Introduction

The name's O'Shay, OSHA CSHO. Nick O'Shay. I'm an OSHA CSHO (Compliance Safety and Health Officer) - an inspector. The guys in the Area Office call me the "Old Man" and "Citation Nick" because I've been inspecting workplaces for 26 years.

My message to you employers out there: Play by the rules, and we can be friends. Cut corners on safety, and I'll be your worst nightmare. Citation Nick knows all the tricks. I'll find your dirty little secrets; I'll make sure you clean up the mess; and I'll give you a souvenir of the experience: A big fat fine.

I've seen a lot in 26 years. One day, I'm going to put it all in a book - the definitive book about OSHA inspections. I'm going to tell employers how the system works and how to deal with OSHA inspectors. But the memory banks aren't what they used to be. So I decided to start keeping this diary of my inspection adventures.

October 17, 2005:

9:45 AM

I'm seeing the dregs on my third cup of java when the pager beeps. It's Donna Tellow, my AAD. [Editor's Note: An AAD or Assistant Area Director, has first level supervisory authority over inspectors in the Area Office].

"What's up, Donna?"

"We just got a call from a nurse at Shady Grove Hospital. She says she's seen open cans of radioactive isotopes from radiology in the lounge area refrigerator - where employees keep their lunches."

"C'mon, Donna. That sounds a bit far fetched."

"I know. And it's an informal complaint. But the source is credible and the complaint is specific. And, if it's true, it's serious. So Bill and I [Editor's Note: Bill is Bill Beau, the Area Director. The A.D. is in overall charge of inspection operations and citations] want you to drop everything and do an imminent danger inspection of Shady Grove."

11:45 AM

I pull into Shady Grove. Donna was right. This complaint is full of specifics. I know exactly where I'm going and what I'm looking for.

But first the formalities. I ask for the officer in charge. When the suit shows up, I introduce myself, present my credentials and ask to go to the radiology department.

Now comes the moment of truth. Is the suit - I think he says his name is Gates - gonna make a stink and ask for a warrant? That's usually an employer's right. But when there's an imminent danger situation, I don't need one. Still, I don't want to have to go though all of this with Gates.

Luckily, I don't have to. He's cooperative. He just asks if he can have Dr. Jones, the head of radiology, accompany me during the inspection. I don't object. That's his right.

12:04 PM

Gates and I ride up to radiology on the third floor. There's Jones waiting for us. Terrified. Unprepared. And desperate to please.

"Inspector O'Shay, delighted to see you," he beams.

"Yeah, right," I think.

"Is there some kind of problem?"

"We'll see," I answer.

Gates, Jones and I sit down and hold the opening conference. [Editor's Note: The opening conference is the first formal stage of an OSHA inspection]. I tell them why I'm here and what I'm looking for. I explain their rights and what to expect.

12:37 PM

We proceed to the lounge. I walk into the kitchen area and open the refrigerator. They're right on the top shelf. Two vials bearing radioactive labels secured by nothing but a piece of tin foil and a rubber band. Surrounded by brown lunch bags, yogurt containers and open bottles of spring water.

"What's this," I ask Jones.

"Oh dear. These are radioactive isotopes. We inject them into cancer patients to diagnose tumors."

Now I bait the hook. "Do they belong in the lunch room?"

Jones bites and bites hard. "Certainly not. They're a serious contamination risk."

Today's Lesson

I want you all to listen carefully to the next words out of Jones's mouth:

"We have special refrigeration units for these materials. I've warned the nurses at least three times never to store them in the lunchroom refrigerator."

Dr. Jones has just committed a cardinal sin. He's confessed to knowing about a safety hazard.

Employers sometimes make these confessions when I point to a violation. They want to score points. What they're trying to tell me is "I'm a good guy, I care about safety and I'm just as frustrated as you about this."

Big mistake!

An employer should never ever make this kind of a confession to an OSHA inspector. You don't get any points for this. On the contrary, you get your butt bit off.

You see, not all OSHA violations are the same. The worst kinds are the ones we call willful. A willful violation is when the employer knew of the problem but didn't do anything to correct it. So when you tell me you knew about a violation, you're basically telling me you committed a willful violation.

And you pay for it. Willful violations carry the heaviest fines - $500,000 for a company and $250,000 for an individual and up to 6 months in jail if there's a fatality. Willful violations also do the most damage to your reputation.

I was already going to cite Shady Grove for serious OSHA violations. But as soon as I hear Dr. Jones say that he knew of at least three prior instances of isotopes being kept in the lunchroom fridge, I knew I had a willful violation on my hands. Jones should have kept his mouth shut and he'd have spared the hospital a boatload of trouble.

Man, I love my job!

Sincerely,

Nick O'Shay

The Canadian Perspective

In Canada, there are 14 different OHS inspection systems. But the rights and procedures involved are very similar. Moreover, the Canadian system closely resembles the OSHA system. So most of what Inspector O'Shay has to say works in Canada.

For example, Canadian employers should also refrain from confessing to OHS inspectors that they knew of safety offences. As does OSHA, Canadian OHS laws and prosecutorial guidelines differentiate between willful and other violations.

Saying that you knew of a safety violation but didn't fix it also undermines your capacity to prove that you showed due diligence. And, in extreme cases, it can even help a prosecutor show that you acted with "wanton and reckless disregard" for life and safety in a C-45 prosecution.

HEALTH & SAFETY LAW TRAVELOGUE

INDIA

Norm Keith - bio

By Norm Keith, B.A., LL.B., CRSP

India is one of the few countries where workplace health and safety rights are enshrined in the national constitution. Article 24, for example, prohibits the employment of children under age 14 in a factory, mine or other hazardous job. Article 42 says the "state shall make provision for securing just and humane conditions of work and maternity relief."

Unfortunately, the constitutional ideals do not seem to have seeped into actual practice. Occupational injuries in India are grossly underreported, according to the International Labour Organization. But while reliable statistics aren't available, workers in India and South Asia are thought to suffer injuries at relatively high rates.

Health & Safety Profile: India

• Population: 1.1 billion
• Labor Force: 472 million
• Total Accidents: Not available
• Total Fatalities: Not available
• Life Expectancy: 63.99 years
• GDP per Capita: $2,900
• Government Type: Federal Democratic Republic
• OHS Legislation: No comprehensive OHS statute. Factories Act, Dock Workers' Act. Mines Act. Regulatory enforcement is minimal and there's no criminal enforcement.

About Norm Keith

Norm Keith, BA, LL.B., CRSP, is a partner in Gowlings' Employment and Labour Group, specializing in occupational health and safety law, workers' compensation, privacy law, labour and employment law, and alternate dispute resolution. He has extensive experience with wrongful dismissal, human rights, labour arbitration, judicial reviews, Ontario Labour Relation Board cases and fiduciary duty lawsuits.

To view his bio, click here. You can contact Norm by email here or by phone at (416) 862-5699.

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