Chapter 8

 

Consultation Program

 

Section 1. Purpose and Scope.

 

(a) Authority and responsibility for Consultation is provided in Section 27-11-102(a)(ii) and (iii) and Section 27-11-105(a)(ii) and (vii) of the Act.

 

(b) The Department shall provide Consultation services.

 

(c) Consultation is charged with the responsibility of providing technical assistance to all

 industries, businesses, employees, employee groups, associations, state and local governments, establishments, agencies and departments, by assisting them in voluntary compliance with the rules, regulations and standards promulgated under the Act, in order to provide all working men and women in Wyoming with a safe and healthful place of employment, free from recognized hazards. The overall goal is to prevent injuries and illnesses resulting from exposure to hazardous workplace conditions and work practices. Consultation will be provided in the following areas.

 

(i) Providing research to promote accident prevention and occupational disease prevention programs;

 

(ii) Providing consultative, educational assistance, and safety training;

 

(iii) Providing courtesy inspections to industries, businesses, state and local government agencies and departments as requested in writing;

 

(iv) Providing recognition and exemption programs as incentives to employers to develop and improve their workplace safety and health management system.

 

(d) Safety and health consultation services will be provided to employers at no cost to assist  them in establishing effective occupational safety and health programs for providing workplaces which are safe and healthful. The principal assistance will be provided at the employer=s worksite, but off-site assistance may also be provided.   Assistance may include education and training of the employer, supervisors, and employees as needed to make the employer self-sufficient in ensuring safe and healthful work and working conditions.

 

(e) Onsite consultation will be conducted independent of enforcement activity and the discovery of hazards will not mandate citations or penalties, nor initiate enforcement activity. If  the employer fails to eliminate identified hazards within the established time frames, then the matter will be referred for enforcement action.  While utilizing consultation service, the employer continues to have a statutory obligation to provide a safe and healthful work environment for employees.


 

(f) An employer=s correction of hazards identified by the consultant during a comprehensive workplace survey, implementation of certain core elements of an effective safety and health program, and commitment to the completion of other matters may serve as the basis for the employer=s participation in Consultation=s recognition and exemption programs.

 

(g) Consultation may include services to employers on occupational safety and health issues by telephone, written correspondence, and at locations other than the employer=s worksite, such as the consultation project office.  It may include training and education.

 

(h) Consultation will encourage employers to request consultative assistance and will promote its consultative services through various avenues of publicity available to Consultation.

 

Section 2.  Requests and Scheduling For Onsite Consultation.

 

(a) An onsite consultative visit will be provided upon the written request of the employer, and shall not result from the enforcement of any right of entry under state law.

 

(b) When making a request, an employer shall include all working conditions at the worksite and the employer=s entire safety and health program. However, the employer may request a more limited scope by indicating working conditions, hazards, or situations on which the onsite consultation will be focused. When such limited requests are made, the consultant will limit review and provide assistance only with respect to those working conditions, hazards, or situations specified; except that if the consultant observes hazards which are outside the scope of the request, the consultant must treat such hazards as though they were within the scope of the request.

 

(c) Employers may request onsite consultation to assist in the abatement of hazards cited during an enforcement inspection. However, an onsite consultative visit may not take place after an inspection until the conditions set forth in Section 4(b)(2) of this Chapter have been met.

 

(d) Scheduling priority. Priority shall be assigned to smaller businesses which are in higher hazard industries or which have the most hazardous conditions at issue in the request.

 

Section 3.  Conduct of a Visit.

 


(a) Format. An initial onsite consultative visit will consist of an opening conference, an examination of those aspects of the employer=s safety and health program which relate to the scope of the visit, a walk through of the workplace, and a closing conference. It may also include training and education for employers and employees.  The visit shall be followed by a written report to the employer. Additional visits may be conducted at the employer=s request to provide needed education and training, assistance with the employer=s safety and health program, technical assistance in the correction of hazards, or as necessary to verify the correction of serious hazards identified during previous visits.

 

(b) Employee participation.

 

(i) The consultant shall retain the right to confer with a reasonable number of employees, or employee representative, during the course of the visit in order to identify and judge the nature and extent of particular hazards within the scope of the employer=s request, and to evaluate the employer=s safety and health program. The employer is encouraged to allow employee participation to the fullest extent practicable.

 

(ii) In addition, an employee or representative may be afforded an opportunity to accompany the consultant and the employer=s representative during the physical inspection of the workplace.

 

(iii) The consultant is authorized to deny the right to accompany under this section to any person whose conduct interferes with the orderly conduct of the visit.

 

(c) Onsite activity.

 

(i) The onsite consultative visit will focus primarily on those areas, conditions, or hazards on which the employer has requested assistance. An employer may expand or reduce the scope of the request at any time during the onsite visit.  In all cases, the employer remains obligated to correct those serious hazards which are identified during the visit.

 

(ii) Within the scope of the employer=s request, consultants shall review the employer=s safety and health program and provide advice to make such programs more effective.

 

(iii) Consultants shall identify and provide advice on correction of those hazards observed in the workplace during the onsite visit. This advice shall include basic information indicating the approaches, means, techniques, and other appropriate items commonly used to eliminate or control such hazards. The consultants may also advise the employers of additional sources of assistance.  The consultant shall conduct sampling and testing, with subsequent analyses, as may be necessary to confirm the existence of safety and health hazards.

 

(iv) When a hazard is identified in the workplace, the consultant shall indicate to the employer the consultant=s best judgment as to whether the situation would be classified as a serious or other-than-serious hazard.

 


(v) For serious hazards, the consultant will assist the employer in developing a specific plan to correct the hazard, affording the employer a reasonable period of time to complete the necessary corrective action.

 

(vi) As a condition for receiving the consultation service, the employer must agree to post the List of Hazards accompanying the consultant=s written report, and to notify affected employees when hazards are corrected. When received, the List of Hazards must be posted, unedited, in a prominent place where it is readily observable by all affected employees for three working days, or until the hazards are corrected, whichever is later.  Compliance will not schedule a compliance inspection in response to a complaint based upon a posted List of Hazards unless the employer fails to meet his obligations under paragraph (e) of this Section, or fails to provide interim protection for exposed employees.

 

(d) At the conclusion of the consultation visit, the consultant will conduct a closing conference with the employer. The consultant will describe hazards identified during the visit and other pertinent issues related to employee safety and health.

 

(e) Employer obligations.

 

(i) An employer must take immediate action to eliminate employee exposure to a hazard which, in the judgment of the consultant, presents an imminent danger to employees.  If the employer fails to take the necessary action, the consultant must immediately notify the affected employees and Consultation Program Supervisor and provide the relevant information.

 

(ii) An employer must also take the necessary action to eliminate or control employee exposure to any identified serious hazard, and meet the posting requirements of paragraph 3.(c)(vi) of this section.

 

(iii) An employer may request an extension of the time frame established for correction of a serious hazard when the employer demonstrates having made a good faith effort to correct the hazard within the established time frame and is taking interim steps to safeguard the employees against the hazard during the correction period.

 

(iv) If the employer fails to take the action necessary to correct a serious hazard within the established time frame or any extensions, the Consultation Program Supervisor shall immediately notify the Program Manager and provide the relevant information.  The Program Manager in conjunction with the Compliance Program Supervisor will make a determination whether enforcement activity is warranted.

 

(v) After correction of all serious hazards, the employer shall notify Consultation by written confirmation of the correction of the hazards.

 


(f) A written report shall be prepared for each visit which results in substantive findings or recommendations, and shall be sent to the employer. The report shall, within the scope of the request, evaluate the employer=s program for ensuring safe and healthful employment and provide recommendations for making such programs effective; shall identify specific hazards and describe their nature, including reference to applicable standards or codes; shall identify the seriousness of the hazards; and, to the extent possible, recommend corrective actions including the possible need to procure specific engineering consultation, medical advice and assistance, and other appropriate items. The report shall also include reference to the completion dates for the situations described in 3.(e)(i) and (ii).

 

(g) Employer Remedies.

 

(i) Consultation must provide, upon written request from the employer within 15 working days of receipt of the consultant's report, a prompt opportunity for an informal discussion with the consultation supervisor regarding the period of time established for the correction of a hazard or any other substantive finding of the consultant.

 

(ii) An employer may request, and the consultation supervisor may grant, an extension of the time frame established for correction of a serious hazard when the employer demonstrates having made a good faith effort to correct the hazard within the established time frame; shows evidence that correction has not been completed because of factors beyond the employer's reasonable control; and shows evidence that the employer is taking all available interim steps to safeguard the employees against the hazard during the correction period.

 

(h) Confidentiality.

 

(i) Release of the identity of employers who have requested Consultation services would breach the confidentiality of commercial information not customarily disclosed by the employer. Accordingly, the Department shall keep such information confidential.

 

(ii) The Department shall preserve the confidentiality of information obtained as      the result of a consultative visit which contains or might reveal a trade secret of the employer.

 

(iii) The consultant=s written report will not be disclosed to anyone except to the employer for whom it was prepared and as provided for in 4.(a)(iii). Consultation may also disclose information contained in the consultant=s written report to the extent required by General Rules 1910.1020.

 

Section 4.  Relationship to Enforcement.

 

(a) Consultation shall function as a separate division with no infringement upon the enforcement capability of the Department.  Consultation activity shall be conducted independently of any Compliance enforcement activity.


(i) Consultation shall have its own identifiable managerial staff separate from compliance inspections and scheduling. Consultation shall not perform compliance functions except in cases of imminent danger and shall not have knowledge of or give advance notice of compliance action or activities.

 

(ii) Consultation may have access to compliance case files after closure.

 

(iii) Compliance shall not have access to the identity of employers requesting onsite consultation, Consultation files, records or correspondence of the consultant=s visit, except as provided for failure to eliminate imminent danger or serious hazards, inspection deferral, or recognition and exemption programs.

 

(b) An onsite consultative visit already in progress will have priority over Compliance inspections except as provided in paragraph 4.(b)(i) of this section. An onsite consultative visit shall be considered in progress from the beginning of the opening conference through the end of the correction due dates and any extensions thereof.

 

(i) The consultant shall terminate an onsite consultative visit already in progress where one of the following kinds of Compliance inspections is about to take place:

 

(A) Imminent danger investigations;

 

(B) Fatality/catastrophe investigations;

 

(C) Complaint investigations.

 

(ii) An onsite consultation visit may not take place while a Compliance enforcement inspection is in progress at the establishment. An enforcement inspection shall be deemed in progress from the time a compliance officer initially seeks entry to the workplace to the end of the closing conference. An onsite consultative visit shall not take place subsequent to a Compliance enforcement inspection until a determination has been made that no citation will be issued, or if a citation is issued, onsite consultation shall only take place with regard to those citation items which have become final orders.

 

(c) Employers who are a member of Consultation=s recognition and exemption programs will be removed from Compliance=s programmed inspection schedule.

 

(i) Compliance may continue to make inspections in the following categories at sites that achieved recognition/exemption status and have been granted exemption from Compliance=s programmed inspection schedule:

 

(A) Imminent danger;

 


(B) Fatality/catastrophe;

 

(C) Formal complaints.

 

(d) Effect upon enforcement.

 

(i) The advice of the consultant and the consultant=s written report will not be binding on a compliance officer in a subsequent enforcement inspection. In a subsequent inspection, a compliance officer is not precluded from finding hazardous conditions, or violations of standards, rules or regulations, for which citations would be issued and            penalties proposed.

 

(ii) The hazard identification and correction assistance given by a consultant, or the failure of a consultant to point out a specific hazard, or other possible errors or omissions by the consultant, shall not be binding upon a compliance officer and need not affect the regular conduct of a compliance inspection or preclude the finding of alleged violations and the issuance of citations, or constitute a defense to any enforcement action.

 

(iii) In the event of a subsequent inspection, the employer is not required to inform the compliance officer of the prior visit. The employer is not required to provide a copy of the consultant=s written report to the compliance officer, except to the extent that  disclosure of information contained in the report is required by General Rules 1910.1020.

 

(iv) If, however, the employer chooses to provide a copy of the consultant=s report to a compliance officer, it may be used as a factor in determining the extent to which an inspection is required and as a factor in determining proposed penalties. When, during the course of a compliance inspection, a compliance officer identifies the existence of serious hazards previously identified as a result of a consultative visit, Compliance may assess minimum penalties if the employer is in good faith complying with the recommendations of a consultant after such consultative visit.

 

Section 5.  Recognition and Exemption Programs.

 

(a) The recognition and exemption programs administered by Consultation provide incentives and support to Wyoming employers to work with their employees to develop, implement, and continuously improve the effectiveness of their workplace safety and health management system.

 

(b) Consultation will administer the following recognition and exemption programs:

 

(i) Cowboy Voluntary Protection Program (CVPP);

 

(ii) Safety and Health Achievement Recognition Program (SHARP);

 


(iii) Employer=s Voluntary Technical Assistance Program (EVTAP).

Note: It is possible that these programs may come to be known by other names.

 

(c) The CVPP is open to any employer of any size in the state with an established safety and health program.  The program will be conducted using Federal OSHA=s VPP Policies and Procedures Manual as a guideline. The review and approval authority of CVPP is the Program Manager.

 

(d) SHARP is open to any employer of any size in the state with an established safety and health program.  The program will be conducted using Federal OSHA=s Consultation Policies and Procedures Manual as a guideline. The review and approval authority of SHARP is the Program Manager.

 

(e) EVTAP is a cooperative assistance program for those employers with the on-going commitment and willingness to establish a health and safety program, a hazard-free workplace, and by Consultation providing technical assistance and consultation services in assisting employers in their efforts.  The goal of EVTAP is for employers to become self sufficient in their health and safety program and becoming eligible for entry into SHARP.  Program elements and requirements are:

 

(i) Employers of any size in the state may participate.

 

(ii) Be a single fixed worksite.  Multiple worksites under common control must be evaluated and approved separately.

 

(iii) Employers must request a full service, comprehensive visit and correct all hazards (serious and other-than-serious) identified by the consultant.

 

(iv) Implement and maintain a written health and safety program addressing, at a minimum for initial entry into EVTAP, the core elements of such a program as identified by Consultation.  Specific elements include but are not limited to:

 

(A) Written health and safety policy;

 

(B) Monthly self inspections of the workplace;

 

(C) On going training of employees and supervisors;

 

(D) A means for employees to report hazards with no fear of retribution.

 

(v) Work to implement all basic attributes of the Safety and Health Program Assessment Worksheet provided by Consultation, with the goal of scoring at least two in all attributes when evaluated in subsequent renewal visits.

 


(vi) Agree to notify Consultation when making major changes in working conditions or work processes that might introduce new hazards into the workplace.

 

(vii) Maintain the Occupational Injury/Illness Log (OSHA 300 Log) in accordance with Chapter 6 of these rules while a member of EVTAP, even though the employer may normally not be required to do so.

 

(viii) Consultation will schedule and conduct a full service, comprehensive on-site visit of the workplace in accordance with the procedures in this chapter.

 

(ix) Employers may request a renewal of their EVTAP membership. Consultation must revisit the workplace to evaluate if the employer continues to meet all program requirements, is showing improvement in implementing the Safety and Health Program Assessment Worksheet program attributes, and is improving their Days Away Restricted or Transferred (DART) rate and Total Recordable Case Rate (TRCR).  Renewal is not automatic and may be denied or approved on additional qualitative factors such as commitment or good faith efforts for continuing in the program.