Tenn. Comp. R. & Regs. 0800-01-05-.08 - 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.
(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.
Notes
Authority: T.C.A. §§ 4-3-1411, 50-3-102, 50-3-201, 50-3-301 through 50-3-306, 50-3-906, and 50-3-911.
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