ARIZONA DIVISION OF OCCUPATIONAL SAFETY AND HEALTH POLICY AND PROCEDURE
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Effective Date:
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August 1, 2006
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Policy Number:
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2006-01
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Subject:
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Complaint Policies and Procedures
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Summary
This instruction provides comprehensive guidance for handling complaints relating
to workplace safety and health conditions. It defines critical terms relevant to
the complaint process, including complaint, formal complaint, and referral, and
outlines the conditions a complaint or referral must meet in order to warrant an
on-site inspection. This instruction discusses protocol for dealing with electronic
complaints, which are becoming a more common method of filing complaints with the
division, and introduces an electronic code to facilitate tracking of these complaints.
Procedures for receiving information via telephone, as well as for handling complaints
filed in multiple area offices, are addressed. Additionally, detailed procedures
for conducting both on-site inspections and phone/fax inquiries are delineated.
Significant Changes from Past Practices
- The distinction between formal and nonformal complaints has been reestablished.
- The terms complaint and referral have been redefined so as to be mutually exclusive
of one another.
- The term investigation has been replaced with inquiry.
- The policy has been revised to clarify that classifying information received as
a complaint or a referral does not in itself determine whether an inspection will
be conducted as a result. Rather, an inspection is triggered based on the gravity
and likelihood of the potential workplace hazard.
- Procedures for handling complaints submitted via OSHA's or the ICA's public website
are outlined.
- A provision has been added to establish that receipt of information giving reasonable
grounds to believe that a worker under 18 years of age is exposed to a serious violation
of a safety or health standard or a serious hazard will result in an inspection
if the information relates to construction, manufacturing, or agriculture, or other
industries as determined by the Director.
TABLE OF CONTENTS
I. Purpose
II. Scope
III. Definitions
- Complaint
- Formal Complaint
- Nonformal Complaint
- Inspection
- Inquiry
- Electronic Complaint
- Other Interested Individual/Party
- Permanently Disabling Injury or Illness
- Referral
- Representative of Employees
IV. Criteria Warranting an Inspection
V. Electronic Complaints Received via the OSHA or ICA Public Websites
VI. Information Received by Telephone
VII. Procedures for Handling Complaints Filed in Multiple Offices
VIII. Procedures for an Inspection
IX. Procedures for an Inquiry
X. Complainant Protection
XI. Recording in IMIS
APPENDIX A - Flow Charts of Complaint Process
APPENDIX B - Complaint Questionnaire
- Purpose.
This instruction revises policies and procedures for handling complaints relating
to workplace safety and health conditions, and includes procedures for handling
complaints received electronically from either the OSHA or ICA public websites.
- Scope.
This instruction applies to all ADOSH offices. These procedures continue to provide
for quick resolution of complaints, speed hazard abatement and enable ADOSH to focus
its inspection resources on the workplaces where they are most needed. The policy
continues to protect the right of current employees and their representatives to
file complaints about workplace safety and health hazards.
- Definitions.
- Complaint. Notice of an alleged safety or health hazard (over which ADOSH
has jurisdiction), or a violation of the Act, submitted by a past or present employee,
representative of employees, or other interested individual/party.
- Formal Complaint. Complaint made by a current employee or a representative
of employees that meets all of the following requirements:
- Asserts that an imminent danger, a violation of the Act, or violation of an OSHA
standard exposing employees to physical harm exists in the workplace;
- Is reduced to writing or submitted on an OSHA-7 form; and
- Is signed by at least one current employee or employee representative.
- Nonformal Complaint. Any complaint alleging safety or health violations that
does not meet all of the requirements of a formal complaint identified above and
does not come from one of the sources identified under Referral in III.H. below.
- Inspection. An on-site examination of an employer's worksite conducted by
an ADOSH compliance officer, initiated as the result of a complaint or referral,
and meeting at least one of the criteria identified in IV.A (below).
- Inquiry. A process conducted in response to a complaint or a referral that
does not meet one of the identified inspection criteria. It does not involve an
on-site inspection of the workplace, but rather ADOSH advises the employer of the
alleged hazard(s) or violations by telephone, fax, e-mail, or by letter if necessary.
The employer is required to provide a response, and the division will notify the
complainant of that response via appropriate means.
- Electronic Complaint. A complaint submitted via either OSHA or the ICA’s
public webpage. All complaints submitted via either public webpage are considered
nonformal.
- Other Interested Individual/Party. Any individual or party not who is not
an employee or a representative of employees (as defined in J below).
- Permanently Disabling Injury or Illness. An injury or illness that has resulted
in permanent disability or an illness that is chronic or irreversible. Permanently
disabling injuries or illnesses include, but are not limited to: amputation, blindness,
a standard threshold shift in hearing, lead or mercury poisoning, paralysis or third-degree
burns.
- Referral. Information received from one of the sources listed below alleging
a hazard or a violation of the Act believed to exist in a workplace.
- CSHO referral - information based on the direct observation of a CSHO. (Code 14A
as A. CSHO (Within Office).)
- Safety and health agency referral from sources including, but not limited to: NIOSH,
state programs, consultation, state or local health departments, local police and
fire departments, medical doctors, as well as safety and/or health professionals
in other Federal agencies. (As appropriate, code 14A as B. Federal OSHA; C. State
OSH; F. Consultation; G. State/Local Government; or I. Other.)
- 11(c) complaint referral - made by an 11(c) discrimination investigator when an
employee alleges that he or she was discriminated against for complaining about
safety or health conditions in the workplace or for refusing to do an allegedly
imminently dangerous job or task. (Code 14A as D. Discrimination.)
- Other government agency referral made by other Federal, State, or local government
agencies or their employees. (As appropriate, code 14A as E. Other Federal Agency,
or G. State/Local Government.)
- Media report - either news items reported in the media or information reported directly
to OSHA by a media source. (Code 14A as H. Media.)
- Employer report of accidents other than fatalities and catastrophes. (Code 14A as
I. Other.)
- Representative of Employees. Any of the following:
- An authorized representative of the employee bargaining unit, such as a certified
or recognized labor organization.
- An attorney acting for an employee.
- Any other person acting in a bona fide representative capacity, including members
of the clergy, social workers, spouses and other family members, and government
officials or nonprofit groups and organizations acting upon specific complaints
and injuries from individuals who are employees. The representational capacity of
the person filing complaints on behalf of another should be ascertained unless it
is already clear. In general, the affected employee should have requested, or at
least approved of, the filing of the complaint on his or her behalf.
- Criteria Warranting an Inspection.
- Whether the information received is classified as a complaint or a referral, an
inspection of a workplace is normally warranted if at least one of the conditions
below is met (but see VIII.A.2):
- A valid formal complaint is submitted. Specifically, the complaint must be reduced
to writing or submitted on an OSHA-7 form, be signed by a current employee or representative
of employees, and state the reason for the inspection request with reasonable particularity.
Additionally, there must be reasonable grounds to believe either that a violation
of the Act or OSHA standard that exposes employees to physical harm exists, or that
an imminent danger of death or serious injury exists.
- The information alleges that a disabling injury or illness (as defined in VIII.H.,
above) has occurred as a result of the complained of hazard(s), and there is reason
to believe that the hazard or related hazards still exist.
- The information alleges that an imminent danger situation exists.
- The information concerns an establishment and an alleged hazard covered by a local,
or national emphasis program, or the division’s current strategic plan.
- The employer fails to provide an adequate response to an inquiry, or the individual
who provided the original information provides further evidence that the employer's
response is false or does not adequately address the hazard(s).
- The establishment that is the subject of the information has a history of egregious,
willful, failure-to-abate, or repeat citations within Arizona during the past three
years,. However, if the employer has previously submitted adequate abatement documentation
for these violations demonstrating that they have been corrected and that programs
have been implemented to prevent a recurrence of hazards, the supervisor will normally
determine that an inspection is not necessary.
- A discrimination investigator requests that an inspection be conducted in response
to an employee's allegation that the employee was discriminated against for complaining
about safety or health conditions in the workplace or for refusing to perform an
allegedly imminently dangerous job or task.
- If an inspection is scheduled or has begun at an establishment and a complaint or
referral that would normally be handled via inquiry is received, that complaint
or referral may, at the supervisor's discretion, be incorporated into the scheduled
or ongoing inspection. If such a complaint is formal, the complainant must still
receive a written response addressing the complaint items.
- If the information gives reasonable grounds to believe that a worker under 18 years
of age is exposed to a serious violation of a safety or health standard or a serious
hazard, an on-site inspection will be initiated if the information relates to construction,
manufacturing, agriculture, or other industries as determined by the Director. (Limitations
placed on ADOSH's activities in agriculture by Appropriations Act provisions will
be observed. See OSHA Instruction CPL 02-00-051 (2-0.51J)).
NOTE: The information does not need to allege that a child labor law has
been violated.
- In order to schedule an inspection of an employer in an exempt industry classification
as specified by Appropriations Act provisions (see OSHA Instruction CPL 02-00-051
(2-051J)):
- The information must come directly from a current employee; OR
- It must be determined and documented in the case file that the information came
from a representative of the employee (see III.J.) with the employee's knowledge
of the representative's intended action.
- Electronic Complaints Received via the OSHA or ICA Public
Websites.
- Electronic complaints submitted via the OSHA public website are automatically forwarded
via e-mail to ADOSH.
- ADOSH manages a "Complaints" mailbox and processes electronic complaints according
to internal complaint processing procedures. The complaints mailbox is monitored
daily and every incoming complaint is reviewed for jurisdiction.
- Complete an OSHA-7 form for all complaint information received. In order to facilitate
the tracking of electronic complaints from the OSHA website, enter the following
code in the Optional Information field:
- N-11-LOGXXXXXX
- Where N-11 indicates that the complaint was filed electronically.
The digits following LOG are the unique compliant ID/log numbers assigned
to the electronic complaint when processed by the Salt Lake Technical Center. The
log number may vary and does not have to be exactly six digits. In entering the
code, there is no space between the word LOG and the digits that follow.
- Information received electronically from a current employee is considered a nonformal
complaint unless and until that individual provides a signed copy of the information.
The employee can send or fax a signed copy of the information, request that an OSHA-7
form be sent, or sign the information in person at the division office.
- All complaint related material received electronically should be printed and date
stamped with the date the material was submitted and received.
- Information Received by Telephone.
- During the course of telephone contact with the caller, ADOSH will attempt to obtain
the following information:
- Whether the caller is a current employee or an employee representative.
- The exact nature of the alleged hazard(s) and the basis of the caller's knowledge,
as the individual receiving the information must determine, to the extent possible,
whether the information received describes an apparent violation of OSHA standards
or the OSH Act.
- The employer's name, address, telephone and fax numbers, as well as the name of
a contact person at the worksite.
- As appropriate, ADOSH will provide the caller with the following information:
- Describe the complaint process, and if appropriate, the concepts of "inquiry"
and "inspection," as well as the relative advantages of each.
- If the caller is a current employee or a representative of employees, explain the
distinction between a formal complaint and a nonformal complaint, and the rights
and protections that accompany filing a formal complaint. These rights and protections
include:
- The right to request an on-site inspection.
- Notification in writing if an inspection is deemed unnecessary because there are
no reasonable grounds to believe that a violation or danger exists.
- The right to obtain review of a decision not to inspect by submitting a request
for review in writing.
- If appropriate, inform the complainant of rights to confidentiality in accordance
with A.R.S. 23-408(F), and ask whether the complainant wishes to exercise this right.
When confidentiality is requested, the identity of the complainant is protected
regardless of the formality of the complaint.
- Explain whistleblower protections and rights.
- Procedures for Handling Complaints Filed in Multiple offices.
When it is determined that multiple offices have received the same complaint from
an employee or an employee representative regarding a hazardous condition or a deficiency
in an employer's safety and health program, supervisors from each office will coordinate
efforts to ensure that the complaint(s) is(are) responded to in the most efficient
manner.
- Procedures for an Inspection.
- Upon receipt of a complaint or referral, the Director (or his or her designee) will
evaluate all available information and exercise professional judgment as to whether
there are reasonable grounds to believe that a violation or hazard exists.
- If necessary, reasonable attempts will be made to contact the individual who provided
the information in order to obtain additional details or to clarify issues raised
in the complaint or referral. See Appendix B.
- The Director (or his/her designee) may determine not to inspect a facility if he
or she has a substantial reason to believe that the condition complained of is being
abated.
- Where a complaint has been submitted but, in the professional judgment of the Director,
there are no reasonable grounds to believe that a violation or hazard exists, no
inspection or inquiry will be conducted.
- Where a formal complaint has been submitted, the complainant will be notified in
writing of ADOSH's intent not to conduct an inspection, the reasoning behind the
determination, and the appeal rights provided under 29 CFR 1903.12. The justification
for not inspecting will be noted in the file.
- Where a nonformal complaint or referral has been submitted, if possible, the individual
providing the information will be notified by appropriate means of ADOSH’s
intent not to conduct an inquiry or inspection. The justification for not inspecting
will be noted in the file.
- If the information contained in the complaint or referral meets at least one of
the inspection criteria listed in IV.A. above, and there are reasonable grounds
to believe that a violation or hazard exists, an inspection will normally be conducted.
- If appropriate, ADOSH will inform the individual providing the information that
an inspection will be scheduled and that he or she will be advised of the results.
- After the inspection, ADOSH will send the individual a letter addressing each information
item, with reference to the citation(s) or a sufficiently detailed explanation for
why a citation was not issued.
- If an inspection is warranted, it will be initiated as soon as resources permit.
Inspections resulting from formal complaints of serious hazards will normally be
initiated within five working days.
- Procedures for an Inquiry.
- If the complaint or referral does not meet the criteria for initiating an on-site
inspection, an inquiry will be conducted. ADOSH will promptly contact the employer
to notify it of the complaint or referral and its allegation(s).
- The employer will be advised of what information is needed to answer the inquiry
and encouraged to respond by fax or e-mail. Employers are requested to do the following:
- Immediately investigate and determine whether the complaint or referral information
is valid and make any necessary corrections or modifications.
- Advise the supervisor either in writing or via e-mail within five (5) working days
of the results of the investigation into the alleged complaint or referral information.
Although the employer is requested to respond within the above time frame, the employer
may not be able to complete abatement action during that time, but is encouraged
to do so.
- Provide the supervisor with supporting documentation of the findings, including
any applicable measurements or monitoring results, and photographs and/or videos
that the employer believes would be helpful, as well as a description of any corrective
action the employer has taken or is in the process of taking.
- Post a copy of the letter from ADOSH where it is readily accessible for review by
all employees.
- Return a copy of the signed Certificate of Posting to the supervisor.
- If there is a recognized employee union or safety and health committee in the facility,
provide it with a copy of ADOSH's letter and the employer's response.
- As soon as possible after contacting the employer, the notification letter will
be faxed to the employer, or mailed where no fax is available. Sample letters to
complainants and employers are provided on the NCR. If e-mail is an acceptable means
of responding, this should be indicated in the notification letter and the proper
e-mail address should be provided.
- If no employer response or an inadequate employer response is received after the
allotted five working days, additional contact with the employer may be made before
an inspection is scheduled. Ultimately, if the employer provides no response or
an inadequate response, or if ADOSH determines from other information that the condition
has not been or is not being corrected, an inspection will be scheduled.
- The complainant will be advised of the employer's response, as well as his or her
right to dispute that response, and of the right to request an inspection if the
alleged hazard persists.
- When OSHA receives an adequate response from the employer and the complainant does
not dispute or object to the response, an on-site inspection normally will not be
conducted.
- If the complainant is a current employee or a representative of employees and wishes
to dispute the employer's response, the disagreement must be submitted in writing
and signed, thereby making the complaint formal.
- If the employee disagreement takes the form of a written and signed formal complaint,
refer to procedures at VIII, above.
- If the employee disagreement does not take the form of a written and signed formal
complaint, some discretion is allowed in situations where, in the professional judgment
of the supervisor, the information does not warrant an on-site inspection. In such
situations, the complainant will be notified of ADOSH’s intent not to conduct
an inspection and the reasoning behind the determination. This decision should be
sufficiently documented in the file.
- If a signed complaint is received after the complaint inquiry process has begun,
the supervisor will determine whether the alleged hazard is still likely to exist
based on the employer's response and by contacting the complainant. The complainant
will be informed that the inquiry has begun and that the complainant still retains
the right to request an on-site inspection if he or she disputes the results and
believes the hazard still exists.
- The complaint must not be closed until ADOSH confirms that the hazard has been abated
and eliminated.
- Complainant Protection.
- Identity of the complainant. Upon request of the complainant, his or her identity
will be withheld from the employer in accordance with A.R.S. 23-408(F). No information
will be given to the employer that would allow the employer to identify the complainant.
- Discrimination Protection.
- A.R.S. 23-425 provides protection for employees who believe that they have been
the subject of an adverse employment action in retaliation for engaging in activities
related to workplace safety and health. Any employee who believes that he or she
has been discharged or otherwise discriminated against by any person as a result
of engaging in such activities may file a discrimination complaint. Such a complaint
must be filed within 30 days of the discharge or other discrimination. 11
- Complainants should be advised of their rights and protections under A.R.S.
23-425, upon filing a complaint with ADOSH and whenever appropriate in subsequent communications.
- Recording in IMIS.
Information about complaint inspections or inquiries must be recorded in IMIS following
current instructions given in the IMIS manual.
- APPENDIX A - Flow Charts of the Complaint Process
- APPENDIX B - Complaint Questionnaire
(Nonmandatory)
Obtain information from the caller by asking the following questions, where relevant.
For All Complaints:
1. What is the hazard?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
2. How are workers exposed to this hazard? Describe the unsafe or unhealthful working
conditions; identify the location.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
3. What work is done in the unsafe/unhealthful area? Identify, as well as possible,
the type and condition of equipment in use, the materials (e.g., chemicals) being
used, the process/operation involved, and the kinds of work being done near the
hazardous area. Have there been any recent chemical spills, releases, or accidents?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
4. With what frequency are workers doing the task that leads to the exposure? Continuously?
Every day? Every week? Rarely? For how long at one time? How long has the condition
existed (so far as can be determined)? Has it been brought to the employer's attention?
Have any attempts been made to correct the condition, and, if so, who took these
actions? What were the results?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
5. How many shifts are there? What time do they start? On which shift does the hazardous
condition exist?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
6. What personal protective equipment (e.g., hearing protection, gloves or respirators)
is required by the employer relevant to the alleged exposure? Is it used by employees?
Include all PPE and describe it as specifically as possible. Include the manufacturer's
name and any identifying numbers.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
7. How many people work in the establishment? How many are exposed to the hazardous
conditions? How near do they get to the hazard?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
8. Is there an employee representative or a union in the establishment? Include
the name, address, and telephone number of the union and/or the employee representative(s).
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
For Health Hazards
9. Has the employer administered any tests to determine employee exposure levels
to the hazardous conditions or substance? Describe these tests. Can the employees
get the results (as required by the standard)? What were the results?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
10. What engineering controls are in place in the area(s) in which the exposed employees
work? For instance, are there any fans or acoustical insulation in the area which
may reduce exposure to the hazard?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
11. What administrative or work practice controls has the employer put in place?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________ 12. Do any
employees have any symptoms that may have been caused by exposure to hazardous substances?
Have any employees ever been treated by a physician for a work-related disease or
condition? What was it?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
13. Have there been any "near-miss" incidents?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
14. Are respirators worn to protect against health hazards? If so, what kind? What
exposures are they protecting against?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
15. If the complaint is related to noise, what, if any, hearing protection is provided
to and worn by the employees?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
16. Do employees receive audiograms on a regular basis?
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
For Safety Hazards:
17. Under what adverse or hazardous conditions are employees required to work? This
should include conditions contributing to stress and “other” probability
factors.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
18. Have any employees been injured as a result of this hazardous condition? Have
there been any “near miss” incidents?
______________________________________________________________________
______________________________________________________________________
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