Okla. Admin. Code § 380:40-1-9 - Objection to inspection
(a) Upon a
refusal to permit the PEOSH Inspector, in exercise of this official duties, to
enter without delay and at reasonable times any place of employment or any
place therein, to inspect, to review records, or to question any employer,
operator, agent, or employee, in accordance with 380:40-1-8 or to permit a
representative of employees to accompany the PEOSH Inspector during the
physical inspection of any workplace in accordance with 380:40-1-12(a), the
PEOSH Inspector shall terminate the inspection or confine the inspection to
other areas, conditions, structures, machines, apparatus, devices, equipment,
materials, records, or interviews concerning which no objection is raises. The
PEOSH Inspector shall endeavor to ascertain the reason for such refusal, and
shall immediately report the refusal and the reason therefor to the Director,
PEOSH Division, hereafter referred to as "Director" If in the Director's
opinion, such refusal is without good cause, the same shall be considered a
violation of the Act and these Rules, and may subject the employer to citation.
The Director shall consult with the Legal Division, who shall take appropriate
action, including obtaining an emergency Order from the Commissioner,
pursuantto 40 O.S. §
410(F), if necessary.
(b) A subpoena or Order of the Commissioner,
may be obtained in advance of an attempted inspection or investigation if, in
the judgment of the Director and the Legal Division, circumstances exist which
make such pre-inspection process necessary. Some examples of circumstances in
which it may be necessary to seek such an Order in advance of an attempted to
inspect or investigate include (but are not limited to):
(1) When the employer's past practice either
implicitly or explicitly puts the Oklahoma Department of Labor on notice that
an inspection will not be allowed, absent specific Order of the
Commissioner;
(2) When an
inspection is scheduled far from the local office and procuring a subpoena or
other Order of the Commissioner prior to leaving to conduct the inspection
would avoid, in case of refusal of entry, the expenditure of significant time
and resources to return to the office, obtain an Order, and return to the work
site;
(3) When an inspection
includes the use of special equipment or when the presence of an expert or
experts is needed in order to properly conduct the inspection, and procuring an
Order prior to an attempt to inspect would alleviate the difficulties or costs
encountered in coordinating the availability of such equipment or
expert.
(c) For purposes
of this section, the term "Order of the Commissioner" shall mean the
institution of any appropriate action, including subpoena or "ex parte"
application for an Emergency Order or its equivalent.
(d) Any permission to enter, inspect, review
records, or question any person, shall not imply or be conditioned upon a
waiver of any cause of action, citation, or penalty under the Act. PEOSH
Inspectors are not authorized to grant any such waiver.
Notes
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