SECTION 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, pursuant to 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.

(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.

[Source: Added at 16 Ok Reg 3023, eff 7-12-99; Amended at 18 Ok Reg 3515, eff 9-14-01; Amended at 20 Ok Reg 2700, eff 8-12-03; Amended at 35 Ok Reg 1775, eff 9-15-18]

Note

AGENCY NOTE: In the rule that was added on 7-12-99, two citations were incorrect. The cite to 39-0:40-1-9 should have read 380:40-1-8, and the cite to 280:40-1-8 should have read 380:40-1-12.