OSHA Instruction FAP 1.2A April 10, 1995 Office of Federal Agency Programs

Subject: Federal Agency Safety and Health Programs With the Bureau of Prisons, U.S. Department of Justice

A. Purpose. This instruction provides guidelines for field operations with the Federal Bureau of Prisons, Department of Justice. Special guidelines are necessary due to the requirements of security which are inherent in any involvement with the Bureau's safety and health program within a Federal Prison and the differences in applying OSHA rules and regulations between Bureau of Prisons' employees and inmates during inspections. Also, it sets forth the procedures that should be followed by OSHA inspectors prior to and during OSHA inspections.

B. Scope. This instruction applies OSHA-wide.

C. Cancellation. This instruction replaces OSHA Instruction FAP 1.2, dated September 23, 1985.

D. References.

1. OSHA Instruction CPL 2.103, dated September 26, 1994, The Field Information Reference Manual (FIRM).

2. OSHA Instruction CPL 2.45 Change 4, dated December 13, 1993 (Chapter 13).

E. Action. Regional Administrators shall ensure that these instructions are implemented within their Regions. The National Office shall maintain liaison with the Bureau's Designated Agency Safety and Health Official (DASHO) or their designee, and share any additional information obtained with the Regions.

F. Background. In the past, some questions have arisen as to the procedures in implementing the 29 CFR Part 1960 requirements under the Occupational Safety and Health Administration (OSHA) regarding Bureau of Prisons' employees and Federal inmates. In addition, the Bureau of Prisons was concerned that unannounced OSHA inspections may compromise prison security.

Inmates are not "employees" as defined in section 3 of the Occupational Safety and Health Act (OSH Act), but when inmates are required to perform work similar to that outside of prisons, e.g., farming, industries, machine operations, etc., the applicable protections open to anyone else in similar situations should apply, including the right to file a report of hazards with appropriate safety and health officials.

This instruction addresses an agreement between the Bureau of Prisons' officials and OSHA regarding these concerns.

G. Bureau Program Information. The following information is based on the Bureau of Prisons' Safety and Health Program:

1. Bureau of Prisons' Employees. The Bureau of Prisons' policy consolidates the requirements of 29 CFR Part 1960 and related OSHA safety and health standards in its safety and health program. Consideration is given to security requirements during OSHA inspections. (See H.2.)

2. Bureau Safety and Health Program.

a. The Bureau's Occupational Safety and Environmental Health Manual and related directives are maintained by the Regional Safety Administrator (RSA). The RSA or institution safety officer can provide OSHA with or inform OSHA of specific requirements.

b. Bureau of Prisons' policy requires that all areas of the institution be inspected regularly by institution staff for fire, safety, health, and sanitation problems. In addition, weekly inspections are required of food service.

c. Each institution has a safety and health committee, chaired by an Associate Warden.

d. Access to employee exposure and medical records is available to the employee and to the Secretary of Labor in accordance with rules set out in 29 CFR Part 1960 and following procedures in 29 CFR 1910.20.

3. Federal Prison Inmates. The Bureau of Prisons considers that Federal inmates have 24 hour a day protection under its safety and health program. In addition, the Federal Bureau of Prisons applies OSHA safety and health standards to inmates under the following conditions:

a. The inmates are on Federal Bureau of Prisons' owned or leased property (even if located on other Federal premises) or are working at the direction of Bureau management, and

(1) The exposure to hazards is an occupational exposure, not another type of activity such as recreation, patient in a hospital, domiciliary, etc.

(2) Where inmate workers are repairing domiciliary systems, their operations, but not necessarily the site, would be covered under the Bureau of Prisons' program and OSHA Standards, as applied by the Bureau.

(3) Where inmate workers are managed by another Federal authority; e.g., the military, they would still be protected under the Bureau of Prisons' program and OSHA Standards, as applied by the Bureau, but the managing authority would be responsible for safe and healthful working conditions at the site.

b. Inmates are covered under the Inmate Accident Compensation System, 18 U.S.C. 4126 and 28 CFR Part 301. A BP-19 Injury Form is completed for all work related injuries and illness. It more than 3 work days were missed by an inmate a BP-19a Supplemental Injury Form will be completed. These reports are maintained in the safety office for the Secretary to review, upon request. The Secretary may request access to additional inmate exposure and medical records pursuant to proper procedures.

NOTE: Inmates can request access to their exposure and medical records under the Freedom of Information and Privacy Acts.

c. Inmates do not have employee representatives.

H. Guidelines for OSHA Officials.

1. Federal prisons shall be included in any OSHA Special Programs, except that they are not included in the Targeting Program based on inmate injury rates as these rates do not correspond to Federal agency rates obtained from Workers Compensation data.

2. Arranging a Visit or Contact. Whenever possible, all contacts with the Bureau of Prisons' officials shall be made through the Bureau of Prisons' Regional Safety Administrator (RSA). If the RSA is not available, OSHA's Regional Administrator may call the Prison Warden directly.

a. The Warden shall be consulted on all proposed contacts with inmates.

b. The RSA will help arrange the time and date of visits; as prior arrangements must be made in order to provide the necessary escort for OSHA personnel to enter.

c. If a situation concerns Bureau of Prisons' employees, and the employee representative is desired, prior clearance must be arranged through the Warden or RSA in order for the employee representative to be relieved from security duties.

d. The Warden or the RSA will advise OSHA officials on the problems of security for each situation, as these will differ according to place and time OSHA officials shall be guided by their advice.

(1) The Bureau of Prisons has authority to bar anyone or any action that is perceived as a threat to the secure and orderly conduct of the institution.

(2) OSHA officials will be accompanied by one or more Bureau of Prisons' staff.

(3) There may be times that a particular prison may not be in a position to admit OSHA officials. When advised to withdraw by Bureau staff, OSHA shall do so. If this occurs, the Bureau will be requested to complete the investigation and provide a report to OSHA.

(4) Cameras will not routinely be permitted and shall not be taken into the prison without the express approval of the Warden.

(5) Survey equipment and personal monitors may be used as the occasion requires. Inmates can be requested to use personal monitors. Such use will be cleared with the RSA prior to bringing in the equipment.

NOTE: Bureau of Prisons' policy considers OSHA monitoring instruments to be Federal property and will hold the inmates responsible for their misuse or destruction.

3. Conduct During Visitation. The Bureau of Prisons is a highly disciplined and structured organization. The authority, integrity, and perceived good judgment of Bureau officials and correctional staff must not be compromised.

a. OSHA officials shall ensure that all discussions of sensitive issues and disagreements are held in private quarters and out of sight and hearing of inmates.

b. Proposed discussion with inmates should be reviewed with Bureau officials prior to initiating discussion with inmates. Separate interviews with inmates should be held only after consent of the Bureau officials.

c. Discussions with prison employees (e.g., correctional officers) may be held privately providing that security is not compromised.

3. Allegations of Reprisals. Allegations of reprisals from inmates shall be forwarded to the Designated Agency Safety and Health Official (DASHO) of the Department of Justice, in accordance with the requirements of 29 CFR Part 1960, Subpart G. Allegations of reprisals from Bureau of Prisons' employees shall be forwarded to the Office of Special Counsel for resolution.

NOTE: The Bureau of Prisons has an established administrative grievance process that permits inmates to request the Bureau of Prisons to investigate many situations, with procedures for appeals to regional levels then to Bureau headquarters. The Whistleblower Protection Act of 1989 does not apply to inmates.

Joseph A. Dear Assistant Secretary

DISTRIBUTION: National, Regional, and Area Offices Compliance Officers State Designees NIOSH Regional Program Director 7(c)(1) Project Managers