23-408. Inspection of places and practices of employment; closing conference; prohibitions; employee initiation of investigation; violation; classification; injunction

A. Except as prescribed in section 23-432, subsection E, the director of the division of occupational safety and health, or the director's authorized representative, on presentation of credentials, shall be permitted to inspect places of employment, question employees and investigate conditions, practices or matters in connection with employment subject to this article at reasonable times, as the director or the director's authorized representative may deem appropriate to determine whether any person has violated any provision of this article or any rule or regulation issued pursuant to this article or that may aid in the enforcement of this article. An employer or other person shall not refuse to admit the director or the director's authorized representatives to any place or refuse to permit the inspection if the proper credentials are presented and the inspection is made at a reasonable time.

B. In making inspections and investigations, the director or the director's authorized representative may require the attendance and testimony of witnesses and the production of evidence under oath. Witnesses shall be paid the same fees and mileage paid to witnesses in the courts of this state. If any person fails or refuses to obey such an order, the director or the director's authorized representative may apply to any superior court in any county where the person is found, resides or transacts business for an order requiring the person to produce evidence and to give testimony as ordered. Failure to obey such an order is contempt of court.

C. The director or the director's authorized representative shall inspect at least every six months any operation that mixes rock, sand, gravel or similar materials with water and cement or with asphalt and that is not included in the definition of mine in section 27-301. The director or the director's authorized representative shall monitor and work with the mine inspector only to the extent necessary to ensure this state's compliance with federal occupational safety and health act standards, (P.L. 91-596).

D. Notice of an intended inspection shall not be given to an employer before the time of actual entry on the workplace, except by specific authorization by the director.

E. A representative of the employer and a representative authorized by the employer's employees shall be given an opportunity to accompany the director or the director's authorized representative during the physical inspection of any workplace for the purpose of aiding the inspection. Where there is no authorized employee representative, the director or the director's authorized representative shall consult a reasonable number of employees concerning matters of safety and health in the workplace.

F. The director may not allow any individual to accompany a compliance safety and health officer when conducting inspections for the industrial commission of Arizona pursuant to this section unless the individual is any of the following:

1. An employee of the employer being inspected.

2. A safety consultant, attorney or other agent of the employer or a person present with the consent of the employer.

3. The authorized employee representative. For the purposes of this paragraph, "authorized employee representative" means an agent of a labor organization that has a collective bargaining relationship with the employer who represents employees who are members of the collective bargaining unit.

4. A third party who is required by law to accompany the compliance safety and health officer to ensure that the state plan is at least as effective as the standards of the occupational safety and health act of 1970 (P.L. 91-596; 84 Stat. 1590).

5. Otherwise required by law to be present.

G. The employer may require the following conditions for a third party who accompanies a compliance safety and health officer during an inspection pursuant to subsection F of this section:

1. That not more than one individual be present unless otherwise required by law.

2. That the individual follow all workplace safety rules regarding personal protective equipment applicable to all visitors for the workplace.

3. That the individual is required to complete any safety trainings applicable to all visitors of the workplace.

4. That the individual sign a confidentiality agreement with respect to the use of confidential information that is learned during the inspection that has the same terms as required for other visitors.

5. That nonemployees, other than the compliance safety and health officer, are prohibited from entering areas that contain trade secrets.  The compliance safety and health officer may consult with a reasonable number of employees who work in the identified trade secret area on matters of safety and health, even if those employees are not joining the inspection.  Information obtained by the commission or its representatives during the inspection that contains or that may reveal a trade secret is subject to section 23-426.

H. Except as provided in section 23-426, information and facts developed by the commission, the director or any employee of the commission or division in the course of any inspection or investigation are public records subject to inspection pursuant to title 39, chapter 1, article 2, if, pursuant to section 23-415, subsection D, the inspection or investigation has been closed or a citation has been issued. Such information and facts shall not be admissible in any court or before any administrative body except pursuant to this article.  Notwithstanding this subsection, the director or any commission employee is not required to appear at any deposition, trial or hearing concerning a division inspection or investigation unless the appearance is related to a hearing held pursuant to this article. Hearings held pursuant to this article are open to the public.

I. During the inspection or investigation and in deciding whether to recommend and issue a citation, the director or the director's authorized representative and the commission may consider whether an employee has committed misconduct by violating the employer's policies, if any, regarding substance abuse while working, as evidenced by the results of testing for substance abuse or other evidence of impairment while working.

J. An employee of the division or the commission may not:

1. Before, during or after an inspection or investigation, communicate to an employer that the employer should not be represented by an attorney or that the employer may be treated more favorably by the division or the commission if the employer is not represented by an attorney.

2. Conduct an audio recording of an oral statement provided during an interview without the knowledge and consent of the person being interviewed. The employee of the division or the commission shall inform the person being interviewed of the person's right to receive a copy of the recorded oral statement within a reasonable time.

3. Obtain a written statement during an interview without informing the person of the person's right to receive a copy of the written statement within a reasonable time.

K. An employee or a representative of employees who believes that a violation of a safety or health standard or regulation exists that threatens physical harm or that an imminent danger exists may request an investigation by giving notice to the director or the director's authorized representative of the violation or danger. Any notice shall be in writing, set forth with reasonable particularity the grounds for the notice and be signed by the employees or representative of the employees. On the request of the employee giving the notice, the employee's name and the names of other employees referred to in the notice shall not appear on any copy of the notice or any record published, released or made available. If on receipt of the notice the director determines that there are reasonable grounds to believe that the violation or danger exists, the director shall make an investigation in accordance with this article as soon as practicable to determine if the violation or danger exists. If the director determines there are no reasonable grounds to believe that a violation or danger exists, the director shall notify the employees or representative of the employees in writing of the determination.

L. Any person who violates any provision of this section is guilty of a class 2 misdemeanor.

M. The commission, or the commission's authorized representative, in addition to initiating an action under subsection K of this section, may file in the superior court in the county where the inspection was refused a verified complaint against an employer who violates subsection A of this section and request an injunction against continued refusal to permit an inspection.

N. At least thirty days before the industrial commission of Arizona submits the state plan proposal or proposed adoption to the United States occupational safety and health administration, the commission shall submit the state plan proposal or proposed adoption to the joint legislative audit committee, which may review and recommend that the commission amend the state plan proposal or proposed adoption.