A. In order to carry out the purposes of the Occupational Health and Safety Act, the department's authorized representatives, upon presenting appropriate credentials to the owner, operator or agent in charge, are authorized to and may:

(1) enter and inspect any place of employment at reasonable times and without delay; and

(2) question privately the employer and employees and to inspect and investigate during regular working hours and at other reasonable times and within reasonable limits and in a reasonable manner, the place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment and materials therein. The department's representative is not authorized to question privately the employer or employees until the board has adopted regulations protecting the rights of such employer and employees.

B. Any employee or representative of employees may file a written complaint with the department concerning any alleged violation of a regulation or any hazardous condition. A copy of the complaint shall be provided to the employer at the time of the inspection. However, upon the request of the complainant, the complainant's shall not appear on the copy. The department shall investigate the complaint and notify the complainant and employer in writing of the results of the investigation and any action to be taken. If no action is contemplated, the department shall notify the complainant and include in the notice the reasons therefor. The department shall provide for the informal review of decisions not to take compliance action at the request of the complainant. The review shall not be by those who investigated the complaint.

C. In order to aid inspections, a representative of the employer and a representative authorized by employees shall be given an opportunity to accompany the department inspector during the physical inspection of the work place. If there is no authorized employee representative, the department inspector shall consult with a reasonable number of employees.

D. Prior to or during any inspection of a work place, any employees or representative of employees employed in such work place may notify the department or the department inspector in writing of any violation of the Occupational Health and Safety Act which they have reason to believe exists in such work place. The department shall establish procedures for informal review of the decision made by the inspector, and, if no citation is issued with respect to the alleged violation, it shall furnish the employee requesting such review a written statement of the reasons for the department's final disposition of the case.

E. If an inspection reveals that employees are exposed to toxic materials or harmful physical agents at levels in excess of those prescribed by regulations of the board, the department shall provide the employees with access to the results of the inspection. The employer shall promptly notify the employees who are being exposed to the agents or materials in excess of the applicable regulations and inform them of the corrective action being taken or that review has been requested in accordance with Section 50-9-17 NMSA 1978.

F. It is unlawful for any person to give advance notice of any inspection to be conducted under the Occupational Health and Safety Act without the written approval of the secretary or the secretary's authorized representative.

G. The board shall adopt regulations to implement this section.

History: 1953 Comp., § 59-14-9, enacted by Laws 1972, ch. 63, § 9; 1975, ch. 290, § 7; 1983, ch. 49, § 1; 1993, ch. 322, § 8.

The 1993 amendment, effective April 8, 1993, substituted "department's" for "agency's" and "department" for "agency" throughout the section and, in Subsection F, substituted "secretary" for "director" and made a minor stylistic change.

Regulations permitting private interviews are void. — The regulations promulgated by the environmental improvement board permitting private interviews of employees by the division inspector are void. Kent Nowlin Constr., Inc. v. Envtl. Improvement Div., 1982-NMSC-094, 99 N.M. 294, 657 P.2d 621.

Employees may request that counsel of their choosing be present during interviews by the environmental improvement division, unless such counsel obstructs and impedes the division's investigation. The employee's counsel may be company counsel. Kent Nowlin Constr., Inc. v. Envtl. Improvement Div., 1982-NMSC-094, 99 N.M. 294, 657 P.2d 621.

Employers are allowed to have company counsel or representatives present during agency interviews with employees. Kent Nowlin Constr., Inc. v. Envtl. Improvement Div., 1982-NMSC-094, 99 N.M. 294, 657 P.2d 621.

Prison inmates may not file complaint. — Notwithstanding the fact that prison industries must comply with occupational health and safety standards, inmates engaged in prison operated industries or enterprises are not "employees" of the penitentiary for purposes of filing an occupational health and safety complaint with the environmental improvement division. 1981 Op. Att'y Gen. No. 81-23.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 61 Am. Jur. 2d Plant and Job Safety - OSHA and State Laws §§ 132, 137, 138.

Validity, under federal constitution, of provisions of Occupational Safety and Health Act of 1970 (29 U.S.C.S. §§ 651 et seq.) relating to inspections, enforcement of civil penalties, and administrative or judicial review, 34 A.L.R. Fed. 82.

Right, under § 8(e) of Occupational Safety and Health Act (29 U.S.C.S. § 657(e)), of representative of employer or employees to accompany inspector during OSHA inspection, 35 A.L.R. Fed. 47.

Admissibility of evidence obtained by unconstitutional search in proceedings under Occupational Safety and Health Act (29 USCS § 651 et seq.), 67 A.L.R. Fed. 724.