Almost 100 million Americans work at a daily job. Until 1970, however, there was no comprehensive law to protect workers from workplace and safety hazards.
When the Occupational Safety and Health Act of 1970 (OSHA) was passed, job related accidents caused 14,000 worker deaths per year, 2 million workers were disabled and there were 300,000 new cases of occupational disease reported. Ten times more person-days were lost from job-related disabilities than from strikes.
The purpose of OSHA was “…to assure so far as possible every working man and woman in the Nation safe and healthy working conditions and to preserve our human resources.”
OSHA covers all employers and their employees in the states and territories but does not cover the United States or any State or its subdivisions as employers. OSHA does no cover self employed persons, family farm workers or working conditions regulated by other federal laws. Under the Act, Federal Agency heads are responsible for worker safety in their units and the safety standards are similar to those promulgated for private sector employees. Agency heads are required to conduct comprehensive training and do compliance evaluations and reports. Inspections are conducted in response to employee complaints. OSHA provisions do not apply to state and local governments as employers.
STANDARDS
OSHA develops standards for health and safety which apply to various industries. Standards may be set by OSHA upon its own initiative or in response to petitions filed by other parties, including the Secretary of Health and Human Services(HHS), the National Institute for Occupational Safety and Health (NIOSH), state and local governments, any recognized standards producing organization, employer or labor representatives, or any other interested person.
If OSHA determines that standards are needed, any of several advisory committees may be asked to develop specific standards. NIOSH does research on various safety and health problems and provides technical assistance to OSHA. NIOSH may make workplace investigations, gather testimony from employers and employees and require employers to measure and make reports on suspected hazards. Medical examinations or tests of employees may be ordered. If they are strictly for research, the federal government will pay for the tests.
If a new OSHA standard is proposed, notice is published in the Federal Register and the public is given 60 days or more to comment. Interested parties may submit written arguments and evidence and request a public hearing. After the close of the comment period and public hearing, if any, OSHA must publish the full and final text of any standard and the date it will be effective, along with reason for the standard. OSHA may publish a ruling that no standard or amendment to an existing standard is needed. Under certain conditions OSHA may issue an Emergency Temporary Standard which takes effect immediately and lasts until permanent standard is issued. Any person who is adversely effected by a permanent or temporary standard may, within 60 days, file a petition for review with U.S. Court of Appeals. Filing an appeal does not delay the enforcement of a standard, however, unless the court orders it. Employers may ask OSHA for a variance from a standard if they cannot comply by the effective date due to shortages of materials, equipment etc. or if they can show they offer safety methods that give employees protection “at least as effective” as OSHA requirements.
RECORD KEEPING AND REPORTING
Employers of 11 or more employees must maintain records of occupational injuries and diseases as they re reported. Forms are maintained by the business, not filed with any agency. They must be maintained for a period of 5 years. OSHA record keeping is not required of certain retail and service industries; however, all must comply with OSHA standards, display the OSHA poster and report to OSHA within 48 hours any accident that results in a fatality or the hospitalization of 5 or more employees.
REQUIRED EMPLOYEE NOTICE
Federal OSHA and states with their own programs require that each employer post the following at a prominent location:
• Job Safety and Health Protection workplace poster(OSHA 2202 or state equivalent) informing employees of the rights and responsibilities.
•Summaries of petitions for variance from standards or record keeping.
•Copies of OSHA citations for violations. Posted for 3 days or until corrected.
•Log and Summary of Occupational Injuries and Illnesses (OSHA No. 200) must be posted no later than February 1, and remain in place until March1
•Employees have the further right to examine any records kept by employers regarding their exposure to hazardous materials or the results of medical tests.
WORKPLACE INSPECTIONS
To enforce its standards, OSHA may inspect any establishment covered by the law. This is done by Compliance officers. Inspections are conducted without advanced notice. Under special circumstances OSHA may give advance notice of no more than 24 hours. These include imminent danger situations, inspections that take place after business hours, that require special preparation, cases where employer and employee representatives must be present, or situations where the OSHA are director determines that notice will produce a more thorough or effective inspection. (whatever that means) Employers receiving advance notice must inform their employees’ representative or arrange for OSHA to do so. If the employer does not voluntarily consent to a search when an OSHA Compliance Officer appears, a search warrant must be obtained. Marshall v. Barlow’s, Inc., Supreme Court of the US , 436 U.S. 307 (1978).
Due to limited staff, inspections are prioritized as follows: First priority are sites which involve deaths or serious injuries. Second priority are valid employee complaints. Third priority are target programs aimed at high-hazard industries. Four priority are general random inspections. [top]
CITATIONS AND PENALTIES
Under Section 17 of OSHA civil sanctions are provided for any willful, repeated, serious or non-serious violation of the Act or any standard, rule, or order made pursuant to the Act. Civil sanctions are a fine for each day a violation remains uncorrected. A willful violation may result in a criminal sanction. It is also a crime to give unauthorized advance notice of inspections, for making false statements, representations or certifications in any application, record, report, plan or other document filed or maintained under the Act.
In reviewing the Compliance Officer’s Investigative Report the Area Director has specific guidelines as follows:
• Willful- violations which cause an employee’s death may result in criminal prosecution under OSHA or under State Law. Willfullness is established by a conscious, intentional, deliberate decision, or a careless disregard for the requirements of the Act, or an indifference to employee safety. The US Department of Justice does Federal criminal prosecutions. Civil penalties for willful violations range up to $70,000 for each violation, with the minimum being $5,000 for each violation.
• Repeated- Penalties for repeated violations may range up to $70,000 per violation per day.
•Serious- A violation where there is a substantial likelihood that serious physical harm or death could result. Up to $7,000 per violation per day.
•Nonserious- A violation which has an immediate relationship to job safety but will probably not cause death or serious injury. There is no penalty unless 10 or more are cited. The maximum penalty is $7,000 per violation per day.
•De minimus- A violation which has no immediate relationship to job safety. A notice is issued but no citation or penalty.
Citations and proposed penalties are sent to the employer by certified mail. Abatement must usually be made within 30 days. The employer has 15 days to challenge the citation, the period of abatement, or the penalty. An administrative law judge then makes findings of fact and rulings of law. Employees and interested parties may participate. After this, any aggrieved party may petition for an appeal to the Occupational Safety and Health Review Commission (OSHRC). This is discretionary with the Commission. The Commission has wide powers to increase, modify or vacate a penalty. After all administrative remedies have been exhausted, a party may obtain judicial review in the appropriate United States Court of Appeals. The court will overturn the prior ruling only if there is an obvious abuse of discretion.
HAZARD COMMUNICATION
A rule established by OSHA to insure that workers know about chemical hazards and how to protect themselves. Chemical manufacturers an importers must convey hazard information (they are required to review “available” scientific information or substances) to downstream employers through labels on containers and Material Safety Data Sheets (MSDS’s). In addition, all covered employers must convey this information to employees through labels on containers, MSDS’s and training.
PROTECTION FROM RETALIATION
Section 11(c) of OSHA protects employees from retaliation for exercising rights granted by the act. In Whirlpool Corporation V. Marshall, Supreme Court of the United States, 445 US 1(1980), a regulation of the Secretary of Labor was upheld which states an employee has the right to refuse to perform a job if there is reasonable fear of death or injury and the employee is unable to advise OSHA of the danger before the refusal. Remedies include reinstatement and backpay.
WHISTLE BLOWER PROTECTION ACT OF 1989
Present and former federal employees can file reports of reprisal with the Office of Special Counsel, US Merit Systems Protection Board.
SOURCES OF MORE INFORMATION
The Federal Register contains all published OSHA standards. It is available in Law Libraries and many public libraries. Each year, the Office of the Federal Register publishes all current regulations and standards in the Code of Federal Regulations (CFR). The OSHA regulations are located in Title 29 of the CFR, Part 1900-1999. These too are found in many libraries and Title 29 sections may be purchased as paper books from the Superintendent of Documents, US Government Printing Office, Wash. , DC 20402 or from any US Government Bookstore. Just buy the volumes that apply to your type workplace, for ex. General Industry Regulations or Construction Regulations. A useful publication is “OSH Act, OSHA Standards, Inspections, Citations and Penalties,” and “Chemical Hazard Communication” booklets prepared by the Voluntary Compliance Outreach Program of OSHA and available from the US Government Printing Office.
Since states adopt their own standards under state law, copies of the standards may be obtained from their respective Industrial Relations Department.[top]
