OSHA INSTRUCTION STP 2-1.101 JULY 22, 1981 Office of State Programs

Subject: Prohibition of Sanctions Against Employees Under State Plans

A. Purpose. This instruction prohibits the application of sanctions against employees under State plans, except those sanctions listed under Paragraph F.1., Guidelines.

B. Scope. This instruction applies OSHA-wide.

C. Cancellation. This instruction cancels OSHA Instruction STP 2-1.8A, February 24, 1981.

D. Action.

1. Within 30 days of issuance of this instruction, Regional Administrators shall survey each State with a State plan to determine which States include in their plans provisions that may result in the application of sanctions against employees, except those sanctions listed under Paragraph F.1., Guidelines, and shall notify the Director, Federal Compliance and State Programs, of their findings.

2. Regional Administrators shall notify the State designees that State plan provisions, except those listed under Paragraph F.1., Guidelines, which could result in the application of sanctions may not be applied against employees. While this instruction does not require a State with a plan provision that may result in a prohibited employee sanction to submit a plan change deleting such a provision, States with such a plan provision are encouraged to do so.

3. Regional Administrators shall monitor the States' application of their sanction authorities and notify the Director, Federal Compliance and State Programs, of any instance in which a State applies a sanction against an employee, except those sanctions listed under paragraph F.1., Guidelines.

OSHA Instruction JULY 22, 1981 Office of State Programs

E. Background.

1. Section 5(b) of the Occupational Safety and Health Act of 1970 states that employees shall comply with the standards, rules, regulations, and orders that pertain to their own actions or conduct. However, there is no provision in the Act for direct enforcement of this obligation. On the contrary, the Act specifically places upon the employer the responsibility to assure safe and healthful working conditions.

2. The legislative history of the Act supports the conclusion that Congress did not intend to give the Secretary of Labor authority to apply sanc- tions against employees. The Senate committee, in adding the employee obligation provision in sec- tion 5(b) of the Act, stated that "final responsi- bility for compliance with the requirements of this Act remains with the employer." This indi- cates that in the committee's view there would be no direct enforcement against employees. Instead, enforcement of the employee obligation would be through citations against employers who would have the ultimate responsibility, through exercise of management perogatives, to assure that employees comply with their obligation. The Senate report on the legislation specifically states that it is the employer's duty "to assure compliance by his own employees."

3. OSHA's policy since the inception of the agency consistently has excluded the possibility that sanctions could be applied against employees under the Federal program, except in those circumstances clearly defined in the Act where "any person," including an employee, may be penalized for violation of advance notice restrictions or for making false statements. Despite this fact, it has been past OSHA policy that there is no absolute bar against inclusion of employee sanctions in State plans, but that any such sanction would be carefully evaluated to determine whether it weakens the effectiveness of the overall enforce- ment program. Potential adverse effects of

2

OSHA Instruction JULY 22, 1981 Office of State Programs

employee sanctions identified as a threat to program effectiveness include:

a. Transferring from the employer to employees responsibility for compliance with standards;

b. Creating controversy over whether an employee or the employer is responsible for a violation;

c. Inhibiting employees from exercising complaint rights, for fear of retaliation through countercomplaints;

d. Encumbering appellate and variance procedures with employee-initiated appeals and variance requests;

e. Interfering with the traditional right and responsibility of an employer to discipline employees.

4. OSHA has concluded that continuing to permit employee sanctions in State plans while barring them under the Federal program is not justified. The agency has now determined that the application of sanctions against employees under a State plan would render that State plan less effective than the Federal program.

F. Guidelines.

1. Within the context of this instruction, the application of a sanction against an employee under a State plan is prohibited, except in the following situations:

a. OSHA requires a State to apply a sanction, equivalent to the sanction provided for in section 17(f) of the Act, against an employee who gives unauthorized advance notice of an inspection (29 CFR 1902.3(f)).

b. A State may apply a sanction, equivalent to the sanction provided for in section 17(g) of the Act,

OSHA Instruction JULY 22, 1981 Office of State Programs

against an employee who gives a false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to the State's enabling legislation.

2. For the purpose of this instruction, it is prohibited to apply a sanction against an employee who removes or otherwise disregards an agency order (the so-called "red-tag" provisions) to close down dangerous equipment or worksites which constitute an imminent danger to employees. The prohibition of this type of employee sanction is based upon the premise that it is the employer's responsibility to assure employee compliance with "red-tag" provisions just as it is the employer's responsibility to assure employee compliance with standards.

Thorne G. Auchter Assistant Secretary

DISTRUBUTION: National, Regional and Area Offices All Compliance Officers State Designees NIOSH Regional Program Directors