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- Employment Law Guide A Companion to the FirstStep Employment Law Advisor |
Safety and Health Standards: Occupational Safety and Health
Updated: September 2009
Occupational Safety and Health Act of 1970 (OSH Act)(http://www.osha.gov/pls/oshaweb/owasrch.search_form?p_doc_type=OSHACT&p_toc_level=0&p_keyvalue=OshAct_toc_by_sect.html) Who is CoveredThe Occupational Safety and Health Act of 1970 (OSH Act) is administered by the Occupational Safety and Health Administration (OSHA). In general, the OSH Act covers all employers and their employees in the 50 states, the District of Columbia, Puerto Rico, and other U.S. territories. Coverage is provided either directly by the federal Occupational Safety and Health Administration or by an OSHA-approved state job safety and health plan. Employees of the U.S. Postal Service also are covered. The Act defines an employer as any "person engaged in a business affecting commerce who has employees, but does not include the United States or any state or political subdivision of a State." Therefore, the Act applies to employers and employees in such varied fields as manufacturing, construction, longshoring, agriculture, law and medicine, charity and disaster relief, organized labor, and private education. The Act establishes a separate program for federal government employees and extends coverage to state and local government employees only through the states with OSHA-approved plans. The Act does not cover:
Basic Provisions/RequirementsThe Act assigns OSHA two regulatory functions: setting standards and conducting inspections to ensure that employers are providing safe and healthful workplaces. OSHA standards may require that employers adopt certain practices, means, methods, or processes reasonably necessary and appropriate to protect workers on the job. Employers must become familiar with the standards applicable to their establishments and eliminate hazards. Compliance with standards may include implementing engineering controls to limit exposures to physical hazards and toxic substances, implementing administrative controls, as well as ensuring that employees have been provided with, have been effectively trained on, and use personal protective equipment when required for safety and health, where the former controls cannot be feasibly implemented. Employees must comply with all rules and regulations that apply to their own actions and conduct. Even in areas where OSHA has not set forth a standard addressing a specific hazard, employers are responsible for complying with the OSH Act's "general duty" clause. The general duty clause [Section 5(a)(1)] states that each employer "shall furnish . . . a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." The Act encourages states to develop and operate their own job safety and health programs. OSHA approves and monitors these “state plans,” which operate under the authority of state law. There are currently 27 OSHA State Plan States, of which 22 states and jurisdictions operate complete state plans (covering both the private sector and state and local government employees) and four (Connecticut, New Jersey, New York, and the Virgin Islands) that cover state and local government employees only. States with OSHA-approved job safety and health plans must set standards that are at least as effective as the equivalent federal standard. Most, but not all of the state plan states, adopt standards identical to the federal ones. Federal OSHA Standards. Standards are grouped into four major categories: general industry (29 CFR 1910); construction (29 CFR 1926); maritime (shipyards, marine terminals, longshoring—29 CFR 1915-19); and agriculture (29 CFR 1928). While some standards are specific to just one category, others apply across industries. Among the standards with similar requirements for all sectors of industry are those that address access to medical and exposure records, personal protective equipment, and hazard communication.
Employee RightsThe Act grants employees several important rights. Among them are the right to file a complaint with OSHA about safety and health conditions in their workplaces and, to the extent permitted by law, have their identities kept confidential from employers; contest the amount of time OSHA allows for correcting violations of standards; and participate in OSHA workplace inspections. Private sector employees who exercise their rights under OSHA can be protected against employer reprisal, as described in Section 11(c) of the OSH Act. Employees must notify OSHA within 30 days of the time they learned of the alleged discriminatory action. OSHA will then investigate, and if it agrees that discrimination has occurred, OSHA will ask the employer to restore any lost benefits to the affected employee. If necessary, OSHA can initiate legal action against the employer. In such cases, the worker pays no legal fees. The OSHA-approved state plans have parallel employee rights provisions, including protections against employer reprisal. Recordkeeping, Reporting, Notices and PostersNotices and PostersPoster. All covered employers are required to display and keep displayed the OSHA “Job Safety and Health: It’s the Law(http://www.osha.gov/Publications/poster.html)” poster unless the employer’s workplace is located in a state that operates an OSHA-approved state plan(http://www.osha.gov/dcsp/osp/index.html). There is a separate poster for Federal agencies(http://www.osha.gov/Publications/fedposter.html). The OSHA poster must be displayed in a conspicuous place where employees can see it. Reproductions or facsimiles of the poster shall be at least 8 1/2 by 14 inches with 10 point type. This poster is also available in Spanish(http://www.osha.gov/Publications/osha3167.pdf). Posting of the notice in languages other than English is not required. Each state or territory with a state plan has a poster that employers covered by the plan must display. State plan OSHA offices(http://www.osha.gov/dcsp/osp/states.html) can be contacted to obtain a copy. Contact your Federal OSHA office(http://www.osha.gov/html/oshdir.html) or your state plan office to determine coverage. Notices. Employees, former employees and their representatives have the right to review the OSHA Form 300, Log of Work-related Illnesses and Injuries, in its entirety. Employers are required to post the Summary of Work-related Injuries and Illnesses (Form300A)(http://www.osha.gov/recordkeeping/new-osha300form1-1-04.pdf#Page=8) in a visible location so that employees are aware of the injuries and illnesses that occur in their workplace. Employers are required to post the Summary Form (300A) by February 1 of the year following the year covered by the form and keep it posted until April 30 of that year. RecordkeepingOSHA-approved state plan states(http://www.osha.gov/dcsp/osp/) must adopt occupational injury and illness recording requirements that are substantially identical to the Federal OSHA requirements. Since each state plan’s requirements may differ slightly, the Federal OSHA requirements are described below. Records for employers with 10 or fewer employees. Employers with 10 or fewer employees at all times during the last calendar year do not need to keep OSHA injury and illness records unless OSHA or the Bureau of Labor Statistics (BLS) informs them in writing that records must be kept. However, all employers covered by the OSH Act must report to OSHA any workplace incident that results in a fatality or the hospitalization of three or more employees. Records for employers in certain industries. If an employer’s business is in an industry that is classified as low hazard, the employer does not need to keep records unless OSHA or the BLS asks them to do so in writing. The partial industry classification exemption(http://www.osha.gov/recordkeeping/ppt1/RK1exempttable.html) applies to individual establishments. If a company has several establishments engaged in different classes of business activities, some of the company’s establishments may be required to keep records, while others may be exempt. Industries currently designated as low-hazard include:
Business establishments classified in agriculture, mining, construction, manufacturing, transportation, communication, electric, gas and sanitary services, or wholesale trade are not eligible for the partial industry classification exemption. All other employers. Employers are required to use the Form 300 Log of Work-Related Injuries and Illnesses to classify work-related injuries and illnesses and to note the extent and severity of each case. When an incident occurs, the Log is used to record specific details about what happened and how it happened. If the employer has more than one establishment or site, separate records for each physical location that is expected to remain in operation for one year or longer must be kept. Employers are required to keep a separate Log (Form 300) and Summary of Work-Related Injuries and Illnesses (Form 300A) for each physical location that is expected to be in operation for one year or longer. The Injury and Illness Incident Report (Form 301) is filled out when a recordable work-related injury or illness has occurred. Together with the Form 300 and Form 300A, these forms(http://www.osha.gov/recordkeeping/RKforms.html) help the employer and OSHA develop a picture of the extent and severity of work-related incidents. Employers must record work-related injuries and illnesses that result in:
Employers must record any significant work-related injuries and illnesses that are diagnosed by a physician or other licensed health care professional, such as any work-related case involving cancer, chronic irreversible disease, a fractured or cracked bone or a punctured eardrum. Employers must record the following conditions when they are work-related:
Employers do not have to record certain injury and illness incidents such as a visit to a doctor solely for observation and counseling or those requiring first aid treatment only. For more information see the full list of Non-recordable Injury and Illness Incidents(http://www.dol.gov/elaws/firststep/OSHA_non-recordable.htm). ReportingOSHA-approved state plan states(http://www.osha.gov/dcsp/osp/) must adopt occupational injury and illness reporting requirements that are substantially identical to the Federal OSHA requirements. Since each state plan’s requirements may differ slightly, the Federal OSHA requirements are described below. All employers must report any workplace incident to OSHA within eight hours after the death of any employee from a work-related incident or the in-patient hospitalization of three or more employees. Employers must orally report the fatality/multiple hospitalization by telephone or in person to the Area OSHA office that is nearest to the site of the incident. Employers may also use the OSHA toll-free central telephone number, 1-800-321-OSHA (1-800-321-6742). Penalties/SanctionsEvery establishment covered by the Act is subject to inspection by OSHA compliance safety and health officers (CSHOs). These occupational safety and health professionals possess the knowledge and experience required to conduct workplace inspections; they have been thoroughly trained in recognizing safety and health hazards and in enforcing OSHA’s Standards. In states with their own OSHA-approved state plan, pursuant to state law, state officials conduct inspections, issue citations for violations, and propose penalties in a manner that is at least as effective as the federal program. OSHA conducts two general types of inspections: programmed and unprogrammed. Establishments with high injury rates receive programmed inspections, while unprogrammed inspections are used in response to fatalities, catastrophes, and complaints (which are further addressed by OSHA’s complaint policies and procedures). Various OSHA publications and documents detail OSHA’s policies and procedures for inspections, including OSHA’s Field Operations Manual(http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-148.pdf). Types of violations that may be cited and the penalties that may be proposed: The OSH Act authorizes OSHA to treat certain violations, which have no direct or immediate relationship to safety and health, as de minimus, requiring no penalty or abatement. OSHA does not issue citations for de minimus violations.
Other than serious violation: A violation that has a direct
relationship to job safety and health, but probably would not cause death or
serious physical harm. A proposed penalty of up to $7,000 for each violation is
discretionary.
Serious violation: A violation where a substantial probability that death or serious physical harm could result and where the employer knew, or should have known, of the hazard. A penalty of up to $7,000 for each violation must be proposed. Willful violation: A violation that the employer intentionally and knowingly commits. The employer either knows that what he or she is doing constitutes a violation, or is aware that a condition creates a hazard and has made no reasonable effort to eliminate it. The Act provides that an employer who willfully violates the Act may be assessed a civil penalty of not more than $70,000 but not less than $5,000 for each violation. Proposed penalties for other-than-serious and serious violations may be adjusted downward depending on the employer’s good faith (demonstrated efforts to comply with the Act through the implementation of an effective health and safety program), history of violations, and size of business. Proposed penalties for willful violations may be adjusted downward depending on the size of the business. Usually no credit is given for good faith. If an employer is convicted of a willful violation of a standard that has resulted in the death of an employee, the offense is punishable by a court imposed fine or by imprisonment for up to six months, or both. A fine of up to $250,000 for an individual, or $500,000 for an organization [authorized under the Omnibus Crime Control Act of 1984 (1984 OCCA), not the OSH Act], may be imposed for a criminal conviction. Repeat violation: A violation of any standard, regulation, rule, or order where, upon re-inspection, a substantially similar violation is found. Repeat violations can bring fines of up to $70,000 for each such violation. To serve as the basis for a repeat citation, the original citation must be final; a citation under contest may not serve as the basis for a subsequent repeat citation. Failure to abate violation: Failure to correct a prior violation may bring a civil penalty of up to $7,000 for each day the violation continues beyond the prescribed abatement date. Citation and penalty procedures may differ somewhat in states with their own OSH programs. Appeals process The following outlines procedures for appealing OSHA citations and penalties.
Appeals by employees and employers: If a complaint from an employee
prompted the inspection, the employee or authorized employee representative may
request an informal review of any decision not to issue a citation.
Employees may not contest citations, amendments to citations, penalties, or lack of penalties. They may contest the time allowed in the citation for abatement of a hazardous condition. They also may contest an employer's Petition for Modification of Abatement (PMA), which requests an extension of the abatement period. Employees who wish to contest the PMA must do so within 10 working days of its posting or within 10 working days after an authorized employee representative has received a copy. Within 15 working days of the employer's receipt of the citation, the employer may submit a written objection to OSHA. If the PMA requests an abatement date that is two years or less from the issuance date of the citation, the Area Director has the authority to approve or object to the petition. Any PMA requesting an abatement date that is more than two years from the issuance date of the citation requires the approval of the Regional Administrator as well as the Area Director. If the PMA is approved, the Area Director shall notify the employer and the employee representatives by letter. The Area Director or Regional Administrator (as appropriate), after consultation with the RSOL, shall object to a PMA where the evidence supports non-approval (e.g., employer has taken no meaningful abatement action at all or has otherwise exhibited bad faith). In such cases, all relevant documentation shall be sent to the Review Commission in accordance with §1903.14a(d). Both the employer and the employee representatives shall be notified of this action by letter, with return receipt requested. Letters notifying the employer or employee representative of the objection shall be mailed on the same date that the agency objection to the PMA is sent to the Review Commission. Employees may request an informal conference with OSHA to discuss any issues raised by an inspection, citation, notice of proposed penalty, or the employer's notice of intention to contest. Informal conferences: When issued a citation or notice of a proposed penalty, an employer may request an informal conference with OSHA's Area Director to discuss the case. Employee representatives may be invited to attend the meeting. To avoid prolonged legal disputes, the Area Director is authorized to enter into settlement agreements that may revise citations and penalties. Notice of contest: If the employer decides to contest the citation, the time set for abatement or the proposed penalty, he or she has 15 working days from the time the citation and proposed penalty are received in which to notify the OSHA Area Director in writing. An orally expressed disagreement will not suffice. This written notification is called a "Notice of Contest." There is no specific format for the Notice of Contest. However, it must clearly identify the employer's basis for contesting the citation, notice of proposed penalty, abatement period, or notification of failure to correct violations. To better identify the scope of the contest, it also should identify the inspection number and citation number(s) being contested. A copy of the Notice of Contest must be given to the employees' authorized representative. If any affected employees are unrepresented by a recognized bargaining agent, a copy of the notice must be posted in a prominent location in the workplace, or else served personally upon each unrepresented employee. Appeal review procedure: If the written Notice of Contest has been filed within 15 working days, the OSHA Area Director forwards the case to the Occupational Safety and Health Review Commission (OSHRC). The Commission is an independent agency not associated with OSHA or the Department of Labor. The Commission assigns the case to an Administrative Law Judge (ALJ). The ALJ may disallow the contest if it is found to be legally invalid, or a hearing may be scheduled for a public place near the employer's workplace. The employer and the employees have the right to participate in the hearing; the OSHRC does not require that they be represented by attorneys. Once the ALJ has ruled, any party to the case may request a further review by OSHRC. Also, any of the three OSHRC commissioners may individually move to bring a case before the Commission for review. Commission rulings may be appealed to the U.S. Courts of Appeals. Appeals in state plan states: States with their own occupational safety and health programs have their own systems for review and appeal of citations, penalties, and abatement periods. The procedures are generally similar to federal OSHA's, but a state review board or equivalent authority hears cases. Relation to State, Local, and Other Federal LawsThe OSH Act covers all private sector working conditions that are not addressed by safety and health regulations of another federal agency under other legislation. OSHA also has the authority to monitor the safety and health of federal employees. Federal agency heads are responsible for the safety and health of federal employees. The OSHA-approved state plan states extend their coverage to state and local government employees. Finally, OSHA is also responsible for administering a number of whistleblower laws relating to safety and health as described in the Whistleblower Protection(http://www.dol.gov/compliance/guide/whistle.htm) section of this Guide and OSHA’s Whistleblower Protection Web page(http://www.osha.gov/dep/oia/whistleblower/index.html). Compliance Assistance AvailableThe Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Occupational Safety and Health Act. Among the many resources available are:
Additional compliance assistance, including explanatory brochures, fact sheets, and regulatory and interpretive materials, is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-osha.htm) Web page. To help the public understand and apply its standards and regulations, OSHA provides a number of print and Web-based tools, including fact sheets, booklets, Expert Advisors, eTools, and Safety and Health Topics pages. OSHA has a compliance assistance section(http://www.osha.gov/dcsp/compliance_assistance/index.html) on its Web site that provides links to these materials. A variety of information is also available on OSHA’s Publications Web site(http://www.osha.gov/pls/publications/pubindex.list), including online publication order forms, the OSHA poster, and guidance on OSHA recordkeeping. Publications can also be ordered from the OSHA Publications Office at 1-202-693-1888. Because states with OSHA-approved job safety and health programs adopt and enforce their own standards under state law, copies of these standards can be obtained from the individual states. Many are available through state Web sites, which are linked from OSHA's State Occupational Safety and Health Plans Web page(http://www.osha.gov/fso/osp/index.html). Cooperative Programs. OSHA offers a number of opportunities for employers, employees, and organizations to work cooperatively with the Agency. OSHA’s major cooperative programs are the Voluntary Protections Program (VPP), the Safety and Health Achievement Recognition Program (SHARP), OSHA Challenge, the Alliance Program, and the OSHA Strategic Partnership Program (OSPP). For further information on OSHA’s cooperative programs, visit the Cooperative Programs section of OSHA’s Web site(http://www.osha.gov/dcsp/compliance_assistance/index_programs.html).
Voluntary Protection Programs: The Voluntary Protection Programs (VPP)
are aimed at extending worker protection beyond the minimum required by OSHA
standards. The VPP is designed to:
An employer may apply for VPP at the nearest OSHA regional office(http://www.osha.gov/html/RAmap.html). OSHA reviews an employer's VPP application and visits the worksite to verify that the safety and health program described is in effect at the site. All participants must send their injury information annually to their OSHA regional offices. Sites participating in the VPP are not scheduled for programmed inspections. However, OSHA handles any employee complaints, serious accidents/catastrophes, or fatalities according to routine procedures. The VPP is available in states under federal jurisdiction. Some states operating OSHA-approved state plans have similar programs. Additionally, all OSHA-approved state plans that cover private-sector employees in the state operate similar programs. Interested companies in these states should contact the appropriate state agency for more information. Safety and Health Achievement Recognition Program (SHARP): This program recognizes small employers who operate an exemplary safety and health management system. Employers who are accepted into SHARP are recognized as models for worksite safety and health. Upon receiving SHARP recognition, the worksite will be exempt from programmed inspections during the period that the SHARP certification is valid. To participate in SHARP, an employer must contact its state’s Consultation Program and request a free consultation visit that involves a complete hazard identification survey. OSHA Challenge: This program provides opportunities for employers to work with OSHA and qualified volunteers (Challenge Administrators) to develop safety and health management systems (SHMS) on par with VPP and SHARP. OSHA Challenge breaks down SHMS implementation in three stages. For each stage, the participants identify actions, documentation, and outcomes. Unique aspects of OSHA Challenge include: no application prerequisites for participants except for a letter of commitment stating that they will follow the program and strive for safety and health excellence; no time constraints to complete the stages, which allows participants to work at their own level and pace; and the use of Challenge Administrators experienced in SHMS to assist participants, which limits the OSHA resources needed to manage the program. Alliance Program: Through the Alliance Program, OSHA works with businesses, trade and professional organizations, unions, educational institutions, and other government agencies. Alliance Program participants work with OSHA to leverage resources and expertise to help develop compliance assistance tools, training opportunities, and other information to help employers and employees prevent on-the-job injuries, illnesses, and fatalities. OSHA’s Alliances with organizations in industries such as plastics, healthcare, maritime, chemical, construction, paper and telecommunications, among others, are working to address safety and health hazards with at-risk audiences, such as youth, immigrant workers, and small business. Strategic Partnership Program: In this program, OSHA enters into an extended, voluntary, cooperative relationship with employers, associations, unions, and/or councils. Partnerships often cover multiple worksites, and in some instances, affect entire industries. Partner worksites may be very large, but most often they are small businesses averaging 50 or fewer employees. Strategic Partnerships are designed to encourage, assist, and recognize efforts to eliminate serious hazards and achieve a high level of worker safety and health. All Partnerships emphasize sustained efforts and continuing results beyond the typical three-year duration of the agreement. Training and education: OSHA has more than 70 full-service field offices that offer a variety of informational services, such as publications, technical advice, audio-visual aids on workplace hazards, and lecturers for speaking engagements. Each of these field offices has an OSHA Compliance Assistance Specialist (CAS(http://www.osha.gov/dcsp/compliance_assistance/cas.html)). CASs provide general information about OSHA standards and compliance assistance resources, and are available for seminars, workshops, and speaking events. CASs promote OSHA’s cooperative programs and also encourage employers to take advantage of OSHA’s training resources and the tools available on the OSHA Web site(http://www.osha.gov/). The OSHA Training Institute in Arlington Heights, Illinois, provides basic and advanced training and education in safety and health for federal and state compliance safety and health officers; state consultants; other federal agency personnel; and private sector employers, employees, and their representatives. Course topics include electrical hazards, machine guarding, ventilation, and ergonomics, among others. The OSHA Training Institute has partnered with other training and education institutes to conduct Training Institute courses. These Education Centers(http://www.osha.gov/dte/edcenters/index.html), which are located throughout the country, provide additional opportunities for the public to receive training on safety and health topics. Consultation services: Consultation assistance is available to employers who want help in establishing and maintaining safe and healthful workplaces. Largely funded by OSHA, the service is available in every state and territory. It is provided at no cost to the employer. Primarily targeted toward smaller employers with more hazardous operations, the consultation service is delivered by state government agencies or universities employing professional safety and health consultants. On-site OSHA consultation assistance includes an opening conference with the employer to explain the ground rules for consultation, a walk through the workplace to identify specific hazards and to examine those aspects of the employer's safety and health program that relate to the scope of the visit, and a closing conference. Later, the consultant sends a report of findings and recommendations to the employer. Unlike OSHA’s enforcement program, there are no citations or penalties issued. This process begins with the employer's request for consultation, which must include a commitment to correct any serious safety and health hazards identified. The consultant will not report possible violations of OSHA standards to OSHA enforcement staff unless the employer fails or refuses to eliminate or control worker exposure to any identified serious hazard or imminent danger. Should this occur, OSHA may investigate and begin enforcement action. The employer must also agree to allow the consultant to confer freely with employees during the on-site visit. Additional information about consultation assistance, including a directory of OSHA funded consultation projects, can be found on OSHA's Consultation Program Web page(http://www.osha.gov/dcsp/smallbusiness/consult.html). Information sources: Information about state plans, VPPs, consultation programs, and inspections can be obtained from the nearest OSHA regional or area office(http://www.osha.gov/html/RAmap.html). Area offices are listed in local telephone directories under the U.S. Department of Labor. Contact information for regional and area offices, as well as state plans and consultation programs can also be found on the OSHA Web site(http://www.osha.gov/). OSHA’s Office of Small Business Assistance(http://www.osha.gov/dcsp/osba/index.html) administers OSHA’s On-Site Consultation Program and serves as liaison and point of contact with the Agency for small businesses. OSHA offers many services designed to help small businesses and welcomes comments and suggestions from small business owners and their employees. DOL ContactsOccupational Safety and Health Administration
(OSHA) (http://www.osha.gov)
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