Chapter 6

The OSH Act, Standards, and Liability

Major Topics

• Rationale of the OSH Act• OSHA Standards• OSHA Record Keeping and Reporting• Workplace Inspections and Enforcement• Citations and Penalties• Appeals Process• Employer Rights and Responsibilities• Employee Rights and Responsibilities

Rationale for the OSH Act

• In 1970 Congress passed the OSA Act with the following stated purpose: “to assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources”.

OSHA Mission and Purpose• Encourage employers and employees to reduce workplace hazards.• Implement new safety and health programs.• Improve existing safety and health programs.• Encourage research that will lead to innovative ways of dealing with workplace

safety and health problems.• Establish the rights of employers regarding the improvement of workplace

safety and health.• Establish the rights of employees regarding the improvement of workplace

safety and health.• Monitor job-related injuries and illnesses through a system of reporting and

record keeping.• Establish training programs to increase the number of safety and health

professionals and to improve their competence continually.• Establish mandatory workplace safety and health standards and enforce those

standards.• Provide for the development and approval of state-level workplace safety and

health programs.• Monitor, analyze, and evaluate state-level safety and health programs.

Exempted from coverage by OSHA

• Organizations with 10 or fewer employees are exempted from OSHA inspections and the requirements to maintain injury and illness records.

• Persons who are self employed• Family farms that employ only immediate

members of the family• Federal agencies that are covered by other

federal statutes• State and local governments• Coal mines (covered by mining specific laws)

Difference between OSHA Standard and OSHA Regulation

• OSHA Standards address specific hazards such as working in confined spaces, handling hazardous waste, or working with dangerous chemicals.

• OSHA Regulations do not apply to specific hazards, and do not require the rigorous review process that standards go through.

Passage of a new standard; request for

temporary variance; appealing a standard • OSHA must publish its intentions of passage of a new standard by

publishing its intentions in the Federal Register. The notice of proposed rule making must explain the terms of the new rule. The advance notice of proposed rule making may be used when it is necessary to solicit input before drafting a rule.

• When an employer advises that it is unable to comply with a new standard immediately but may be able to if given additional time a temporary variance may be requested.

• A standard either permanent or temporary may be appealed by any person who is opposed to it. An appeal must be filed with the U.S. Courts of Appeals serving the geographic region in which the complainant lives or does business.

OSHA’s latest record keeping requirements

• Employers are required to keep injury and illness records for each location where they do business.

• Records must be maintained on an annual basis using special forms prescribed by OSHA (OSHA Form 300, 300A, and 301).

• Computer or electronic copies can replace paper copies.• Records are not sent to OSHA. They are maintained locally for a

minimum of three years. They must be available for inspection by OSHA at any time.

• OSHA Form 300 is used to record information about every work related death and any work related injury or illness that involves loss of consciousness, restricted work activity, job transfer, days away from work, or medical treatment beyond first aid. Injuries that require no more than first-aid procedures do not have to be recorded.

• OSHA Form 300A is used to summarize all injuries and illnesses that appear in Form 300.

• OSHA Form 301 must be completed within 7 calendar days of every incidence of a recordable injury or illness.

OSHA’s Reporting Requirements

• All occupational injuries and illnesses must be reported to OSHA if they result in one of the following:

• Death of one or more workers• One or more days away from work• Restricted motion or restrictions to the work that an

employee can do• Loss of consciousness of one or more workers• Transfer of an employee to another job• Medical treatment beyond in-house first aid• Any other condition listed in appendix B of the rule.

What employers are required to do to keep employees informed

• Employers are required to keep employees informed about safety and health issues that concern them.

• Employers are required to post the following material where employee information is normally displayed:

• 1. OSHA poster 2203 which explains employee rights and responsibilities as prescribed in the OSH Act.

• 2. Summaries of variance requests of all types.• 3. Copies of all OSHA citations received for failure to meet standards

(posted near the site of the violation). They must remain until the violation is corrected or for a minimum of 3 days, whichever is longer.

• 4. OSHA form 300 A (summary of workplace injuries or illnesses) – posted by February 1st and must remain until April 30th.

• In addition to the posting requirements, employers must also provide employees who request them with copies of the OSH Act and any OSHA rules that concern them. Employees must be given access to records of exposure to hazardous materials and medical surveillance that has been conducted.

Hypothetical OSHA Workplace Inspection from first step to last

• 1. The OSHA compliance officer presents his or her credentials to a company official.

• 2. The compliance officer conducts an opening conference with pertinent company officials and employee representatives. The following information is explained during the conference: why the plant was selected for inspection, the purpose of the inspection, its scope, and applicable standards.

• 3. After choosing the route and duration, the compliance officer makes the inspection tour. During the tour the compliance officer may observe, interview pertinent personnel, examine records, take readings, and make photographs.

• 4. The compliance officer holds a closing conference, which involves open discussion between the officer and the company and employee representatives. OSHA personnel advise company representatives of problems noted, actions planned as a result, and assistance available from OSHA.

Three types of OSHA citations and the penalties

• 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 $7000 for each violation is discretionary. May be adjusted downward by 95%.

• Serious violation: A violation in which there is a high probability that death or serious physical injury may result and that the employer knew or should have known of the hazard. OSHA proposes a mandatory penalty for each serious violation. May be adjusted downward.

• Willful violation: A violation that the employer intentionally and knowingly commits. Minimum penalty of $5000 for each violation. May be adjusted downwards depending on size of business and history.

Appealing an OSHA Citation• Employee Appeals:• 1. The amount of time given to an employer to correct a hazardous condition.• 2. Employer’s request for extension of abatement period.• Such appeals must be filed within 10 days of a posting.• Employer Appeals:• Employers may appeal a citation, an abatement period, or the amount of the

proposed penalty.• Before actually filing an appeal, an employer can ask for an informal meeting

with OSHA’s area director, who is empowered to revise citations, abatement periods and penalties.

• Formal appeals are of two types:• 1. A petition for modification of abatement (PMA) –employers who intend to

correct the situation, but need more time.• 2. Notice of Contest – employers who do not wish to comply with citation,

abatement period, and/or penalty. It must be done within 15 days of receipt of a citation or penalty notice.

• Area director forwards notice of contest to Occupational Safety and Health Review Commission (OSHRC).

OSHA’s Voluntary Protection Programs (VPPs)

• 1. Star Program: Injury rates below national average. Company must demonstrate management commitment, employee participation, excellent work sit analysis program, hazard prevention and control program, and comprehensive health and safety training program.

• 2. Merit Program: OSHA works with such companies to help them take the next step and achieve Star program recognition.

• 3. Demonstration Program: For companies that provide Star-quality worker protection.

• Companies that participate in any of the VPPs are exempt from regular OSHA inspections. However employee complaints or accidents are handled according to routine enforcement procedures.

Employer Responsibilities

• Provide a workplace free from hazards.• Be knowledgeable of mandatory OSHA standards and

make copies for employees on request.• Keep employees informed about OSHA• Continually examine workplace conditions to ensure that

they conform to standards• Minimize or reduce hazards• Make sure employees have and use safe tools and

equipment• Report to nearest OSHA office within 48 hours any fatal

accident or one that results in hospitalization of 5 or more employees

• ...

Employee Rights

• Section 11( c ) of the OSH Act:• Complain to an employer, union, OSHA, or any

government agency about job safety and health hazards

• File safety or health grievances• Participate in safety and health committee or in

union activities concerning job safety and health• Participate in OSHA inspections, conferences,

hearings, or other OSHA related activities• Ask employers for information about hazards

that may be present in the workplace

Purpose and organization of NIOSH

• National Institute of Occupational Safety and Health is part of the Department of Health and Human Services.

• (OSHA is part of the Department of Labor)• NIOSH has two broad functions: research and education.• The main focus of the agency’s research is on the toxicity levels and

human tolerance levels of hazardous substances (research component).

• Each year NIOSH publishes updated lists of toxic materials and recommended tolerance levels (educational component).

• In 1973 NIOSH became part of the Centers for Disease Control (CDC).

• NIOSH is unique among federal research institutions because it has the authority to conduct research in the workplace, and to respond to requests from employers and employees.

Legal terms related to workplace safety: negligence, liability, ability to pay, tort

• Negligence: means failure to take reasonable care or failure to perform duties in ways that prevent harm to humans or damage to property.

• Liability: is a duty to compensate as a result of being held responsible for an act or omission.

• Ability to Pay (deep pockets): Allows the court to access all damages against the defendant or defendants who have the ability to pay.

• Tort: is an action involving a failure to exercise reasonable care that may as a result lead to civil litigation.

Summary• The impetus for passing the OSH Act was that workplace accidents

were causing 14,000 deaths every year, 2.5 million workplace accidents, and 300,000 occupational diseases annually.

• The mission of OSHA is to ensure a safe and healthy workplace.• OSHA record keeping and reporting requirements apply to all

employers of 11 or more workers.• All records must be maintained using OSHA form 300, 301 and

300A.• OSHA requires employers to post OSHA poster 2203 and the

summary page of OSHA form 300.• OSHA is empowered to issue citations or penalties.• Employers can appeal, petition for modification, or contest a citation.

Home Work• Answer questions 1, 2, 3, 6, 7, 8, 11, 14, and 17 on page 135.• 1. Briefly explain the rationale for the OSH Act.• 2. What is OSHA’s mission and purpose?• 3. List those who are exempted by coverage by OSHA.• 6. Briefly describe OSHA’s latest record keeping requirements.• 7. What are OSHA’s reporting requirements?• 8. Explain what employers are required to do to keep employees

informed.• 11. List and explain three different types of OSHA citations.• 14. List 5 employer responsibilities.• 17. Define the following legal terms as they relate to workplace

safety: negligence, liability, ability to pay, tort.