The OSH Act, Standards, and Liability

1
Chapter 6

• The OSH Act, Standards, and Liability

2
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

3
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.

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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.

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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)

6
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.

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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.

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OSHAs 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.

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OSHAs 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.

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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.

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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.

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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.

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Appealing an OSHA Citation

• Employee Appeals
• 1. The amount of time given to an employer to
  correct a hazardous condition.
• 2. Employers 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 OSHAs 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).

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OSHAs 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.

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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
• ...

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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

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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 agencys 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.

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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.

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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.

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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 OSHAs mission and purpose?
• 3. List those who are exempted by coverage by
  OSHA.
• 6. Briefly describe OSHAs latest record keeping
  requirements.
• 7. What are OSHAs 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.