Occupational Safety and Health Administration Law and Legal Definition
The Occupational Safety and Health Administration (OSHA) was established by the Williams-Steiger Occupational Safety and Health Act (OSH Act) of 1970, which took effect in 1971. OSHA's mission is to ensure that every working man and woman in the nation is employed under safe and healthful working conditions. Nearly every employee in the United States comes under OSHA's jurisdiction. The only exceptions are people who are self-employed, workers in mining and transportation industries (who are covered by other agencies), and most public employees. Thus, nearly every private employer in the United States needs to be cognizant of OSHA rules and regulations. OSHA is an administrative agency within the United States Department of Labor and is therefore administered by an assistant secretary of labor.
OSHA OBJECTIVES AND STANDARDS
OSHA seeks to make workplaces safer and healthier by making and enforcing regulations called standards in the OSH Act. The Act itself establishes only one workplace standard, which is called the "general duty standard." The general duty standard states: "Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." In the OSH Act, Congress delegated authority to OSHA to make rules further implementing the general duty standard.
Standards made by OSHA are published in the Code of Federal Regulations (CFR). The three types of regulations are called interim, temporary emergency, and permanent. Interim standards were applicable for two years after OSH Act was passed. For this purpose, OSHA was authorized to use the standards of any nationally recognized "standards setting" organization such as those of professional engineering groups. Such privately developed standards are called "national consensus standards." Temporary emergency standards last only six months and are designed to protect workers while OSHA goes through the processes required by law to develop a permanent standard. Permanent standards are made through the same processes as the regulations made by other federal administrative agencies.
As OSHA drafts a proposal for a permanent standard, it consults with representatives of industry and labor and collects whatever scientific, medical, and engineering data is necessary to ensure that the standard adequately reflects workplace realities. Proposed standards are published in the Federal Register. A comment period is then held, during which input is received from interested parties including, but not limited to, representatives of industry and labor. At the close of the comment period, the proposal may be withdrawn and set aside, withdrawn and re-proposed with modifications, or approved as a final standard that is legally enforceable. All standards that become legally binding are first published in the Federal Register and then compiled and published in the Code of Federal Regulations. Many of OSHA's permanent standards originated as national consensus standards developed by private professional organizations such as the National Fire Protection Association and the American National Standards Institute. Examples of permanent OSHA standards include limits for exposure of employees to hazardous substances such as asbestos, benzene, vinyl chloride, and cotton dust. See the OSHA Web site at www.osha.gov/SLTC/index.html for more information.
National Institute of Occupational Safety and Health
The OSH Act of 1970 also established a research institute called the National Institute of Occupational Safety and Health (NIOSH). Since 1973, NIOSH has been a division of the U.S. government's Centers for Disease Control (CDC). The purpose of NIOSH is to gather data documenting incidences of occupational exposure, injury, illness and death in the United States. This information, which is highly valued by OSHA, is gathered from a wide variety of sources, ranging from industry groups to labor unions, as well as independent organizations.
OSHA RECORD-KEEPING REQUIREMENTS
OSHA requires all companies subject to its workplace standards to abide by a variety of occupational regulations. One of OSHA's major requirements is that companies keep records on facets of their operations relevant to employee health and safety. All employers covered by the OSH Act are required to keep four kinds of records:
- Records regarding enforcement of OSHA standards
- Research records
- Job-related injury, illness, and death records
- Job hazard records
OSHA ENFORCEMENT OF STANDARDS
OSHA inspectors conduct planned or surprise inspections of work sites covered by the OSH Act to verify compliance with the OSH Act and standards promulgated by OSHA. The OSH Act allows the employer and an employee representative to accompany OSHA's representative during the inspection. In 1978, in Marshall v. Barlow, the United States Supreme Court declared that in most industries, employers have a right to bar an OSHA inspector from his/her premises if the inspector has not first obtained a search warrant.
If violations are found during an inspection, an OSHA citation may be issued in which alleged violations are listed, notices of penalties for each violation are given, and an abatement period is established. The abatement period is the amount of time the employer has to correct any violation(s). Penalties for a violation can be civil or criminal and vary depending on the nature of the violation (minor or serious, willful or non-willful, first offense of repeat offense). Penalties are naturally more severe for serious, repeated, willful violations. Since OSHA must refer cases to the United States Justice Department for criminal enforcement. OSHA has not made extensive use of criminal prosecution as an enforcement mechanism preferring instead to rely on the deterrent effect of civil penalties.
An employer has 15 days to contest an OSHA citation, and any challenge is heard by an Administrative Law Judge (ALJ) within OSHA. The ALJ receives oral and written evidence, decides issues of fact and law, and enters an order. If the employer is dissatisfied with that order, it can be appealed to the Occupational Safety and Health Review Commission, which will, in turn, enter an order. Finally, within 30 days of the issuance of that order, the employer or the Secretary of Labor can take the case to the United States federal court system by filing an appeal with a United States court of appeals.
OSHA AND ITS STATE COUNTERPARTS
Pursuant to the OSH Act, an individual state can pass its own worker health and safety laws and standards. Indeed, the 1970 legislation encouraged individual states to develop and operate their own job safety and health programs. If the state can show that its job safety and health standards are "at least as effective as" comparable federal standards, the state can be certified to assume OSH Act administration and enforcement in that state. OSHA approves and monitors state plans, and provides up to 50 percent of operating costs for approved plans.
To gain OSHA approval for a "developmental plan," the first step in the process of instituting a state plan for job safety and health, the applying state must first assure OSHA that it will, within three years, have in place all the structural elements necessary for an effective occupational safety and health program. These elements include: 1) appropriate legislation; 2) regulations and procedures for standards setting, enforcement, appeal of citations, and penalties; 3) adequate resources (both in number and qualifications of inspectors and other personnel) for enforcement of standards.
Once a state has completed and documented all its developmental requirements, it is eligible for certification. Certification is basically an acknowledgment that the state has put together a complete plan. Once the state has reached a point where it is deemed capable of independently enforcing job safety and health standards, OSHA may enter into an 'operational status' agreement with the state. Once this occurs, OSHA in effect steps aside and allows the state to enforce its laws.
The ultimate accreditation of a state plan is known as "final approval." When OSHA grants final approval, it relinquishes its authority to cover occupational safety and health matters that are addressed by the state's rules and regulations. Final approval can not be given until at least one year after certification, and it is predicated on OSHA's judgment that worker protection is at least as effective under the state's standards as it is under the federal program. The state must meet all required staffing levels and agree to participate in OSHA's computerized inspection data system before being allowed to operate without OSHA supervision.
HISTORY OF THE RELATIONSHIP BETWEEN OSHA AND BUSINESS
OSHA has traditionally used "command and control" kinds of regulation to protect workers. "Command and control" regulations are those which set requirements for job safety (such as requirements for guard rails on stairs) or limits on exposure to a hazardous substance (such as a given number of fibers of asbestos per cubic milliliter of air breathed per hour). They are enforced through citations issued to violators.
In 1984 OSHA promulgated the Hazard Communication Standard (HCS), which was viewed as a new kind of regulation differing from "command and control." The HCS gives workers access to information about long-term health risks resulting from workplace exposure to toxic or hazardous substances, and requires manufacturers, importers, and distributors to provide employers with evaluations of all toxic or hazardous materials sold or distributed to those employers. This information is compiled in a form known as a Material Safety Data Sheet (MSDS). The MSDS describes the chemical's physical hazards such as ignitability and reactivity, gives associated health hazards, and states the exposure limits established by OSHA. In turn, the employer must make these documents available to employees, and requires employers to establish hazard communication education programs. The employer must also label all containers with the identities of hazardous substances and appropriate warnings. Worker "Right-to-Know," as implemented on the federal level through the HCS, is designed to give workers access to information so that they can make informed decisions about their exposure to toxic chemicals.
OSHA has been criticized by businesses and industry groups throughout its history. In the 1970s, it was criticized for making job-safety regulations that businesses considered to be vague or unnecessarily costly. For example, a 1977 OSHA regulation contained detailed specifications regarding irregularities in western hemlock trees used to construct ladders. In the Appropriations Act of 1977, Congress directed OSHA to get rid of certain standards that it described as "trivial." As a result, in 1978 OSHA revoked 928 job-safety standards and increased its efforts to deal with health hazards.
On the other hand, OSHA has also been criticized by unions and other pro-worker groups throughout its history for doing too little to protect employees. Throughout its existence, OSHA has been criticized for issuing too few new standards, for failing to protect workers who report violations, for failing to adequately protect workers involved in the clean up of toxic-waste sites, and for failing to enforce existing standards. The latter charge has been a particularly frustrating one for OSHA. Funding for enforcement has dwindled in recent years, and over the last 20 years, both Congress and various presidential administrations have publicly supported efforts to keep OSHA and other agencies "off the backs" of business.
OSHA REFORMS
OSHA is criticized from both sides, for being too arbitrary with employers and for being too lax on employers. A 2000 survey of members of the National Association of Manufacturers cited OSHA as the nation's most intrusive federal agency (34 percent of responding manufacturers cited OSHA, while 18 percent pointed to the Environmental Protection Agency, the second-highest vote-getter; another 11 percent said no federal agency significantly impeded their efficiency). The most frequent complaint leveled against OSHA is that American workplace safety and health regulations are excessively burdensome on businesses of all shapes and sizes. Critics call for fundamental changes in OSHA's regulatory environment, insisting that changes should be made to encourage voluntary industry compliance on worker safety issues and reductions of penalties for nonserious violators of standards. OSHA itself has acknowledged that "in the public's view, OSHA has been driven too often by numbers and rules, not by smart enforcement and results. Business complains about over-zealous enforcement and burdensome rules…. And too often, a "one-size-fits-all" regulatory approach has treated conscientious employers no differently from those who put workers needlessly at risk." Worker advocates and others, however, point out that OSHA standards have been an important factor in the dramatic decline of injury and illness rates in many industries over the past few decades, and they express concern that reforms could put workers in a variety of businesses at greater risk.
OSHA's recent reform initiatives have sought to address those issues raised by its critics while simultaneously ensuring that American workers receive adequate health and safety protection in the workplace. In 1995 OSHA announced a new emphasis on treating employers with aggressive health and safety programs differently from employers who lack such programs. "At its core," said OSHA, "this new approach seeks to encourage the development of worksite health and safety programs." The features that OSHA will be looking for are:
- Management commitment
- Meaningful participation of employees
- a systematic effort to find safety and health hazards whether they are covered by existing standards or not
- Documentation that the identified hazards are fixed
- Training for employees and supervisors
- A reduction in injuries and illnesses
Those firms equipped with good safety programs will receive special recognition that will include: the lowest priority for enforcement inspections, the highest priority for assistance, appropriate regulatory relief, and major penalty reductions. Businesses that do not adequately provide for their workers' health and safety, however, will be subject to "strong and traditional OSHA enforcement procedures…. In short, for those who have a history of endangering their employees and are unwilling to change, OSHA will rigorously enforce the law without compromise to assure that there are serious consequences for serious violators."
OSHA also announced its plans to make more tightly focused inspections on companies that have effective safety and health programs. If a company with a strong record meets selected safety/health criteria, the OSHA inspector will conduct an abbreviated inspection. Conversely, in situations where a safety and health program is nonexistent or inadequate, a complete site inspection, including full citations, will be undertaken.
OSHA and business interests clashed repeatedly during the late 1990s over proposed new regulations designed to identify and address workplace injuries and illnesses traced to the issue of ergonomics. "OSHA would require companies to implement permanent engineering controls and employ interim personal protective equipment," noted Purchasing. "Examples of engineering controls involve changing, modifying, or redesigning the following: workstations, tools, facilities, equipment, materials, and processes…. Many businesses have already adopted ergonomic design tools and workstations that reduce strain where repetitive motions, sitting for long periods, or reaching are required. It's not clear yet what companies will be required to do in the way of changes in processes and materials used."
OSHA AND SMALL BUSINESS
In recognition of the special challenges that often face small businesses—and the limited financial resources that they often have—the Occupational Safety and Health Administration administers a number of special programs specifically designed to help entrepreneurs and small business owners provide a productive yet safe environment for their employees.
Among the special programs that OSHA has instituted for small businesses are the following:
- Penalty Reduction—OSHA may grant reductions of 60 percent for employers with 25 employees or fewer; 40 percent if the employer has 26-100 employees; and 20 percent if the employer has 101-250 employees.
- Penalty Reductions for Good Faith—OSHA has the option of granting a 25 percent penalty reduction if a small business has instituted an effective safety and health program for its employees.
- Flexible Requirements—OSHA gives smaller firms greater flexibility in certain safety areas in recognition of their limited resources (i.e., lead in construction, emergency evacuation plans, process safety management).
- Reduced Paperwork Requirements—OSHA has fewer recordkeeping requirements for very small business. Employers with 10 or fewer employees are exempt from most OSHA recordkeeping requirements for recording and reporting occupational injuries and illnesses.
- Consultation Program—While not limited to small businesses, OSHA on-site consultation program has been particularly helpful to smaller companies (small firms accounted for about 40 percent of the program during the mid-1990s). This service, which is run by state agencies, provides businesses with the option of requesting a free on-site consultation with a state representative who helps them identify potential workplace hazards and improve or implement effective workplace safety and health programs.
- Training Grants—OSHA awards grant money to non-profit groups for the development of programs designed to help entrepreneurs and small business owners establish safety and health guidelines for their companies.
- Mentoring—OSHA and the Voluntary Protection Programs Participants Association (VPPA) operate a mentoring program to help small firms applying for entry into VPP refine their health and safety programs. The VPP is an OSHA program that is intended to recognize a firm's safety and health achievements. This mentoring program matches applicants with VPP members (often in the same or a related industry) who can help by sharing their experience with and knowledge about workplace safety and health programs.
In addition to these federal level programs, many states have their own federally approved safety and health standards and these states often provide additional programs of assistance to small businesses.
The Value of Consultation Programs
OSHA and business consultants alike encourage small business owners to take advantage of available consultation programs. A comprehensive consultation can provide small business owners with a wide variety of information that can help ensure that they are in compliance with regulatory requirements.
Consultations will typically include appraisal of all mechanical and environmental hazards and physical work practices; appraisal of the firm's present job safety and health program; conference with management on findings; written report of recommendations and agreements; and training and assistance with implementing recommendations. "The consultant will then review detailed findings with you in a closing conference," noted OSHA. "You [the business owner] will learn not only what you need to improve, but also what you are doing right. At that time you can discuss problems, possible solutions and abatement periods to eliminate or control any serious hazards identified during the walk-through…. The consultant can help you establish or strengthen an employee safety and health program, making safety and health activities routine considerations rather than crisis-oriented responses."
BIBLIOGRAPHY
"Ergonomics, S&H Rules on OSHA's Front Burner." Purchasing. 22 April 1999.
Fletcher, Meg. "Workplace Rule Governs Whistleblower Practices: Sarbanes-Oxley expands OSHA investigations." Business Insurance. 13 June 2004.
Martin, William, and James Walters. Safety and Health Essentials: OSHA Compliance for Small Businesses. Elsevier, September 2001.
"OSHA Most Intrusive Agency." Products Finishing. June 2000.
U. S. Department of Labor. Occupational Safety and Health Administration. "OSHA Benefits for Small Business." Available from http://www.osha.gov/dcsp/smallbusiness/benefits.html. Retrieved on 18 April 2006.
Hillstrom, Northern Lights
updated by Magee, ECDI
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