ihe680_041211

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Occupational Safety and Health for Technologists, Engineers, and Managers By David L. Goetsch

© 2011, 2008, 2005, 2002, 1999 Pearson Education, Inc. Pearson Prentice Hall - Upper Saddle River, NJ 07458

Chapter 6 - The OSH Act, Standards, and Liability

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RATIONALE FOR THE OSH ACT •  Laws governing workplace safety were limited and

sporadic, until 1970, when Congress passed the OSH 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.”

•  In developing this legislation, Congress considered the following yearly statistics: (EVERY Year…) –  Workplace accidents caused an average of 14,000

deaths. –  2.5 million workers were disabled in workplace accidents. –  Approximately 300,000 new cases of occupational

diseases were reported.

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OSHA’S MISSION AND PURPOSE •  According to the U.S. Department of Labor,

OSHA’s mission and purpose can be summarized as follows: –  Encourage employers & employees to reduce

workplace hazards. –  Implement new & improve existing, safety/health

programs. –  Encourage research that will lead to innovative ways

of dealing with workplace safety & health problems. –  Establish the rights of employers and of employees

regarding the improvement of workplace safety & health. –  Monitor job-related illnesses and injuries through a

system of reporting and record keeping.

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OSHA’S MISSION AND PURPOSE …cont’d •  According to the U.S. Department of Labor, OSHA’s

mission and purpose can be summarized as follows: –  Establish training programs to increase the number of

safety & health professionals and to improve their competence continually.

–  Establish mandatory workplace safety & health standards and enforce those standards.

–  Provide for the development and approval of state-level workplace safety & health programs.

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

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OSH ACT COVERAGE •  The OSH Act applies to most employers.

–  If an organization has even one employee, it must comply with applicable sections of the act.

•  This includes all types of employers from manufacturing and construction to retail and service organizations.

•  There is no exemption for small businesses. –  Those with 10 or fewer employees are exempt from OSHA

inspection & not required to maintain injury/illness records.

•  The OSH Act covers employers in all 50 states, the District of Columbia, Puerto Rico, and all other territories under U.S. government jurisdiction.

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OSH ACT COVERAGE •  Exempted employers are:

–  Persons who are self-employed. –  Family farms that employ immediate family members. –  Federal agencies covered by other federal statutes. –  State and local governments. –  Coal mines

•  regulated by mining-specific laws. •  The general duty clause of the OSH Act requires

that employers provide a workplace free from hazards that are likely to harm employees. –  Applies when there is no specific OSHA standard for a

given situation.

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OSHA Standards versus OSHA Regulations •  OSHA issues both standards and regulations.

–  OSHA standards address specific hazards. –  Regulations are more generic than standards, in some

cases, and more specific in others…Regulations do not apply to specific hazards.

•  OSHA must publish intentions to adopt, amend, or revise standards in the Federal Register.

•  Any interested party may ask for a public hearing on a proposed rule or rule change, which OSHA must conduct.

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How to Read an OSHA Standard •  OSHA standards are typically long and complex.

–  Written in the language of lawyers and bureaucrats. •  OSHA standards are part of the CFR, published by

the Office of the Federal Register. –  Title 29 contains all the standards assigned to OSHA.

•  Title 29 is divided into several parts, each carrying a four-number designator (Part 1901, Part 1910, etc.) –  Parts are divided in sections, with numerical

designations. •  For example, 29 CFR 1910.1 means:

–  Title 29, Part 1910, Section 1, Code of Federal Regulations.

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How to Read an OSHA Standard •  The sections are divided into four different levels

of subsections, each with a particular designator: –  First Level: Alphabetically, using lowercase letters in

parentheses: (a) (b) (c) (d). –  Second Level: Numerically, using numerals in

parentheses: (1) (2) (3) (4). –  Third Level: Numerically, using roman numerals in

parentheses: (i) (ii) (iii) (iv). –  Fourth Level: Alphabetically, using uppercase letters in

parentheses: (A) (B) (C) (D).

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Temporary Emergency Standards •  OSHA is empowered to pass temporary standards

on an emergency basis without undergoing normal adoption procedures. –  In effect only until permanent standards can be developed.

•  To justify emergency temporary standards, OSHA must determine workers are in imminent danger from exposure to a hazard not already covered.

•  Once a temporary standard has been developed, it is published in the Federal Register. –  This serves as the notification step, and the standard is

then subjected to all the other adoption steps outlined in the preceding section.

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How to Appeal a Standard •  A standard, either permanent or temporary, may be

appealed by any person who is opposed to it. –  Filed in the U.S. Court of Appeals serving the geographic

region in which the complainant lives or does business.

•  Filing of one or more appeals does not delay the enforcement of a standard, unless the court of appeals handling the matter mandates a delay.

•  Occasionally, an employer may be unable to comply with a new standard by the effective date of enforcement. –  In such cases, the employer may petition OSHA at the

state or federal level for a variance.

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OSHA’S RECORD KEEPING AND REPORTING •  Employers have complained for years about the

mandated injury and illness record-keeping system: –  Cumbersome and complicated. –  Had not kept up with new and emerging issues. –  There were too many interpretations. –  Forms were too complex. –  Guidelines were too long and difficult to understand.

•  In response to these complaints, OSHA initiated a dialogue among stakeholders to improve the record-keeping and reporting process.

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Reporting Requirements •  All occupational illnesses/injuries must be reported

if they result in one or more 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 (if it is not on

the first-aid list, it is considered medical treatment) –  Any other condition listed in Appendix B of the rule.

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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. –  Computer or electronic copies can replace paper copies.

•  Records are not sent to OSHA—they must be maintained locally for a minimum of three years. –  Available for inspection by OSHA at any time.

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Record-Keeping Requirements •  OSHA Form 301is used for every incidence of a

recordable injury or illness. –  Must be completed within seven calendar days.

See textbook page 99.

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Record-Keeping and Reporting Exceptions •  Among the exceptions to OSHA’s record-keeping

and reporting requirements: –  Employers with 10 or fewer employees. –  Employers in real estate, finance, retail trade, insurance.

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KEEPING EMPLOYEES INFORMED •  Employers are required to keep employees

informed about safety & health issues. –  OSHA regulation in this area concerns posting of

material. •  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 may 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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WORKPLACE INSPECTIONS & ENFORCEMENT •  OSHA may conduct inspections unannounced, and

except under special circumstances, prior notice is a crime punishable by fine, imprisonment, or both.

•  OSHA compliance officers are required to present their credentials to the person in charge. –  Having done so, they are authorized to enter any site,

location, or facility where work is taking place. –  They may inspect, at reasonable times, any condition,

facility, machine, equipment, materials, etc. –  Finally, they may question, in private, any employee or

other person formally associated with the company.

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WORKPLACE INSPECTIONS & ENFORCEMENT •  The inspection proceeds in the following steps:

–  The OSHA compliance officer presents his/her credentials to a company official.

–  The compliance officer conducts an opening conference with company officials & employee representatives.

•  Why the plant was selected for inspection. •  Purpose of the inspection, scope, and applicable standards.

–  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 & photos.

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WORKPLACE INSPECTIONS & ENFORCEMENT •  The inspection proceeds in the following steps:

–  The compliance officer holds a closing conference, which involves open discussion between the officer and company & employee representatives.

–  OSHA personnel advise company representatives of problems noted, actions planned as a result, and assistance available from OSHA.

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CITATIONS AND PENALTIES •  Based on findings of workplace inspections, OSHA

is empowered to issue citations and/or penalties. –  A citation informs the employer of OSHA violations. –  Penalties are typically fines assessed—result of citations.

•  Other-than-serious violation - a violation with a direct relationship to job safety & health, but probably would not cause death or serious physical harm. – A proposed penalty of up to $7,000 for each

violation is discretionary, and may be adjusted downward by as much as 95%.

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CITATIONS AND PENALTIES •  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, which may be adjusted downward depending on the employer’s good faith, history of prior violations, and the gravity of the alleged violation.

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CITATIONS AND PENALTIES •  Willful violation - a violation that the employer

intentionally and knowingly commits. –  A minimum penalty of $5,000 for each violation.

•  A proposed penalty may be adjusted downward, depending on the size of the business and its history of previous violations.

•  Usually, no credit is given for good faith. –  If an employer is convicted of a willful violation resulting in

the death of an employee, the offense is punishable by a court-imposed fine or by imprisonment.

–  A fine of up to $250,000 for an individual or $500,000 for a corporation may be imposed for a criminal conviction.

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CITATIONS AND PENALTIES •  Repeat violation - a violation where, on

reinspection, a substantially similar violation is found.

•  To be the basis of 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 prior violation - a failure to correct a prior violation may bring a civil penalty for each day that the violation continues beyond the prescribed abatement date.

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STATE-LEVEL OSHA PROGRAMS •  States are allowed and encouraged by the OSH act

to develop their own safety & health programs. –  OSHA will fund up to 50% of an approved state program.

•  OSHA covers employers not included in state plans.

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SERVICES AVAILABLE FROM OSHA •  OSHA provides services to help employers meet

the latest safety & health standards, typically at no cost. – Consultation – Voluntary protection programs – Training & education services

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Consultation Services •  Consultation services provided by OSHA include:

–  Identifying hazardous conditions. –  Correcting identified hazards. –  Developing and implementing injury/illness prevention.

•  Actual services are provided by professional safety & health consultants, who are not OSHA employees. –  They typically work for state agencies or universities and

provide consultation services on a contract basis

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Voluntary Protection Programs •  Companies participating in any of the VPPs are

exempt from regular programmed OSHA inspections.

•  Voluntary Protection Programs (VPPs) serve the following three basic purposes: –  To recognize companies that have incorporated safety &

health programs into their overall management system. –  To motivate companies to incorporate health and safety

programs into their overall management system. –  To promote positive, cooperative relationships among

employers, employees, and OSHA.

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Training and Education Services •  OSHA operates a training institute in Arlington

Heights, Illinois, that offers a variety of services to safety & health personnel from the public and private sectors.

•  To promote training & education in locations other than the institute, OSHA awards grants to nonprofit organizations.

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EMPLOYER RESPONSIBILITIES •  Under the OSH Act, employers must:

–  Meet the responsibility to provide a workplace free from hazards causing, or likely to cause death or serious physical harm to employees

–  Be knowledgeable of, and comply with standards, rules, and regulations issued under the OSH Act, and make copies available to employees upon request

–  Keep employees informed about OSHA. –  Continually examine workplace conditions to ensure

they conform to standards. –  Ensure employees have, and use, safe tools &

equipment that is properly maintained.

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–  Use color codes, posters, labels, or signs as appropriate to warn employees of potential hazards Establish or update operating procedures and communicate them so that employees follow safety & health requirements.

–  Provide medical examinations when required by OSHA. –  Provide the training required by OSHA standards. –  Report to the nearest OSHA office within eight hours

any fatal accident or one that results in the hospitalization of three or more employees.

–  Keep OSHA-required records of injuries and illnesses and post a copy of OSHA Form 300 from February 1 through April 30 each year (employers of 11 or more employees).

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–  At a prominent location within the workplace, post OSHA Poster 3165 informing employees of their rights and responsibilities.

–  Provide employees, former employees & representatives access to the Log of Work-Related Injuries and Illnesses (OSHA Form 300) in a reasonable time and manner.

–  Give employees access to medical and exposure records. –  Give the OSHA compliance officer names of authorized

employee representatives who may be asked to accompany the compliance officer during an inspection.

–  Not discriminate against employees who properly exercise their rights under the act.

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–  Post OSHA citations at or near the work site involved (each citation or copy must remain posted until the violation has been abated or for three working days, whichever is longer)

–  Abate cited violations within the prescribed period.

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EMPLOYEE RIGHTS AND RESPONSIBILITIES •  Employee rights are protection against

punishment for employees who exercise their right to pursue any of the following courses of action: –  Complain to an employer, union, OSHA, or any other

government agency about job safety & health hazards. –  File safety or health grievances. –  Participate in a workplace safety & health committee or in

union activities concerning job safety & health. –  Participate in OSHA inspections, conferences, hearings,

or other OSHA-related activities.

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Employee Responsibilities •  Employees have specific responsibilities, and must:

–  Read the OSHA poster at the job site and be familiar with its contents.

–  Comply with all applicable OSHA standards. –  Follow safety & health rules and regulations prescribed

by the employer, and properly use personal protective equipment while engaged in work.

–  Report hazardous conditions to the supervisor. –  Report any job-related injury or illness to the employer,

and seek treatment promptly. –  Cooperate with the OSHA compliance officer conducting

an inspection. –  Exercise their OSH Act rights in a responsible manner.

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KEEPING UP-TO-DATE ON OSHA •  OSHA standards, rules, and regulations are always

subject to change. –  Development, modification, and revocation of standards

is an ongoing process.

•  It is important for safety & health professionals to stay up-to-date with OSHA actions and activities. –  Establish contact with the nearest OSHA office and

periodically request copies of new publications. –  Establish and maintain relationships with other safety &

health professionals for the purpose of sharing information, and do so frequently.

–  Join professional organizations, review their literature, and attend their conferences.

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PROBLEMS WITH OSHA •  Federal agencies are seldom without detractors.

–  Consequently, complaints about OSHA are common.

•  Often criticisms leveled against OSHA are valid, and take many different forms. –  Some characterize OSHA as an overbearing

bureaucracy without sensitivity to the needs of employers struggling to survive in a competitive marketplace.

–  Others see OSHA as timid, claiming it doesn’t do enough.

•  At different times and in different cases, both views have probably been at least partially accurate.

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PROBLEMS WITH OSHA •  Most criticism of OSHA comes in the aftermath of

major accidents or a workplace disaster. –  “Why didn’t OSHA prevent this disaster?”

•  Detractors will typically answer by claiming OSHA spends too much time & resources dealing with inconsequential matters, ignoring real problems.

•  Supporters claim that lack of resources prevents the agency from being everywhere at once.

•  OSHA has made a significant difference in the condition of the workplace in this country. –  However, large, centralized bureaucratic agencies

rarely achieve a high level of efficiency.

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OTHER AGENCIES AND ORGANIZATIONS •  Although OSHA is the most widely known safety

& health organization in the federal government, it is not the only one. –  The most important to modern safety/health

professionals are: •  NIOSH •  OSHRC

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NIOSH •  NIOSH is part of the Department of Health and

Human Services (HHS), with two broad functions: –  Research and education, focused on toxicity levels and

human tolerance levels of hazardous substances.

•  NIOSH prepares recommendations for OSHA standards dealing with hazardous substances. –  Studies are also published & made available to employers.

•  Each year, NIOSH publishes updated lists of toxic materials and recommended tolerance levels.

•  NIOSH has the authority to conduct research in the workplace, and respond to requests for assistance from employers and employees.

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NIOSH •  NIOSH developed a list of leading work-related

diseases and injuries: –  Occupational lung and cardiovascular diseases –  Cancers. –  Musculoskeletal injuries. –  Severe occupational traumatic injuries –  Psychological disorders. –  Neurotoxic disorders –  Disorders of reproduction. –  Noise-induced hearing loss –  Dermatological conditions.

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OSHRC •  The OSHRC is not a government agency.

–  It is an independent board appointed by the president, with authority to handle contested OSHA citations.

–  When a citation, penalty, or abatement period is contested by an employer, OSHRC hears the case.

–  OSHRC is empowered to review evidence, approve, reject or revise recommendations of OSHA area directors.

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Mine Safety & Health Administration (MSHA) •  Mining, exempt from OSHA regulations, is regulated

by the Metal & Nonmetallic Mine Safety Act. –  OSHA regulates aspects of the industry not directly

involved in actual mining work. •  In 1977, Congress passed the Mine safety & health

Act, which established the MSHA as a functional unit within the U.S. Department of Labor.

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Federal Railroad Administration •  Railroads—for the most part—are under OSHA

jurisdiction. –  The Federal Railroad Administration (FRA) exercises

limited jurisdiction over railroads in situations involving working conditions.

–  Beyond this, railroads must adhere to the standards for General Industry in CFR Part 1910.

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END

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OVERVIEW OF WORKERS’ COMPENSATION •  Workers’ compensation developed as a way to

allow injured employees to be compensated appropriately without having to take their employer to court.

•  The underlying rationale for workers’ compensation had two aspects: –  Fairness to injured employees, especially those

without resources to undertake legal actions. –  Reduction of costs to employers associated

with workplace injuries.

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OVERVIEW OF WORKERS’ COMPENSATION •  Employees give up their right to seek unlimited

compensation for pain & suffering via legal action. •  Employers award the prescribed compensation

(typically by insurance premiums) regardless of the employee’s negligence.

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Replacement of Income •  Workers’ compensation is intended to replace the

lost income adequately & promptly. –  Viewed as replacement of current & future income

(minus taxes) at a ratio of two-thirds (in most states). –  Workers’ compensation benefits are required to continue

even if the employer goes out of business.

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Rehabilitation of the Injured Employee •  A basic premise of workers’ comp is that the

injured worker will return to work in every case possible.

•  The rehabilitation program is to provide medical care at no cost to the injured employee until he /she is pronounced fit to return to work.

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Prevention of Accidents •  Preventing future accidents is a major objective.

–  The theory underlying is that employers will invest in accident prevention to hold down compensation and insurance premium costs.

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WORKERS’ COMPENSATION LEGISLATION •  Today, all 50 states, the District of Columbia,

Guam, and Puerto Rico have workers’ compensation laws. – These laws did not exist prior to 1948.

•  Montana was the first state to pass a compulsory workers’ compensation law, but it was overturned by the courts.

•  In 1911, the New York Court of Appeals declared a 1910 workers’ comp law unconstitutional, on the contention that it violated due process.

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WORKERS’ COMPENSATION LEGISLATION •  Shortly after the New York ruling, the 1911

Triangle Shirtwaist fire killed 149, injuring another 70. –  It was clear to investigators & survivors that unsafe

conditions created by company management prevented those who died or were injured from escaping the fire.

•  The owners were brought into court on charges of manslaughter.

•  The tragedy focused nation-wide attention on the need for a safe workplace and adequate workers’ compensation.

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MODERN WORKERS’ COMPENSATION •  As medical costs & insurance rates have risen,

many small businesses find it difficult to pay premiums. –  Business are closing in states with the highest workers’

compensation rates, moving to states with lower rates. •  States use lower rates to attract new businesses

and industry. •  Critics say workers’ compensation has gotten out of

hand, and is no longer fulfilling its intended purpose.

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WORKERS’ COMPENSATION INSURANCE •  Costs associated with workers’ compensation must

be borne by employers as part of their overhead. –  Employers must also ensure that the costs will be paid,

even if they go out of business. •  In most states, workers’ compensation insurance is

compulsory.

•  Three types workers’ compensation insurance: –  State funds –  Private insurance –  Self-insurance.

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WORKERS’ COMPENSATION INSURANCE •  Rates are affected by a number of different factors:

– Number of employees. – Types of work performed (risk involved). – Accident experience of the employer. – Potential future losses. – Overhead and profits of the employer. – Quality of the employer’s safety program. – Estimates by actuaries..

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RESOLUTION OF WORKERS’ COMP DISPUTES •  A fundamental objective of workers’ compensation

is to avoid costly, time-consuming litigation. –  When an injured employee and the employer’s insurance

company disagree on compensation, the disagreement must be resolved.

•  Most states have an arbitration board for this purpose.

•  Neither the insurance company nor the employee must an attorney—but many employees do.

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DISABILITIES AND WORKERS’ COMPENSATION •  Injuries that are compensable typically

fall into one of four categories: –  Temporary partial disability. –  Temporary total disability. –  Permanent partial disability. –  Permanent total disability.

– Determining the extent of a disability is often contentious & accounts for more workers’ comp litigation than any other issue.

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MEDICAL TREATMENT AND REHABILITATION •  All workers’ compensation laws provide for

payment of the medical costs associated with injuries. –  Most states provide full coverage, but some limit the

amount & duration of coverage. •  The laws also specify who is allowed or required

to select a physician for the injured employee.

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Rehabilitation and Workers’ Compensation •  Occasionally an injured worker will need

rehabilitation before he/she can return to work. Two types: •  Medical rehabilitation consists of providing

treatment required to restore to the extent possible any lost ability to function normally.

•  Vocational rehabilitation involves providing the education & training needed to prepare the worker for a new occupation.

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ADMINISTRATION AND CASE MANAGEMENT •  While OSHA specifies what constitutes a

recordable accident, minor accidents commonly go unreported. –  The employee may be given the rest of the day off, or

treated with first aid and returned to work. •  What constitutes a serious injury, varies by state.

–  As a rule, an injury is serious if it requires over 24 hours of active medical treatment.

•  At minimum, the insurer, the state agency, and the state’s federal counterpart must be notified.

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ADMINISTRATION AND CASE MANAGEMENT •  Three approaches can be used to settle a claim: •  Direct settlement - An employer or insurance

company begins making what it thinks are the prescribed payments.

•  Agreement settlement - The injured employee and the employer or insurance company agree on how much compensation will be paid, and for how long.

•  Public hearing - If an injured worker feels he/she has been inadequately compensated, or unfairly treated, a hearing can be requested.

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PROBLEMS WITH WORKERS’ COMPENSATION •  Although the cost of workers’ compensation is

increasing steadily, the amount of compensation going to injured workers is often disturbingly low.

•  On-the-job accidents are supposed to be covered, and all states have compensation systems. –  However, the injured worker rarely receives an income

close to what he/she was earning before the accident. •  The most fundamental problem with workers’

compensation is that it is not fulfilling its objectives. –  Lost income is not being adequately replaced, the

number of accidents has not decreased, and the effectiveness of cost allocation is questionable.

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SPOTTING FRAUD AND ABUSE •  There is evidence of waste, fraud & abuse in all

states that have passed workers’ comp laws. –  Public outcry against fraudulent claims is making states

much less tolerant of, and much more attentive to, abuse.

•  It is important for organizations to know how to spot employees who are trying to abuse the system by filing fraudulent workers’ compensation claims.

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SPOTTING FRAUD AND ABUSE •  Some factors that should cause employers to view

claims with suspicion: –  The person filing the claim is never home or available by

telephone or has an unlisted telephone number. –  The person filing the claim receives all mail at a post office

box and will not divulge a home address –  Injury coincides with a layoff, termination, or plant closing. –  The person filing the claim is active in sports, has

another job, or is in line for early retirement. –  Evidence that the person is maintaining an active lifestyle. –  No organic basis exists for disability. –  The person filing appears to have fully recovered.

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COST-REDUCTION STRATEGIES •  There are several rules of thumb that can help

reduce workers’ compensation claims: –  Stay in touch with the injured employee.

•  Let injured employees know that they have not been forgotten and that they are not isolated.

–  Have a return-to-work program and use it. •  The sooner an injured employee returns to work,

even with a reduced workload, the lower workers’ comp costs will be.

•  The key to preventing future accidents and incidents is determining the cause of the accident in question.

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END

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