Wait! My Company is Subject to OSHA Requirements????

If I tell you about an employee who sustains an on-the-job injury, what comes to mind? Workers compensation? Suppose your employee sustains injuries because another employee or group of employees “snaps” and gets violent with co-workers. What comes to mind then? Workplace violence policies? Suppose one of your employees develops respiratory issues, and a few weeks later it is found that your building contains asbestos, now what comes to mind? More workers’ compensation or third-party lawsuits, perhaps? What haven’t you thought about? OSHA! Is that the Occupational Health and Safety Act of the Occupational Health and Safety Administration? Yes to both and yes your company is subject to OSHA requirements so let’s learn more about OSHA after the jump…

Wait. Isn’t OSHA just meant for industrialized settings, such as factories? Nope. But let’s not get ahead of ourselves. First, let’s get a handle on the law or the Occupational Heath and Safety Act (we’ll refer to it as the OSH Act to minimize confusion).

What is the OSH Act? The point of the OSH Act is to ensure “so far as possible every working man and woman in the Nation safe and healthful working conditions”. President Richard M. Nixon signed the OSH Act into law on December 29, 1970, and it went into effect on April 29, 1971.

Who is Subject to the OSH Act? Most private employers (and their workers) in all 50 States, the District of Columbia and other jurisdictions (such as Puerto Rico or the Virgin Islands) either directly through the federal Occupational Health and Safety Administration or through an OSHA-approved state plan. Currently, 22 States and territories have state plans approved by the federal Occupational Safety and Health Administration (let’s call this the OSH Administration). While technically, workers at state and local government agencies are not protected by the federal OSH Act, if they work in a state that has an OSH Administration approved state program, then they will be protected under the OSH Act. States and territories are also allowed under the OSH Act to develop plans that only cover state and local government workers. What happens then to private sector employers and their employees? They remain under the jurisdiction of the OSH Administration. (Currently New York, New Jersey, Connecticut, Illinois and the Virgin Islands have such plans.)

Lest you think I forgot about federal government agencies not only do the OSH Act’s provisions apply to these agencies, but they also make agency heads responsible for providing their employees safe and healthful working conditions, and federal agencies’ safety and health programs must meet the same standards required of private sector employers. The one difference is that federal agencies receive “virtual fines”, meaning that the OSH Administration, if it finds violations, will publish them in a press release and state the amount the agency would be fined if it were a private employer. (We can save for another day the debate over how much of a deterrent that might be.)

Who/What Might Not be Covered under the OSH Act? Self-employed workers and family members of farm employers are people who are not covered; workplace hazards governed by other federal agencies, such as the US Coast Guard, the Department of Energy or the Mine Safety and Health Administration, to name a few are also not covered under the OSH Act.

So What Does the OSH Act Actually Require Employers to Do, and What Protections Does it Afford Employees?

Under the OSH Act, employers must:

  • Find and correct safety and health problems;
  • Try to eliminate or reduce hazards by making feasible changes in working conditions and not just rely on personal protective equipment, such as gloves, hard hats, goggles and the like;
  • Inform workers about chemical hazards through training, labels, alarms, color-coded systems, chemical information sheets and other methods;
  • Provide safety training to workers in a language and vocabulary they can understand;
  • Keep accurate records of work-related injuries and illnesses;
  • Perform tests in the workplace, such as air sampling, required by some OSHA standards.
  • Provide required personal protective equipment at no cost to workers.
  • Provide hearing exams or other medical tests when required by OSHA standards.
  • Post OSHA citations and annually post injury and illness summary data where workers can see them.
  • Notify OSHA within eight hours of a workplace fatality. Notify OSHA within 24 hours of all work-related inpatient hospitalizations, all amputations, and all losses of an eye (1-800-321-OSHA [6742]).
  • Prominently display the official OSHA Job Safety and Health – It’s the Law posterthat describes rights and responsibilities under the OSH Act.
  • Not retaliate or discriminate against workers for using their rights under the law, including their right to report a work-related injury or illness.

Now, for the flip side, workers are entitled to :

  • File a confidential complaint with the OSH Administration to get their workplace inspected;
  • Receive training and information using a language and vocabulary they can understand about hazards, how to prevent harm, and OSH Act standards that apply to their workplace.
  • Receive copies of records of:a) work-related injuries and illnesses that occur in their workplace; b) the results from tests and monitoring done to find and measure hazards in their workplace; c)their workplace medical records.
  • Participate in an OSH Administration inspection and speak privately with the inspector(s);
  • File a complaint with the OSH Administration if they feel they have been discriminated or retaliated against for having requested an inspection or acting as a whistleblower under any laws over which the OSH Administration has jurisdiction.

Two more points before we wrap up this week’s post:

  1. OSH Act protections apply equally to temporary employees supplied by staffing agencies. Both the host/client company and the staffing agency are responsible for OSH Act compliance and can be found jointly liable for OSH Act violations that result in harm to any temporary employees.
  2. As you may have guessed, the OSH Administration enforces the OSH Act. (I reserve the right to post separately about the OSH Administration if it becomes necessary and I feel I can do it without putting you to sleep!)

What makes a workplace injury reportable to the OSH Administration and what happens? We’ll talk about that next week!

Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competentemployment counsel on any issues discussed here.

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