Introduction to OSHA

OSH Act, OSHA Standards, Inspections, Citations and Penalties

By Josh Moore ASP,CHST,OHST

The Need for Legislation

More than 90 million Americans spend their days (or nights) on the job. Until 1970, no uniform and comprehensive provisions existed for worker protection against workplace safety and health hazards.

In 1970, the Congress considered annual figures such as these

Job related accidents accounted for more than 14,000 worker deaths Nearly 2 1/2 million workers were disabled Ten times as many person-days were lost from job-related disabilities as from strikes Estimated new cases of occupational diseases totaled 300,000

The Act

In 1970 a bipartisan Congress passed the Occupational Safety and Health Act of 1970 (the Act) Under the Act, OSHA was created within the Department of Labor.

Purpose

.to assure as far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources

OSHAs Purpose

Encourage employers and Employees to reduce workplace hazards and to implement new or improve existing safety and health programs Provide for research in occupational safety and health and to develop innovative ways of dealing with occupational safety and health problems

OSHAs Purpose

Establish separate but dependent responsibilities and rights for employers and employees for achievement of better safety and health conditions Maintain a reporting and record-keeping system to monitor job-related injuries and illnesses

OSHAs Purpose

Establish training programs to increase the number and competence of occupational safety and health personnel Develop mandatory job safety and health standards and enforce them effectively Provide for the development, analysis, evaluation and approval of state OSH programs

OSH Acts Coverage

Extends to all employers and their employees in the 50 states, District of Columbia, Puerto Rico, and all other territories under Federal Government jurisdiction Coverage provided either directly by federal OSHA or through an OSHA-approved state program Employer defined as any "person engaged in a business affecting commerce who has employees, but does not include the United States (except for the U.S. Postal Service) or any State or political subdivision of a State"

Standards

OSHA is responsible for promulgating legally enforceable standards Where OSHA has not promulgated specific standards, employers are responsible for following the Act's General Duty Clause States with OSHA-approved programs must set standards at least as effective as federal standards

Standards Development

OSHA can begin standards-setting procedures on its own, or in response to petitions from other parties, including: Secretary of Health and Human Services (HHS) National Institute for Occupational Safety and Health (NIOSH) State and local governments Nationally recognized standards producing organizations Employer or labor representatives Any other interested person

Standards Adoption

Advance Notice of Proposed Rulemaking (Optional) Notice of Proposed Rulemaking

terms of new rule provide specific time (30 days min.) for public to respond

Public hearing (may be requested by interested parties) Final rule published in Federal Register

General Duty Clause 5(a)(1)

The OSH Act has a broad general duty clause requiring all employers to furnish a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.

General Duty Clause

The general duty clause is meant to apply when a recognized hazard exists, for which there is not (or not yet) a precise standard. In other words, an unsafe condition not covered by one of OSHAs specific standards is understood to be covered by the general duty clause.

Workplace Inspections

To enforce standards, OSHA is authorized under the Act to conduct workplace inspections.

To enter without delay and at reasonable times any facility where work is performed by an employee or employer. . . Inspect and investigate during regular working hours. . .

OSHA Inspection Priorities

Imminent Danger: Any condition where there is reasonable certainty that a danger exists that can be expected to cause death or serious physical immediately Catastrophes and Fatal Accidents: Investigation of fatalities and catastrophes resulting in hospitalization of three or more employees. These types of accidents must be reported to OSHA within 8-hours.

OSHA Inspection Priorities

Employee Complaints: The Act gives each employee the right to request an OSHA inspection when the employee feel that he/she is in imminent danger from a hazard or when he/she feels that there is a violation of an OSHA standard that threatens physical harm. LEP/NEP High Hazard Workplaces

Inspection Process

The presentation of the Inspectors Credentials: The inspector must present his or her credentials upon arrival upon a site for inspection. Employers should always insist upon seeing the compliance officers credentials.

Inspection Process

Opening Conference:

In the opening conference, the compliance officer (CSHO) explains why the establishment was selected. The CSHO explains the purpose of the visit and the scope of the inspection. The employer may be given a copy of any employee complaint that may be involved. Confidentially will be kept upon request.

Inspection Process

Inspection Tour:

The CHSO and an employee representative will proceed through the facility, inspecting work areas for compliance. The route and duration are determined by the CHSO. Trade secrets observed will be kept confidential Employees will be consulted during the inspection tour Photographs and Video May be taken

Inspection Process

Inspection Tour:

(Cont'd)

Posting and Record-keeping are checked During the course of the inspection the CHSO will point out any unsafe or unhealthful working conditions observed The CHSO will also discuss possible corrective action if the employer so desires

Inspection Process

Closing Conference:

This is the time for free discussion of problems and needs and a time for frank questions and answers The CHSO discusses all unsafe or unhealthful conditions and indicates all apparent violations for which a citation may be issued or recommended

Citations and Penalties

After the CHSO reports findings, the Area Director determines what citations, if any will be issued, and what penalties, if any will be issued.

Citations

Citations inform the employer and employees of regulations and standards alleged to have been violated and of the proposed length of time set for their abatement. The employer will receive citations and notices of proposed penalties by certified mail. The employer must post a copy of each citation at or near a place a violation occurred, for three days or until the violated is abated, whichever is longer.

Penalties

De Minimus

No penalty or citation issued.

Penalties

Other than Serious Violation:

A violation that has direct relationship to job safety and health, but probably would not cause death or serious physical harm. A proposed penalty of up to $7000.00 for each violation is discretionary and may be adjusted downward by as much as 95%, depending upon the employers good faith, history of previous violations and size of business

Penalties

Serious Violation:

A violation where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard. A mandatory penalty of up to $7000.00 for each violation is proposed. This penalty may be adjusted downward based on the previous reasons.

Penalties

Willful Violation:

A violation that the employer knowingly commits or commits with plain indifference to the law. Penalties of up to $70,000 may be proposed for each willful violation with a minimum penalty of $5000 for each violation. A proposed penalty may be adjusted downward.

Willful Violation Penalty

If an employer is convicted of a willful violation of a standard that has resulted in the death of an employee, the offense is punishable by a courtimposed fine or by imprisonment for up to six months, or both. A fine of up to $250,000 for an individual, or $500,000 for a corporation, may be imposed for a criminal conviction.

Penalties

Repeated Violation:

A violation of any standard, regulation rule, or order where, upon re-inspection, a substantially similar violation can bring a fine of up to $70,000 for each such violation

Penalties

Failure to Abate Prior Violation:

Failure to abate a prior violation may bring a civil penalty of up to $7,000 for each day the violation continues beyond the prescribed abatement date.

Penalties

Additional violations for which citations and proposed penalties may be issued upon conviction:

Falsifying records, reports or applications can bring a fine of $10,000 or up to six months in jail. Violations of posting requirements can bring a civil penalty of up to $7,000

Criminal Penalties

In addition to civil penalties, the following may result in criminal penalties:

Willful violation causing death Giving unauthorized, advance notice of an inspection Giving false information Killing, assaulting or hampering the work of an OSHA inspector

Criminal Penalties

OSHA itself does not have the authority to bring criminal cases, but must refer a case to the Justice Department for prosecution. In recent years, this has happened more frequently, and in several cases, employers have received jail sentences.

Employers Rights and Responsibilities

Citations must be posted for 3 working days or until the violation is corrected. Must be posted at or near the place where each violation occurred

Employers Rights and Responsibilities

Employers options upon receipt of citations

If you agree with the citations, you must correct the violations and pay any penalties. If you do not agree you have 15 working days to contest in writing the:

Citation, Penalty, and/or the abatement dates

Informal Conference

Within 15 working days Gives the employer an opportunity to resolve issues with penalties and citations without going to court.

Antidiscrimination Provisions

The OSH Act prohibits employment retaliation against an employee who complains to an employer, files a complaint, initiates a proceeding, contests an abatement date, requests information from OSHA or testifies under the Act. In certain circumstances, an employee may refuse to work under seriously threatening health or safety conditions.