The perils of an unhealthy work environment have been known since the times of the early Greeks. However, it wasn't until the nineteenth century that most governments took proactive steps to protect worker health and safety. Many states were slow in enacting employer liability laws designed to relieve the hardship of work-related injuries for individual workers and their families. However, by 1921, 46 states had some form of workers' compensation law.1 By 1970 a ground swell of support for Federal legislation addressing job safety and health had developed. In response, Congress passed the Occupational Safety and Health Act of 1970 (OSHA) for the purpose of. . .

". . . assuring so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources."2

The Federal Occupational Safety and Health Act covers employment in every state, Puerto Rico, the District of Columbia, and all American territories. The Act applies to working conditions of employees and it requires employers to abide by standards which affect occupational safety and health. Each employer must comply with essentially two requirements under the Act. First, under Section 5 (a)(1), an employer must keep its place of employment free from recognized hazards which cause or are likely to cause death or serious physical harm to its employees. As the second requirement, Section 5 (a)(2) requires each employer to comply with promulgated OSHA standards. The standards are set forth in the Federal Register and the Code of Federal Regulations.

Variances from standards compliance. Under Section 6 (d) of the Act, an employer has the right to petition the Secretary of Labor for an order granting a variance from any OSHA standard which governs the employer's place of business. There are essentially two types of variances: temporary and permanent. A permanent variance is issued by the Secretary of Labor only when it is determined that the workplace with the variance would be as safe and healthful as it would have been had the employer complied with the necessary standard. A temporary variance is issued where an employer is unable to comply with the standard because of various conditions, such as unavailability of workers, facilities or equipment. The employer must establish that it has taken all available steps to protect the employees from the hazards covered by the standard and that an effective program for coming into compliance as soon as possible has been established.

Enforcement of OSHA. The enforcement of OSHA rests with the Occupational Safety and Health Administration (OSHA) of the Labor Department. The administration utilizes OSHA compliance officers (CO's) who are given authority under Section 8 (a) of the Act to inspect any covered workplace. When compliance officers come to conduct an inspection, they are required to present his/her credentials to the owner or agent in charge of the business before conducting an inspection.

Safety and health inspections. The employer and a representative of the employees have the right to accompany the inspector during the course of the investigation. After the inspection is completed, a closing conference is conducted during which the compliance officer and employer discuss any alleged violations and potentially dangerous safety and health conditions.

Citations. After completion of the closing conference, the CO files a report with the Area Director of OSHA who makes several decisions including the following:

1. Will a citation be issued?

2. What penalties will be computed for any citation assessed?

3. What is the date for abatement of any alleged violation of the Act?

If a citation is issued by the Area Director, it is done in writing and it describes with particularity the violations which have allegedly occurred while citing any relevant standards or regulations.

Penalties. Under the Omnibus Budget Reconciliation Act of 1990, the OSHA penalty structure has been augmented to feature increased penalties in the following ranges:

De minimis notice - $0
Nonserious - $0 to $7,000
Serious - $1 to $7,000
Repeated - $0 to $70,000
Willful - $5,000 to $70,000
Failure to abate - $0 to $70,000
Failure to post - $0 to $7,000 3

In determining penalties to be assessed against an employer, government officials are required to take into consideration several factors, including the following:

a. Good faith of the employer.

b. Gravity of the violation.

c. The employer's past history of compliance.

d. The size of the employer.

The aforementioned penalty structure applies for civil violations. Criminal sanctions for willful violations which have caused the death of one or more employees are also available to the Department of Labor.

Notice and contests of hearings. Once the Department of Labor has issued citations with accompanying penalties, the employer is given fifteen (15) working days in which to file a notice of contest. If an employer fails to file a written notice of contest, the alleged violations, abatement dates, and proposed penalties become final and are not susceptible to review by the government agency or our judicial system. However, if the notice of contest is appropriately filed, the abatement date requirement is tolled, the penalties and citation remain in abeyance, and a hearing is scheduled.

The hearing is ultimately conducted before the Occupational Safety and Health Review Commission (OSHRC). The Commission is an independent administrative agency which determines the validity of the citations filed by the Occupational Safety and Health Administration. The Secretary of Labor is responsible for proving up the alleged citations before an Administrative Law Judge appointed by the Commission. The ALJ listens to the facts and arguments of the parties and ultimately determines the validity of the citations. The ALJ's decision is ultimately directed to OSHRC which has the authority to approve or reverse the ALJ's findings and conclusions. If an employer feels aggrieved by the decisions of the ALJ and the Commission, appeal is normally taken to the Court of Appeals for the Circuit in which the violation allegedly occurred. Appeal of such a final Order must be done within sixty (60) days.

Who is a covered employer? Under Section 3 (5) of the Act, an "employer" is defined in the following manner: "A person engaged in a business affecting commerce who has employees . . ." As is apparent, the definition of employer is extremely broad. It is not limited to a business which retains a certain number of employees. In fact, the prevailing view is that any employer with one or more employees is covered under the Act.4
All employees, regardless of their title or stature within a business, are covered by the Act. The Commission has even taken the position that employers should be broadly construed to include independent contractors in light of the statutory purpose and economic realities of the relationship.5

State OSHA plans. From its inception, Federal OSHA preempted or superseded all state job safety and health legislation. However, under Section 18 (a), the Secretary of Labor may determine that a state has promulgated standards comparable to Federal OSHA, has an enforcement plan which meets the criteria of the Federal Act, such that jurisdiction over an employer's business may be given back to the state. Each state has the right to submit a plan for approval by OSHA. If a state submits a plan which receives approval from the Federal government, the Secretary of Labor ultimately publishes a final decision approving the state plan. A number of states have approved plans which govern both public and private sector employees. Among those states covering both private and public sector workers are the following:
Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virgin Islands, Virginia, Washington, and Wyoming.

Several states, including District of Columbia, New Hampshire, New Jersey, Rhode Island, West Virginia, and Wisconsin have laws protecting public employees which are not OSHA approved state plans. An employer is wise to double check the states in which it does business to determine whether Federal OSHA or a complying state plan will govern occupational safety and health issues for its employees.

Duties under OSHA. The Federal Occupational Safety and Health Act is based upon the theory of pre-inspection compliance. Employers are not permitted to claim ignorance of regulations and standards at the time of an OSHA inspection. Employers are deemed to know, understand, and be in compliance with any applicable OSHA regulations and standards at all times. The thrust and purpose of the Act is preventative maintenance when it comes to the safety and health conditions and hazards which could harm employees.

OSHA standards. OSHA standards can be divided into "specification" standards and "performance" standards. Specification standards address the types of materials, work procedures, and equipment which are required to eliminate standards. Performance standards, on the other hand, deal with the degree of safety and health protection which is required but are generally more open ended, leaving the method of achieving the protection to the employer. Specific standards will take precedence over general industry standards. An employer's duty can be quickly summarized as an obligation to comply with both general industry and specific standards. Further, an employer has an obligation to satisfy requirements addressing employee training and education, as well as adequate supervision and providing necessary safety equipment.

Health standards. Employers may have a heightened duty to protect employees from exposure to various health hazards such as asbestos, vinyl chloride, and lead. As a result of the significant danger associated with these substances, an employer's preventative obligations are fairly extensive. In order for an employer to be held liable for violation of general or specific standards, the Secretary of Labor is obligated to prove that the employer failed to comply with the standard, the employee had access to a threatening condition, and the employer knew or should have known of the condition had the employer been reasonably diligent. It is not necessary that the government prove actual exposure to a hazard provided the employee had access to the area of the potential hazard.6
The vast majority of OSHA standards are violated by any period of noncompliance. However, a few standards, such as noise and other health hazards, are violated only when employers are exposed to the hazards in excess of a set duration and intensity limit. The time weighted maximums are frequently an important part of the standards' permissible exposure limit (PEL).

Employer defenses. Employers typically have two types of defenses to OSHA citations. Procedural defenses, which address the validity of the enforcement process such as challenges to inspection procedures, challenges to the hearing process, or the validity of citations. The second group of defenses are "substantive" defenses addressing the validity and applicability of a certain standard to the facts of the case. Some of the more common substantive defenses include improper standards, vagueness of standards, and even unpreventable employee misconduct.

Employee misconduct. In order to establish employee misconduct, the employer must first show the following elements:

1. The business had work rules designed to prevent the violation.

2. The rules were adequately communicated to all of the employees.

3. The employer monitored to determine violation of the rules.

4. Violations were enforced with appropriate discipline.

Impossibility. On occasion, an employer may also seek to establish a defense of impossibility of compliance with the standard. To prove impossibility, the employer must show that the standard was functionally impossible or would prevent performance of the required work, and that an alternative means of employee protection was either unavailable or was being used at the time of the alleged violation.7

Greater hazard. Some employers have also prevailed by showing that compliance with the standard would create a greater hazard than noncompliance. In order to prove this defense, the employer must show the following:

1. The hazards of compliance are greater than the hazards of noncompliance.

2. Other means of protecting employees are unavailable.

3. A variance application concerning the standard would be inappropriate.8

General duty clause. Employers should not forget what is often called the "general duty clause", Section 5 (a)(1) of the Act. The general duty clause is designed to apply to dangerous situations where no specific standard exists. In order to establish a violation of this section, the Secretary of Labor is required to show that (1) the employer failed to provide a workplace free of a hazard; (2) the hazard was recognized by the employer; and (3) it was causing or likely to cause death or serious physical injury. As a general rule, the courts have established that citation of the general duty clause is only proper if there is no specific standard which is applicable. The employer's obligation is to rectify "recognized hazards". Recognition refers to knowledge of the hazard as opposed to recognition of how the hazard can be abated. A hazard is also recognized if there is common knowledge in the industry about the nature of the safety or health threat.

Unpreventable misconduct. A serious violation exists if there is some possibility that death or serious physical harm could result. The violation is said to exist even if there is little likelihood that an accident might occur. The most common defense to the general duty clause is unpreventable employee misconduct. Case law has defined "hazardous conduct" as not preventable if it is so idiosyncratic and implausible in motive or means that conscientious experts, familiar with the industry, would not take it into account when prescribing a safety program.10 In attempting to establish unpreventable employee misconduct, the employer must again show that established work rules were available to prevent the violation, the rules were adequately communicated, steps were taken to discover violations, and the rules were effectively enforced.

OSHA recordkeeping. Employers should obtain three types of record-keeping forms from the Department of Labor. Those forms include an injury log, a supplementary record, and a summary. OSHA records are kept on a calendar basis and they should be maintained at the business available for inspection by the Department of Labor. The records should be maintained for a period of five (5) years after the year in which they were established. Records should be kept at each establishment which exists as a single physical location providing business services. In addition, an employer is required to display an official poster explaining the protections afforded employees under the Act. (See also, Chapter 40 herein on Recordkeeping.)

OSHA Form 200. The log and summary of occupational injuries and illnesses (OSHA No. 200) is required for categorizing injuries and illness and logging the severity and outcome of each. An employer is obligated to record each case in the log within six (6) work days after learning of the injury or illness. The information included in OSHA Form 200 is the date of the injury or illness, the employee's name, job title, injury or illness description, any fatality, lost work days or job transfers, and changes in the illness or injury. Employees and their representatives are to be given the right to inspect the log.11 Supplementary records of injuries and illnesses recorded in the log must also be maintained at each establishment containing virtually the same information as the log. Finally, at the end of each calendar year, an annual summary of injuries and illnesses must be prepared by each establishment. Information including calendar year, company name, establishment address, certification signature, title and date is required as part of the summary even if there were no injuries or illnesses reported as part of the log itself. Failure to properly maintain records will subject the employer to civil penalties and citations.

Worker "Right to Know" laws. Recognizing the threat represented by hazardous chemicals, all employers utilizing or transporting such materials are required to provide information to their employees concerning the nature of the hazardous chemicals. Hazardous communication programs are required to include information about labels, material safety data sheets, training and access to written records. Further, the Material Safety Data Sheets (MSDS) are required to be accessible to employees for review.

Complaints and anti-discrimination. Employees may not be the subject of discipline or discharge for complaining about safety and health violations under the Act. The Act expressly prohibits any type of discrimination for such reporting.12

Enforcement. A detailed discussion of OSHA enforcement policies is beyond the scope of this text. Nonetheless, employers should be aware that OSHA inspects places of employment based upon four categories which fall in the following priority order:

1. Imminent dangers.

2. Fatality and catastrophe investigations.

3. Investigation of complaints.

4. Regional programmed inspections.

Unannounced inspections. With the exception of the regional programmed inspections, all of the other inspections result from concerns that safety and health violations exist and threaten employees. Employers should keep in mind that the Act does not contemplate that employers will be given advance notice of inspections. Unannounced inspections are deemed to be an effective mechanism for the government to determine whether employers are complying with the Act's provisions and regulations. Although an employer may require the agency to procure a warrant for a non-consensual inspection, most inspections are conducted on the basis of consent. Indeed, many employers believe that cooperation with the agency often times makes the OSHA investigation process less painful and expensive.

Contesting citations. Generally, all violations of a single standard found at the same establishment will be grouped into one alleged violation. However, each noncomplying condition may exist separately as an individual citation and violation. An employer is obligated to post a copy of the citation for review by employees. An employer who properly files a written Notice of Contest within fifteen (15) working days from the date of receipt of the notice of the proposed citation and penalty, may contest the validity of the alleged violations. An employer must specifically address the following items in the Notice of Contest:

1. Contest of the alleged violation.

2. Contest of the abatement period.

3. Contest of the proposed penalty.

Failure to contest each of these items could be deemed to be an admission on the part of the employer of the validity of any of the noncontested segments. Once a contest has been properly filed, the employer has the right to proceed toward a negotiated settlement of the alleged violations or the employer may continue forward to a hearing.

Penalties. Penalties are ranked according to the degree of the severity of the violation. A de minimis violation exists when the violation has no direct or immediate relationship to safety and health. On the other side of the coin, willful violations are issued where the employer has intentionally disregarded or exhibited a plain indifference to the obligation to furnish a workplace free of recognized hazards.13 Some of the penalty citations of greatest concern for employers are those in the "repeated" category. An employer should keep in mind that a repeated violation could even be based on a different standard, including violations of the general duty clause. Where different standards are cited, the Department of Labor must prove substantial similarity of the hazardous conditions.

Penalty Amounts. Assessment of penalty amounts are based upon assessment criteria which are weighted and evaluated by the Department. Initially, the gravity of the violation is the starting point for the penalty assessment. Gravity is typically assessed as being composed of four factors:

1. Number of employees exposed to the hazard.

2. Duration of exposure.

3. Whether any precautions were taken against injury.

4. Degree of probability that an accident would occur.14

Good faith of the employer is also a factor assessed in imposing a penalty. Good faith can be shown by the following criteria:

1. Employer's overall safety program.

2. Attempts at compliance.

3. Cooperation with the Compliance Officer.

4. Prompt abatement of violations.

The final two assessment factors are the size of the employer's business and the employer's history of compliance.

Conclusion. OSHA standards and regulations can often times be quite confusing. As a consequence, the wise employer will spend some time with the regulations determining which standards apply to the employer's business. Outside consultants, including representatives from government safety and health agencies, can provide meaningful assistance in moving toward OSHA compliance.

OSHA Provides New Advisor Software for Businesses.The Occupational Safety and Health Administration (OSHA) has made available two new tools for businesses to use to help identify job hazards and realize the financial impact of occupational injuries and illnesses.

According to a recent press release from OSHA the Hazard Awareness Advisor and Safety Pays are the latest additions to OSHA's line of interactive software advisors downloadable from the agency's Web site at http://www.osha.gov/oshasoft.

The Hazard Awareness Advisor program is designed to help employers and employees, epecially those from small businesses without a professional safety and health consultant, locate potential hazards in their specific work environments. After questioning users extensively about their activities, practices, policies, materials, and equipment, the program narrows the list of hazards that may be present. The software then prepares a customized report that briefly describes likely hazards for that business.

The program is not a subsititute for safety and health professionals. It is merely an introduction to hazard recognition. The need for this advisor was brought to OSHA's attention by the National Federation of Independent Business (NFIB). Many trade associations and labor organizations suggested improvements to early versions of the software. OSHA now hopes to get more suggestions from the public for later versions.

Safety Pays software is designed to illustrate to employers the impact occupational injuries and illnesses have on the company's bottom line. Using data from the insurance industry, the program analyzes a lost workday scenario selected by the user and reports the average direct and indirect costs associated with that particular case. The software, using the company profit margin, also estimates sales necessary to cover the costs of an incident.

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SOURCES

1. C. Gersuny, Work Hazards and Industrial Conflict (1981).
   
   
2. Section 2 (b) of the Act.
   
   
3. P. L. 101-508, 104 Stat. 1388 (November 5, 1990).
   
   
4. C. Poughkeepsie Yacht Club, 7 OSHC 1725, 1979 OSHD § 23, 888 (1979) (nonprofit corporation with single paid employee held to be an employer.)
   
   
5. S & S Diving Company, 8 OSHC 2041, 1980 OSHD § 24, 742 (1980).
   
   
6. Donnovan v. Adams Steel Erection, Inc., 766 F.2d 804 (3rd Cir. 1985).
   
   
7. Isaacson Structural Steel Company, 3 OSHC 1138, 1974-75 OSHD § 19, 592 (1975).
   
   
8. Russ Kaller, Inc., 4 OSHC 1758 (1976).
   
   
9. Usery v. Marquette Cement Manufacturing Company, 568 F.2d 902 (2nd Cir. 1977).
   
   
10. National Realty and Construction Company v. OSHRC, 489 F.2d 1257 at 1266-67 (D.C. Cir. 1973).
    
    
11. 29 CFR § 1904.7 (b)(1)(1990).
    
    
12. 29 CFR 1977.9(c)(1990); Donnovan v. Commercial Sewing, Inc., 562 F Supp. 548 (D. Conn. 1982).
    
    
13. St. Joe Minerals Corporation v. OSHRC, 647 F2d 840 (8th Cir. 1981).
    
    
14. Turner Company, 4 OSHC 1554 (1976) rev'd on other grds 561 F2d 82 (7th Cir. 1977).