E. Occupational Safety and Health Act (OSHA)

Under the Occupational Safety and Health Act of 1970 (OSH Act), employers are responsible for providing a safe and healthful workplace.  OSHA’s mission is to assure safe and healthful workplaces by setting and enforcing standards, and by providing training, outreach, education and assistance.  Employers must comply with all applicable OSHA standards. Employers must also comply with the General Duty Clause of the OSH Act, which requires employers to keep their workplace free of serious recognized hazards.

OSHA Coverage

The Occupational Safety and Health (OSH) Act covers most private sector employers and their workers, in addition to some public sector employers and their workers in the 50 states and certain territories and jurisdictions under federal authority. Those jurisdictions include the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Northern Mariana Islands, Wake Island, Johnston Island, and the Outer Continental Shelf Lands as defined in the Outer Continental Shelf Lands Act.

Private Sector Workers

OSHA covers most private sector employers and workers in all 50 states, the District of Columbia, and the other United States (U.S.) jurisdictions either directly through OSHA or through an OSHA-approved State Plan. State Plans are OSHA-approved job safety and health programs operated by individual states instead of federal OSHA. Section 18 of the OSH Act encourages states to develop and operate their own job safety and health programs and precludes state enforcement of OSHA standards unless the state has an OSHA-approved State Plan.

OSHA approves and monitors all State Plans and provides as much as fifty percent of the funding for each program. State-run safety and health programs must be at least as effective (ALAE) as the federal OSHA program. OSHA provides coverage to certain workers specifically excluded from a State Plan, for example, those in some states who work in maritime industries or on military bases.

The following 22 states or territories have OSHA-approved State Plans that cover both private and public sector workers:

Alaska	Arizona	California	Hawaii
Indiana	Iowa	Kentucky	Maryland
Michigan	Minnesota	Nevada	New Mexico
North Carolina	Oregon	Puerto Rico	South Carolina
Tennessee	Utah	Vermont	Virginia
Washington	Wyoming

State and Local Government Workers

Workers at state and local government agencies are not covered by OSHA, but have OSH Act protections if they work in those states that have an OSHA-approved State Plan. OSHA rules also permit states and territories to develop plans that cover state and local government workers only. In these cases, private sector workers and employers remain under federal OSHA jurisdiction.

Six additional states and one U.S. territory have OSHA-approved State Plans that cover state and local government public sector workers only:

• Connecticut
• Illinois
• Maine
• New Jersey
• New York
• Virgin Islands

Are State Plan Workplace Standards the Same as OSHA’s?

State Plans must set workplace safety and health standards that are “at least as effective as” as OSHA standards. Many State Plans adopt standards identical to OSHA. State Plans have the option to promulgate standards covering hazards not addressed by OSHA standards. A State Plan must conduct inspections to enforce its standards, cover state and local government workers, and operate occupational safety and health training and education programs. Click here to see a list of links to the State Plans’ safety and health standards and regulations. State Plan responses to OSHA standards and Federal Program Changes issued since 2006 can be found here.

Can State Plans Impose Higher Fines or Stricter Penalties than OSHA?

Yes. State Plans have their own penalty reduction policies and procedures that may differ from OSHA’s but must be deemed at least as effective. All State Plan policies and procedures related to penalties must be submitted and reviewed by OSHA. State Plans also have their own system for review and appeal of citations, penalties, and abatement periods. The procedures are generally similar to OSHA’s, but cases are heard by a state review board or equivalent authority.

If your business is covered by the Occupational Safety and Health Act, your employees have the right to request an OSHA inspection. OSHA also may make unrequested inspections.  Inspections can cover the entire workplace or just a few operations. OSHA calls its inspectors “compliance officers.” Some are trained about safety hazards; some are trained about health hazards (industrial hygienists); a few are trained about both.

Complaint & Inspection Process

A request for an OSHA inspection is an important decision. When a specific OSHA standard applies to a clear hazard, it may prove the right decision.  However, OSHA does not have standards for every hazard, and some current OSHA standards are not fully protective of workers’ health or safety. While it is possible for OSHA to issue a “General Duty Clause” citation for hazards not covered, or not covered sufficiently, by OSHA standards, the requirements for issuing such a citation are very stringent and OSHA may not be able to issue one.  Because of this, there are cases in which calling OSHA may not be the best way to get management to fix a problem.

In fact, if OSHA inspects and decides not to issue a citation, the workforce may be at more of a disadvantage with management waving their “clean bill of health” inspection report.  Employees should consider a range of options, including telling management that they will call for an OSHA inspection if management does not fix the problem. In certain situations, this could get a more effective and quicker response than calling for an actual OSHA inspection.

Often, OSHA prefers to “investigate” complaints by faxing a letter asking about the hazard to the employer, rather than by conducting an on-site inspection.  The employer is required to respond back to OSHA within five working days. However, if you give OSHA a written, signed complaint that documents a hazard or an OSHA violation and want OSHA to come to your workplace, OSHA must do an on-site inspection.  Sometimes OSHA’s fax policy can be helpful when a written inquiry is better than an actual inspection. For example, if there is no OSHA standard that covers the hazard, a letter of inquiry may prompt management action. An actual OSHA inspection — and no citation — may encourage management not to fix the problem.  If OSHA decides not to inspect, they must notify the employees in writing and If OSHA decides not to inspect, they must notify the employees in writing and give reasons. Employees may question this decision with the OSHA area director and regional administrator.

Advance Notice

OSHA rarely gives advance notice.  When OSHA does give advance notice of an inspection to management, they must also inform the employees’ representative, i.e. the union.  If there is no union and no safety committee with a worker representative, OSHA only has to inform management. Workers sometimes think that management knows about an OSHA inspection in advance.  However, it is a crime for OSHA employees to give unauthorized advance notice of an inspection. Sometimes a delay between the inspector’s arrival at the workplace and the beginning of the inspection allows time for employers to change conditions.

OSHA will give employers advance notice of an inspection only under four conditions:

• In cases of apparent imminent danger, to try to get management to fix the condition immediately.
• When the inspection must be after regular business hours or when special preparations are necessary.
• If management and worker representatives are not likely to be on-site unless they have advance notice.
• In other circumstances where the OSHA Area Director thinks a more complete inspection would result, such as in a fatality investigation.

Employee Representatives

The law says that a representative authorized by workers has a right to accompany the inspection.  This applies whether you requested an inspection or to an OSHA scheduled inspection. Under no circumstances may the employer choose the workers’ representative.  The OSHA complaint form does not include a line to indicate who this representative is (or who an alternate is for other shifts or days off). If you are an employee, make sure you provide this information with your complaint.

Employers are not required to pay employees while serving as employee representatives on inspections unless the employer agrees to do this or contract language requires it.  In practice, most employers do not dock pay from employees serving in this capacity.

The Inspection

The inspection includes an opening conference, a “walk-around” of all or part of the workplace, and a closing conference.  This may take a few hours or several weeks, depending on the number of hazards, workplace size, and other factors. Take notes throughout the process.  The employer may legally require OSHA to go to court to seek an inspection warrant before allowing entry. This can delay the inspection.

The Opening Conference

On the day of the inspection, the inspector arrives and asks to meet with representatives of management and employees to explain the inspection’s purpose.  The opening conference is supposed to be kept as brief as possible. However, make sure that the inspection will cover the hazards in the complaint. If either party objects to a joint opening conference, the inspector will conduct separate opening conferences for labor and management.  During the opening conference, the inspector will determine whether employees of other employers are also working at the site. If the inspection affects them, the inspection may include other employee representatives.

After the opening conference, but before the inspector walks around the facility, the inspector usually checks the OSHA required Log and Summary of Occupational Injuries and Illnesses and may examine other OSHA required records.

The Walk-Around

After the opening conference, the inspector, accompanied by management and employee representatives, will check the safety and/or health hazards in the complaint.  The inspector may decide to check for other hazards or even to expand the inspection to cover the entire workplace.

Make sure that the inspector talks to affected employees.  Inform co-workers that the inspection is in progress and that they have a right to talk privately and confidentially to the inspector and to make their own verbal or written complaint to OSHA at anytime.  The inspector may also conduct private interviews outside the workplace. Workers should be encouraged to point out hazards and to describe past accidents, illnesses, and worker complaints.

The OSHA inspector is supposed to bring “apparent violations” to the attention of employer and employee representatives at the time they are documented.  Make sure that conditions are typical and that management has not shut down equipment, opened windows or changed other conditions. The inspector may have to return on another shift or operation. If the inspector does not observe hazards alleged in the complaint, the employee representative should explain how employees were or could be exposed.

The inspector may be using equipment to measure noise, dust, fumes, or other hazardous exposures.  Watch these tests. If you do not understand what the inspector is doing, ask. Request summaries of the sampling results, which OSHA must provide to the requesting party as soon as practicable. Take notes.

The Closing Conference

The inspector is required to have a closing conference, jointly or separately, with company and employee representatives at the end of the inspection. if management wants separate closing conferences, OSHA will hold the employee representative conference first to allow for any more employee input.  OSHA will discuss “apparent violations” and ways to correct hazards, deadlines, and possible fines. A second closing conference may be held if needed information, such as sampling results, was not initially available.

The inspector will also advise the employee representative that:

• The employer must not discriminate against employees for health and safety activity.
• If the employer contests an OSHA citation, the employees have a right to elect “party status” before the Occupational Safety and Health Review Commission (an independent agency).
• They must be notified by the employer if the employer files a notice of contest or a petition for modification of an abatement date.
• They have a right to contest the time OSHA allows the employer for correcting a hazard. (Employees, unlike employers, cannot contest other aspects of the citation before the Review Commission). A contest must be in writing and must be filed within 15 working days after receipt of the citation.

OSHA Citations

OSHA may chose to issue citations and financial penalties to the employer for violating specific OSHA standards or regulations or for violating the “general duty clause” Section 5(A)( I) of the Act OSHA does not cite or fine employees for violation of their responsibilities.

OSHA must generally issue any citations within six months of the occurrence of any violations. Citations are supposed to be mailed to employee representatives no later than one day after the citation is sent to the employer. Citations can also be mailed to any employee upon request.