MGT 4523: OSHA

liability

Corporate officers supervising the acts resulting in OSHA violations may be held individually criminally liable for the offense. However, the Department of Justice has been reluctant to enforce claims against individual decision makers.

criminal willful violations

Criminal willful violations are a result of a death that is caused by a hazardous situation. These are issued when the employer's actions, or lack thereof, resulted in the death of an employee. This offense is considered to be a criminal offense and is punishable by fines of up to $250,000 for an individual owner and up to $500,000 for a corporation per violation. Violators may also face penalties of up to six months of imprisonment. In some cases, both punishments may be issued.

What can an employer do to protect employees from workplace violence?

- An employer's zero-tolerance policy toward workplace violence and a prevention program are key elements of protection for employees. - Employers who do not take reasonable steps to prevent or abate a recognized violence hazard in the workplace may be found to be in violation of the General Duty Clause.

Reports must contain the following information:

a. Incident date b. Category of illness, if applicable c. Description of incident d. Identification of affected employee e. Extent of illness or injury f. If incident was an illness, whether the employee was eventually transferred or terminated

although workers comp is the exclusive remedy available to injured employees,

an exception exists for intentional acts. - if the workplace injury is caused by the employer's willful act, including willful disregard of known dangers, -the employee can sue the employer for compensatory (to compensate the injured party) and punitive (to punish employer) damages

To be required to report illness, death or injury:

it involves: -medical treatment -loss of consciousness -restriction of work or motion, or - transfer to a different position ***if the injury does not fit into one of these categories, then no report need be made***

Nothing in the ADA prevents an employer from,

maintaining a workplace free of violence or threats of violence - an employer never has to condone threats or actual violence, even if a disability caused the threats or violence

refusal to work

- Where an employee or a group of employees believe that the employer has violated its general duty to provide a safe working environment, the employees may refuse to work in that environment or to perform a given task. - The employees' refusal must be based on a reasonable apprehension of death or serious injury, coupled with a reasonable belief that no less drastic alternative is available. - If an employee chooses not to perform an assigned task as a result of this apprehension, the Act prohibits an employer from discharging or discriminating against that employee.

Other reporting requirements

- Within 7 days of an incident reported on Form 300, an additional record containing more complete information (Form 301) must be made and filed with OSHA - In addition, an incident involving fatalities or the hospitalization of 3 or more employees must be reported to the Administration within 8 hours of the incident - Each work-related inpatient hospitalization, as well as amputations and losses of an eye, must be reported to OSHA within 24 hours. - If the injury or illness does not result from a work-related cause, no report need be made - If the injury or illness is work-related, then it must be reported as long as it is an illness, death or an injury

Workplace violence

- Workplace violence can range from threats and verbal abuse to physical assaults and homicide. OSHA reports that approximately 2 million Americans are victims of workplace violence each year.

employers should develop a workplace violence policy with the following features:

- a zero tolerance policy towards threats or acts of violence - an establish complaint process for employees to be able to warn the employer of potential violence -a consistent application for disciplinary actions in response to violent acts -training for managers and employees to recognize workplace violence - a requirement that employees provide employer with any protective or restraining order that lists the workplace as a protected area

Sever injury reporting

Employers must report any worker fatality within 8 hours and any amputation, loss of an eye, or hospitalization of a worker within 24 hours.

intentional disregard violations

Intentional disregard violations are determined by a refusal to follow proper procedures. This is demonstrated in three different ways: 1. The employer was aware of the standards and regulations set by OSHA and also had knowledge of the alleged hazard, but chose not to address it. 2. The employer was unaware of the standards and regulations set by OSHA, however, the employer was aware of a similar legal requirement and had knowledge of the hazard, yet choose not to address it. 3. The employer had knowledge of the specific steps that need to be taken to address a hazard and chose to substitute their own judgements instead.

Recordkeeping Requirements

Many employers with more than 10 employees are required to keep a record of serious work-related injuries and illnesses. (Certain low-risk industries are exempted.) Minor injuries requiring first aid only do not need to be recorded.

Likely to Cause Death or serious physical harm

The Review Commission has stated that "the proper question is not whether an accident is likely to occur, but whether, if an accident does occur, the result is likely to be death or serious physical harm."

Employee Reduction of Risk

Where an employer cannot on its own make a workplace safe for its employees, but through the acts of its employees, the workplace can be made safe, the employer is allowed to require those acts for anyone that chooses to work there.

OSHA violations

Willful - (Employer intentionally and knowingly commits the violation) - up to $136,532 penalty. Serious - (Substantial probability that death or serious physical harm can result and employer knew or should have known of hazard) - up to $136,532 penalty Repeat - (violation existing on re-inspection after first inspection) up to $136,532 penalty Failure to abate - (failure to correct prior violation) up to $13,653 per day Other - (violation directly related to job safety and health but would not cause death or serious bodily harm) up to $13,653 penalty

The Occupational Safety and Health Review Commission held that a willful violation is one

"committed with intentional, knowing or voluntary disregard for the requirements of the Act, or with plain indifference to employee safety" - It differentiated a willful violation from others by "an employer's heightened awareness of the illegality of the conduct or conditions and by a state of mind, i.e., conscious disregard or plain indifference for the safety and health of employees."

Employer Defenses to OSHA violations

- Although where an employer knew or should have known of a certain situation, then the employer is liable for the harm that results from that situation.... - Employers may use prior precautions, such as training sessions and other educational programs aimed at increasing worker safety, as a means to minimize their liability. - Where the employee is willfully reckless, notwithstanding all of the employer's efforts at safety, the employer is not liable.

What is a negligent violation?

- American Wrecking Corp. v. Secretary of Labor. Here the court held that that an employer who commits an OSHA violation through negligence has not committed a "Willful" violation. - The court held that "a distinction between serious and willful violations exists only if willfulness means knowledge that the conditions violate the statute or regulations - actual rather than imputed knowledge, for otherwise we are back to negligence."

Constructive Knowledge

- An employer's knowledge may be inferred from an OSHA regulation which is issued to an industry about a certain hazard. - Or, an industry publication citing a potential problem area or a voluntary industry standard may be used against a specific employer who claims that it was not aware of the risk.

Reporting Requirements for OSHA

- Any employer covered by the Act, with the exception of those with 11 or fewer employees, must maintain certain records for OSHA compliance. - Where the injury or illness is work-related and meets the general recording criteria or falls into specific categories, reporting is mandated - Reports must be on Form 300 produced by the Department of Labor, and must be posted for the employees to see each year from February 1 to April 30. Form 300 is used to classify work-related injuries and illnesses and to note the extent and severity of each case. Employers must keep the log and summary for __ years following the year to which they pertain.

OSHA violations continued..

- Falsifying records, reports or applications can bring a fine of $10,000 or up to six months in jail, or both. - Violations of posting requirements can bring a civil penalty of up to $13,653. - Assaulting a compliance officer, or otherwise resisting, opposing, intimidating, or interfering with a compliance officer while they are engaged in the performance of their duties is a criminal offense, subject to a fine of not more than $5,000 and imprisonment for not more than three years.

Actual knowledge

- First, it can be shown through past safety practicies or policies of the employer which evidence that the employer knew that there might be a hazard. - Second, Actual knowledge may be shown where the hazard is so obvious that anyone would be aware of it.

s5 requirements of OSHA:

- First, the employer must comply with all of the safety and health standards dictated by the Department of Labor. These are generally called the "compliance" requirements. - Second, the employer must "furnish to each of [its] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm." This broad requirement is called the "general duty "clause, and traditional employer defenses are not often available.

What are recognizable hazards?

- It has been generally accepted that a recognized hazard may take the form of actual knowledge when the employer actually knows of the hazard, - or Constructive knowledge if the industry recognizes the hazard even if the employer doesn't actually know of the hazard.

Developing safety standards

- OSHA can begin standards‑setting procedures on its own initiative, or in response to petitions from other parties - If it is determined that a specific standard is needed, any of several advisory committees may be called upon to develop specific recommendations. - Recommendations for standards also may come from NIOSH - Once OSHA has developed plans for a standard, it publishes these intentions in the Federal Register as a " Notice of Proposed Rulemaking"

What is a "Willful" violation?

- OSHA defines a "willful" violation as "a violation that the employer intentionally and knowingly commits or a violation that the employer commits with plain indifference to the law. - The employer either knows that what he or she is doing constitutes a violation, or is aware that a hazardous condition existed and made no reasonable effort to eliminate it."

Penalties

- Penalties and "abatement orders " are assessed in connection with the officer's report. - OSHA penalties are based on violations of standards and failure to comply, rather than the number or severity of injuries.

only exceptions to the reach of OSHA

- Self- employed people - Family members employed by family farms - State and local government employees (except under OSHA approved plan) - Work environments regulated by other federal agencies (such as mining or nuclear energy)

OSHA enforcement

- The Act is enforced by the Occupational Safety and Health administration through the Department of Labor. - Enforcement is through inspections of the workplace by OSHA compliance officers , either as a result of complaints from employees, grievances filed by other sources, or reports of fatal or multiple injuries. - OSHA Inspections, including those to high-risk workplaces, are conducted without prior notice to the employer. - OSHA prohibits an employer from discharging or discriminating against any employee who exercises any right afforded by the Act.

OSHA standards

- The Act provides for the creation of the National Institute for Occupational Safety and Health (NIOSH) which is the research arm of the Occupational Safety and Health Administration. - The purpose of NIOSH is to conduct research in workplace health and safety in order to formulate and makes recommendations to the Secretary of Labor. - If those recommendations are approved, then they may become the standards of conduct in connection with a certain industry.

General duty Clause

- The clause reads, "Each employer . . . shall furnish to each of his (sic) employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." ***The clause protects employees against certain hazards in the workplace, where no other OSHA standard would address the condition.**

Managing and posting records

- The records must be maintained at the worksite for at least 5 years. - Each February through April, employers must post a summary of the injuries and illnesses recorded the previous year. - Also, if requested, copies of the records must be provided to current and former employees, or their representatives

Physical or Economic Impossibility of Compliance

- There are some standards that employees contest. These standards would be those where the employees believe that the burden of complying is greater than the danger prevented by the compliance. These employees may therefore refuse to work. - Because courts hold that the safety of the workforce is of greater importance than the burden of dealing with work stoppages, the employer could apply to the Secretary for a variance from the standard which would allow this employer to be free from compliance based on the specific situation at its work site. - A variance is a right given to the employer to not comply with the standard, either permanently or on a temporary basis if the employer's work environment is at least as safe as if the employer had complied.

Multi- employer doctrine

- When a hazardous condition is found on a job site, OSHA may issue citations to every employer on site, regardless of the fact that it is usually only one employer who created the hazard and notwithstanding union jurisdictional rules that may prohibit members of different crafts from taking action to correct such hazards. - Thus, an employer must insure that all areas under its control, where employees of any kind are working, are safe work places. The duty is that broad.

If there is no OSHA standard....

- Where a problem has recurred in the workplace, but no new OSHA standards have yet been developed to deal with this problem, employees are left to seek relief from the risk through General Duty Clause. - There is no OSHA standard which directly addresses exposure to blood-borne pathogens such as HIV, so the General Duty clause may apply.

Employee Rights under OSHA

- are identified on OSHA poster no. 2203 which may be placed in the workplace. - While employees must be informed of their OSHA rights by their employer, displaying this poster is not mandatory. - Employee rights include requesting and participation in inspections, notice of an employer's violations or citations, access to monitoring procedures and results, and access to medical information. -Whistleblowers are protected under the Act

The General Duty Clause only applies where an employee

- had a good faith belief that there is an unsafe environment. Courts have held that the belief that casual contact with infected co-workers poses a danger is not a reasonable belief, so the clause does not apply. - Other OSHA Regulations may also apply to hazards such as HIV and the Hepatitis B virus 1) 29 CFR 1910.132 requires employers to provide personal protective equipment 2) 29 CFR 1910.145 (f) requires accident prevention tags to warn of biological hazards

section 6 of OSHA: emergency temporary standards

- provides that the Secretary may establish temporary standards which will be effective immediately upon publication in the Federal Register without having to go through the lengthy rulemaking process otherwise required by the Act. - The USDOL Secretary may establish emergency temporary standards when it is determined: n that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and - that such emergency standard is necessary to protect employees from such danger. - The emergency standard is effective until regular standards are approved through the regular procedures or for 6 months, whichever is shorter.

occupational safety and health review commission:

-An independent Federal agency created to decide issues of citations or penalties resulting from OSHA inspections of American work places. -The Review Commission, therefore, functions as an administrative court, with established procedures for conducting hearings, receiving evidence and rendering decisions by its Administrative Law Judges (ALJs).

How does OSHA define a recordable injury or illness?

-Any work-related fatality. - Any work-related injury or illness that results in loss of consciousness, days away from work, restricted work, or transfer to another job. - Any work-related injury or illness requiring medical treatment beyond first aid. - Any work-related diagnosed case of cancer, chronic irreversible diseases, fractured or cracked bones or teeth, and punctured eardrums. -There are also special recording criteria for work-related cases involving: needlesticks, sharps injuries. hearing loss and TB

General hazard defense

-Employers may contend that compliance with a health or safety standard would subject the employees to a greater hazard that which is prevented by the compliance. In order to assert this defense, however, an employer must show: a. the hazards of compliance with the standard are greater that the hazards noncompliance b. alternative means of protection are unavailable, and c. a variance from the Secretary was unavailable or inappropriate.

plain indifference violations

1. Management had knowledge of OSHA standards and regulations, but did not pass them down to lower level supervisors or employees. 2. Management was made aware of an obviously hazardous situation and took little to no preventative measures. 3. The employer did not know of any legal requirements for a hazardous situation, but knew through another source that it was dangerous to employees and did little to nothing to resolve the issue. 4. If the employer exhibits no legal knowledge of an issue, but is determined to have not placed any importance on the information anyway.

Compliance regulations, certain specific regulations apply to all employers and industries--such as:

1. Requirements regarding the physical layout of the work site 2. Employees must be trained and informed (through classes, labels, signs) regarding protective measures. 3. Medical examinations must be provided by the employer where an employee has been exposed to toxic substances. Continual Training requirement: - OSHA requires that employers adopt a program of continual training of its employees regarding safety in the work place. - Every time that an employee is hired or transferred into a new position, even for just a day, the employer is required to provide safety training to that employee.

The Review Commission, in a separate opinion, concluded that an employer at a multi employer work site is not responsible for safety hazards to its or other's employees where:

1. those hazards have been created by another employer 2. the employer did not create and does not control the hazard 3. the employer does not have the expertise to correct or even to recognize the hazard, AND; 4. the employer has taken reasonable measures to protect its own employees from the hazards.

workplace hazards/ injuries where the employer will not be held responsible under OSHA:

1. where the harm is the result of reckless behavior by an employee 2. where it is physically or economically impossible for the employer to comply with a safety requirement 3. where compliance with a requirement presents a greater harm than not complying (greater hazard defense)

OSHA administers anti- retaliation provisions to:

19 specific industries including: - airline -commercial motor carrier - consumer product - environmental -financial reform - health care reform - nuclear - pipeline - public transportation agency - railroad - maritime - securities laws

Willful violations fall into

3 categories: 1. intentional disregard 2. plain indifference 3. criminal willful violations

An illness or injury is considered work-related if:

An illness or injury is considered work-related if: 1) it occurred on the employer's premises, 2) it occurred as a result of work-related activities, 3) the employee was required to be there by the employer, or 4) employee was traveling to work or to a place he was required to be by the employer. ***If the activity does not fit into one of these categories, then it was not work-related and no report need be made****