Chapter 11 - Laws Affecting Workplace Health and Safety

Serious violation

A serious violation occurs 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 (i.e., a stairway without a guard rail).

Employer Challenges to Worker's Comp Claims

•Employee willfully violated safety rules •Fraud •Injury or illness is due to employee misconduct •Injury or illness is due to preexisting condition •Injury or illness is due to substance abuse •Injury or illness is not work related

De minimus violation

A de minimus violation arises from a nonserious condition that has "no direct or immediate relationship to safety or health"56 (i.e., not having partitions between toilets in the restroom). No citations are issued, only a de minimus notice.

Voluntary, or elective, workers' compensation laws

Allow employers to accept or reject insurance coverage of their own volition, but employers choosing not to participate can be sued by workers who are injured or become ill due to a work-related incident.

Record-keeping

Although all employers engaged in interstate commerce are covered by OSH Act, those who have more than ten employees are required to maintain specific records of job-related injuries and illnesses.81 Pg 321

Requesting a variance from OSHA standards

An alternative to challenging a standard in the judicial system is requesting a variance. The secretary of labor may grant employers an exemption from a standard, under Section 16 of the Act, if it is inappropriate to the employer's particular situation. This is known as a variance and is classified as either temporary or permanent.77 A temporary variance may be granted when an employer cannot meet the requirements to comply with a standard by its effective date. In essence, the employer is asking for an extension. The firm cannot be in compliance by the effective date, but it will, eventually, be in compliance. However, to qualify for a temporary variance, the employer must demonstrate that all possible measures are being taken to protect employees and that all steps necessary for compliance are also being taken. Additionally, all employees must be informed by the employer of the variance request. Temporary variances may be granted for the time needed to comply, not to exceed a period of one year. The employer may renew temporary variances up to two times, each of these for a period not to exceed six months.78 A permanent variance may be granted to an employer who can prove that current conditions or particular methods provide as safe a worksite as those that would exist through compliance with the OSHA standard.79 The Occupational Safety and Health Agency ordinarily inspects the premises before granting a permanent variance. Again, all employees must be informed of the application for the variance, and of their right to request a hearing on the matter necessitating a variance. Within six months after a permanent variance has been granted, either the employer or the firm's employees may petition OSHA to modify or revoke the variance.80 The secretary of labor may take similar steps to modify or revoke the variance regardless of employer initiatives.

Contributory negligence defense

An employer claims that the damages for injuries were due, at least in part, to the negligence of the affected employee. Injured workers cannot recover awards for damages for which they were primarily responsible. However, if judges or juries determine that responsibility for injuries or illnesses is mutually shared by both the employee and the employer, the liability for damages may be distributed proportionally. Again, well-constructed work rules, proof that the employee was aware of safety procedures, and thorough investigations (documentation) would be helpful in establishing the defense.

Penalties by OSHA

An employer who has been cited for a serious violation is assessed a penalty of up to $7,000 for each violation.95 A penalty for a serious violation may be adjusted downward based on the employer's good faith, the history of rectifying previous violations, the gravity of the alleged violation, and the size of the business. When an employer willfully violates the Act, that employer may be assessed a penalty of not more than $70,000 but not less than $5,000 for each violation (see Table 11.5). If an employer is convicted of a willful violation that has resulted in the death of an employee, the offense is punishable by a court-imposed 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 under the Comprehensive Crime Control Act of 1984 for a criminal conviction involving an employee's death.96

Imminent danger violation

An imminent danger violation occurs when, as the name implies, death or serious physical harm to an employee is imminent (i.e., an open flame in a fireworks factory). The organization must stop the activity immediately, and work may not be resumed until the specified danger has been eliminated or corrected.5

Other-than-serious violation

An other-than-serious violation is one involving a situation in which the most serious illness or injury would probably not result in death or serious physical harm (i.e., an extension cord coiled on the floor but not in a pathway).

Exclusivity principle

As part of the fundamental rationale for workers' compensation legislation, an employee injured in the course of employment receives fixed compensation that is described statutorily as the employee's "exclusive remedy" against the employer. Under the exclusivity principle, an employee receiving workers' compensation benefits is barred from bringing a common-law suit against the employer for a work-related injury. Yet there are several exceptions to this general rule. For example, the exclusivity principle will not apply to cases where injuries are found to be caused by intentional acts of the employer. If an employee can prove an accident arose out of an employer's specific intent to injure the employee, then the employee is not barred from bringing a common-law claim.18 Therefore, if an employer or his or her agent purposely placed an employee in harm's way (i.e., told the employee to ignore a safety procedure), the exclusivity principle would no longer apply. In certain instances, some states permit litigation when it can be shown that an employer was grossly negligent regarding a work-related accident or illness. For example, if the conditions causing the accident were so obvious and the resulting injury so apparent that a reasonable person would have easily anticipated the employee's injury, then the employer's failure to eliminate or reduce the hazard was clearly the major factor contributing to the employee's injury. Even when challenged in court, the employer is still often able to prevail in litigation using any of three previously mentioned defenses (assumption of risk, the fellow-servant rule, and contributory negligence). Even though the employer incurs the additional cost of paying the workers' compensation premiums, this expense is offset by avoiding, or at least reducing, the likelihood of resolving the claim through the courts. The advantages offered by workers' compensation laws are that in return for assuming liability, not only was the employer's monetary liability fixed to specific statutory amounts, but employees also, by statute, had to forgo any further attempts to recover compensation through common law. In short, when workers' compensation is the employee's exclusive remedy, this relieves the employer of unpredictable, and potentially costly, common-law litigation.

Work-related illnesses

As with injuries, illnesses must be shown to arise out of employment; this includes mental illnesses.25 Whether for physical or mental illnesses, the employee must establish a causal connection between the disability and the nature of his or her employment. This causal link invariably requires substantial medical evidence to support any claim that occupational exposure to some factor resulted in the illness.26

Assumption of risk defense

Based on the philosophy that a person accepts the inherent risks involved in the job, thus absolving the employer of responsibility for injuries or illnesses incurred as a result of the normal risks of a job. The employer must be able to show that the employee was aware of, or should have been aware of, the hazards pertaining to a particular job. Safety briefings and training would provide means of establishing knowledge. Good job analysis and thorough job descriptions of working conditions would be another means of establishing this, provided that the job descriptions were disseminated to the affected employees.

Colorado laws

Compulsory; Private carrier, No exemption for employer with few than ___ employees, Direct method of payment

Willful and repeated violation

Finally, a willful and repeated violation occurs when an employer is notified of a violation by a compliance officer and refuses or fails to take corrective action. Essentially, any of the citations mentioned earlier, except de minimus violations, can become a willful violation.

Work-related emotional stress disorders

HR strategies related to reducing stress involve job design (emphasizing employee control) and developing reward and incentive programs that not only satisfy employee needs but are equitably administered as well. Managerial training programs may be used to ensure that managerial personnel fully understand their leadership roles and the adverse consequences for poor leadership. Clearly communicated expectations and criteria for benefit and incentive eligibility can reduce exaggerated and unrealistic expectations among employees. Flexible work schedules may be developed to accommodate employees' family obligations. Finally, stress management courses can be offered to help employees develop strategies to deal with stress.

Challenging OSHA Standards

In the event that employers believe OSHA has developed and implemented an unrealistic standard, that standard may be challenged in the U.S. Court of Appeals during a sixty-day period following issuance of the standard. The Supreme Court, in a case involving standards established for exposure to benzene, affirmed that a standard must address a "significant risk" of material health impairment to be sustained by the courts When standards are challenged, federal courts have to consider two major questions in deciding their efficacy: Is the standard technologically feasible? And is the standard economically feasible?

Interim standards

Interim (or temporary) standards are those that the secretary of labor was given the power to establish for two years following the effective date of the Act. These were generally taken from preexisting national consensus standards. The two-year authority under Section 29 U.S.C. § 655(a) to promulgate "national consensus standards" as occupational safety and health standards expired on April 29, 1973.

Fellow-servant rule defense

Involves an employer's assertion that injuries or illnesses were derived from the actions, whether accidental or intentional, of another employee. The injury or illness to one employee stemming from the negligent act of a fellow employee could be remedied by suing the other employee rather than the employer. Properly conducted accident investigations would be a viable method for making such an assertion.

Workers' compensation

Laws that provided workers with cash benefits for work-related injuries and death. Workers' compensation is not paid to an individual merely because he or she is injured or ill. The injury or illness must arise from employment; either the injury or illness must be related to work.

Employee protection against retaliation

Like any of the other statutes previously discussed in this textbook, whistleblowers are protected against retaliation for filing an OSHA complaint. Therefore, any adverse action taken against an employee who requests an OSHA inspection or participates in an accident investigation violates the OSH Act. Managers should ensure that any disciplinary actions, terminations, or transfers of employees who have filed OSHA complaints can be clearly shown not to be connected to the OSHA complaint.99

Secondhand smoke

Most companies in the United States have adopted workplace smoking policies, although they vary from company to company. These policies typically differ in degree of stringency, but they generally serve one primary goal in the workplace: to protect employees from exposure to the chemicals found in environmental tobacco smoke, commonly called "secondhand smoke." Since the Environmental Protection Agency (EPA) first classified tobacco smoke as a group A carcinogen (similar to asbestos, benzene, and radon), safety officers have become concerned about its connection to workplace illness. One report links secondhand smoke to inducing asthma and increasing the incidence of respiratory infections; it is also blamed for 3,000 lung cancer deaths per year.101 In its Guide to Workplace Smoking Policies, the EPA recommends that employers build enclosed, ventilated smoking lounges if they allow employees to smoke on the companies' premises. The EPA has strongly endorsed indoor air quality legislation that would require employers to take steps to avoid employee exposure to secondhand smoke.102 Employers respond to such initiatives by developing internal policies in anticipation of future compliance requirements. Many companies have taken the simplest approach to meeting indoor air quality recommendations by banning all indoor smoking. Currently, 80 percent of all employees work for companies that have a smoking policy.103 At least twenty-one states have preempted voluntary employer efforts by enacting laws regulating smoking in private workplaces.104 Other companies are implementing restrictions on smoking in anticipation of a proposed OSHA standard that would ban smoking in the workplace except in separately ventilated areas (much like the EPA has previously recommended). Remember that under the OSH Act, the "general duty" provision requires an employer to provide places of employment "free of recognized hazards that are causing or likely to cause death or serious physical harm to his employee."105

Work-related Injuries

Naturally, an injury sustained while at work is covered. For example, a warehouse employee who is struck and injured by a delivery truck while at work would be entitled to workers' compensation. If the same employee was struck and injured by a delivery truck in front of his home during nonwork time, he would not be eligible for the benefit. Usually, workers' compensation does not apply to injuries sustained during nonwork hours, at a location off the employer's premises, when work duties are not being performed, or while performing activities that are not in the course of employment.19 Example pg 306

Primary recording and reporting forms established by OSHA

OSHA Injury and Illness Log and Summary OSHA Form 300 OSHA Injury and Illness Incident Record OSHA Form 301 Both forms are for the employers' records and are not submitted to OSHA, but they must be available for inspections.

Compensable Injuries and Illnesses

One characteristic of all workers' compensation systems is that the employee is required only to demonstrate that the injury or illness was work related. The employee does not have to show that the employer's actions are responsible for the injury. The basic premise of workers' compensation laws is that the cost of work-related injuries should be assumed by the employer; consequently, providing for such coverage is considered part of the cost of doing business. Workers' compensation quickly evolved into a mandatory benefit program with the expenses associated with the insurance coverage borne by the employer.

OSHA Act created 3 federal agencies

One peculiar characteristic of the Occupational Safety and Health Act is that it created three federal agencies: one to enforce its provisions, one to review these enforcement actions, and one to conduct studies and research for developing standards. These agencies span two executive departments, the Department of Labor and the Department of Health and Human Services. The primary agency given the responsibility for administering and enforcing the Occupational Safety and Health Act is the Occupational Safety and Health Administration (OSHA). This agency was organized as a new division within the Department of Labor. It has the authority, through the secretary of labor, to promulgate standards, conduct inspections, and seek enforcement action (fines and/or injunctions) where there has been noncompliance. The Occupational Safety and Health Act also created the National Institute of Occupational Safety and Health (NIOSH), an occupational health research center. Through an unusual twist, this agency is actually organized as part of the Department of Health and Human Services rather than the Department of Labor. NIOSH studies various safety and health problems, conducts research for recommending safety and health standards to be adopted by OSHA, provides technical assistance to OSHA, and conducts training programs. The third agency provided by the passage of the Occupational Safety and Health Act is the Occupational Safety and Health Review Commission (OSHRC), a quasi-judicial body that serves to adjudicate challenged enforcement actions undertaken by OSHA. Like OSHA, the OSHRC is part of the Department of Labor. The OSHRC consists of three members appointed by the president of the United States for staggered six-year terms and is completely independent from OSHA. Penalties for violations based on OSHA recommendations are assessed by OSHRC. As with other federal agencies exercising quasi-judicial functions (such as the National Labor Relations Board), OSHRC decisions are appealed directly to the appropriate Federal Circuit Court of Appeals.

Medical benefits

Pay for 100% of medical costs for injured employee

Permanent disability

Permanent disability benefits are paid to workers whose injury or illness has so severely impaired them that they are unable to ever return to work. The method of determining the appropriate payment varies from state to state. Most operate within ranges in which benefits are paid for specific losses. For, example the Pennsylvania Workers' Compensation Act provides, "For the loss of a forearm, sixty-six and two-thirds per centum of wages during three hundred seventy weeks."28

History of workers comp

Pg 303

Workers' Compensation Benefits

Pg 311 Benefits Afforded Individuals with Compensation Injuries/Illnesses Under Worker's Compensation •Dependent survivors' death benefits •Payment for disability (temporary or permanent) •Payment for lost income •Payment for medical expenses •Rehabilitative assistance

State regulation of workplace safety

Pg 327

Challenging OSHA Citations

Should an employer decide to challenge either the citation, the time set for abatement, or the proposed penalty, he or she must do so within fifteen working days from the time the citation and proposed penalty are received.60 The employer is required to notify the director of the area OSHA office in writing. This written notification is called a "Notice of Contest." If the written Notice of Contest has been filed within the required fifteen working days, the OSHA area director forwards the challenged case to the OSHRC, who then assigns the case to an administrative law judge for hearing. Employer representatives and the affected employees have the right to participate in the hearings. The administrative law judge's determination may be submitted for further review by OSHRC upon the request of any party to the case. If the employer is still dissatisfied with the outcome, the OSHRC ruling may be appealed to the appropriate U.S. Court of Appeals. An employer may challenge the OSHA citation on a number of grounds. For one, the employer may not be an entity that the Occupational Safety and Health Act covers. The Act applies to all employers engaging in interstate commerce regardless of size.61 However, there are specific entities that have been excluded from the Occupational Safety and Health Act's definition of "employer." For example, federal (except the U.S. Postal Service), state, and local governments are specifically exempted from coverage.62 Businesses operating on an Indian reservation are also exempted.63 Barring an exemption claim, the employer may challenge the citation on the basis of the OSHA standard itself. In essence, the citation is not being challenged, but the standard upon which it is based is not appropriate. Challenges to OSHA standards will be discussed later in this chapter.

Sick building syndrome (SBS)

Sick building syndrome (SBS) is a term used to encompass a number of medical ailments associated with physical workplace settings.113 These are most often attributed to indoor air pollution, molds in ventilation systems, poor lighting, poor acoustics, poor ergonomics, and chemicals leaching from construction materials or furniture.114 The symptoms from such exposure fall into a broad range, from headaches to respiratory problems (see Figure 11.7). SBS has real implications for businesses as research has linked it to higher employee absenteeism and turnover, lower productivity, and lower job satisfaction.115 It is also a potential source of ADA complaints requesting accommodations,116 workers' compensation claims,117 and may result in litigation under state tort statues.118 Symptoms •Coughing •Dermatitis •Difficulty concentrating •Dizziness •Eye, nose, throat, and respiratory irritation •Fatigue •Headache •Muscle pain •Nausea •Sensitivity to odors

There is no uniform national program -- lots more info

State workers' compensation provisions differ from state to state with regard to procedural aspects, compensation provisions, and jobs covered. Pg 309

Temporary disability

Temporary disability payments are made in those instances in which the employee is, as its name implies, temporarily unable to return to the pre-injury job or one for which he or she is otherwise qualified, due to injury or health problems. Temporary disability benefits are the most common category of cash benefit. Temporary disability payments are designed to replace two-thirds of an employee's average weekly wage, up to a maximum dollar amount, which ever amount is less. The cap on maximum weekly temporary disability benefits in January 2012 ranged from $37 per week in Mississippi to $1,427 in Iowa.2

Remember,

The ADA requires an employer to keep employee records confidential and limit access to them. Additionally, any employee who is exposed to toxic materials or potentially harmful physical agents has a right to access monitoring records kept by the employer, material safety data sheets, and any other exposure records available.

Granting inspections

The OSH Act does provide some rights to employers during a workplace inspection. The OSH Act states that a CSHO must grant an employer the right to accompany a walk-around inspection. Pg 323

OSHA Inspections

The Occupational Safety and Health Act allows assigned OSHA compliance safety and health officers (CSHOs) to enter, inspect, and investigate an employer's workplace to determine compliance with the standards.88 The Act requires the CSHOs to conduct inspections during either regular working hours or other reasonable times. Compliance officers may question any employee, agent, employer, or owner privately during an inspection. All establishments covered by the Act are subject to inspections by OSHA compliance safety and health officers. States with their own occupational safety and health programs may conduct separate workplace inspections using their own qualified state compliance officers.89

OSHA

The Occupational Safety and Health Administration primarily establishes safety standards and conducts workplace inspections. The standards set by OSHA generally require that employers adopt certain practices, means, methods, or processes deemed to be reasonably necessary to protect workers on the job. The Occupational Safety and Health Act places an obligation on employers to become familiar with standards applicable to their organizations, to eliminate hazardous conditions to the extent possible, and to comply with the standards. The employees have the responsibility, under the Act, to comply with all rules and regulations that are applicable to their own actions and conduct in the workplace. Additionally, OSHA requires employers to post notices furnished by the agency in the employers' establishments and keep the notices current.50 The required notices inform employees of the protections and obligations provided for in the Act as well as provide contact information for assistance and information on specific safety and health standards. Notices are required to be posted in conspicuous places where other organization-related policies and communication to employees are customarily posted. Employers are expected to take reasonable steps to assure the notices are not altered, defaced, or covered by other material. Failure to comply with these posting requirements can result in a $7,000 fine.51

Abatement

The condition causing the violation has been corrected

Emergency standard

The key to the issuance of an emergency standard is the necessity to protect employees from a grave danger. After issuing an emergency temporary standard, the secretary of labor must set in motion the procedures for the transition of the emergency standard to a permanent standard, which must occur within six months of the emergency standard's publication.66 The secretary may bypass most of the established formalities and create temporary emergency standards when it is believed that workers are in grave danger from exposure to toxic substances or other newly discovered hazards.

Controlling Workers' Comp Costs

The obvious solution to controlling costs is to control the incidents of injury or illness in the workplace. This means creating safety programs and providing employee training to promote safe working behavior. The more emphasis that management places on safety awareness, the more safety conscious employees are likely to become. When injuries or illnesses do occur, the employer should get a medical assessment as quickly as possible. This information will be essential in determining whether the employee is no longer fit for employment. It can also be used to determine whether the injured employee can be reassigned to less strenuous work. If the employee can continue employment in another position, he or she would not be entitled to disability benefits. Similarly, the employer should attempt to get a rehabilitation assessment of the injured or ill employee. Again, this could be used to assist in determining the probability of the employee returning to work and/or being reassigned to other work. It is recommended that this assessment be performed within thirty days after the injury if it is to be successful.30 One major problem with workers' compensation is its potential for fraud. Some employees will misrepresent the facts surrounding an injury in order to gain benefits for which they would otherwise be ineligible. For example, a worker injures his knee dirt-bike racing, but later claims that it was incurred at work in order to draw workers' comp payments during his rehabilitation. Some employees may suffer from no injury or illness and intentionally defraud the system.31 Because there is so much abuse in the system—perhaps as many as 10 percent of all workers' compensation claims32—employers should investigate all employees who are suspected of submitting false claims and take action against those found to have submitted false claims. Since such employees are engaging in an unlawful activity (fraud), some courts have upheld surveillance of employees off company premises.

Ergonomics

The science of adapting the job to the biomechanical needs of the worker. In some cases, WMSD can be prevented by easy and inexpensive modifications to the workplace. Typical adjustments include changing the height of working surfaces, varying tasks for workers, encouraging short rest breaks with physical exercise, and decreasing the number and weight of items workers must lift—job design issues. Furnishing equipment to assist workers with lifting, and providing specially designed equipment, such as ergonomically developed computer keyboards, are two simple examples of how employers may reduce risks.

Permanent standards

The second type, permanent standards, are either newly created or revised from the original interim standards. An advisory committee may be appointed periodically to assist in the issuance of permanent standards. Permanent standards are issued on an as-needed basis or evolve from emergency standards. In either case, permanent standards must follow one process before becoming effective.

Mandatory participation

The vast majority of states have mandatory laws in which all employers must carry workers' compensation insurance and comply with the state law by providing specific benefits. Covered employers are afforded no choice, and failure to participate in the program is a violation of the law.

Right to refuse to work

This right to refuse to work in unsafe conditions (not connected with the normal nature of the work) was established in Whirlpool Corp. v. Marshall. In this decision, the Supreme Court held that an employee's refusal to perform an assigned task due to a reasonable fear of death or serious injury is a valid right afforded by Occupational Safety and Health Act.98 The key word here is reasonable. An employee working in an office where the temperature is 50°F because the heating system is not working would be hard-pressed to prove that he or she had a reasonable fear of death or serious injury. On the other hand, an employee doing strenuous work on an assembly line where the temperature is 120°F may easily prove a reasonable fear for personal safety or health.

As the U.S. became more industrialized...

Unsafe and unhealthy working conditions spread.

Workplace violence

While many organizations now have some formal workplace violence policy, a joint survey conducted by the Risk and Insurance Management Society and the American Society of Safety Engineers finds that most have not conducted assessments of the risks for actual workplace violence incidents.111 Some HR responses to reducing workplace violence include limiting access to facilities, workplace surveillance, employee background checks, and open-door policies.

Criticisms of Workers' Compensation

Workers' compensation laws are considered to generally provide minimal levels of compensation; the emphasis here is on minimal. Benefits have failed to keep pace with inflation in many cases, and are frequently regarded as inadequate compensation for employees' injuries and disabilities. Increasingly, injured employees are bringing actions in the courts instead of filing claims under workers' compensation statutes, thus undermining the exclusivity principle. In some instances, workers are filing workers' compensation claims and filing suits against their employers.