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Employee Rights under the OSH Act

Employers should always remember that the main reason for OSHA regulations is the health and safety of their workers. The OSH Act provides employees with the right to the following:

  • Review copies of appropriate OSHA standards, rules, regulations, and requirements that the employer should have available at the workplace;
  • Request information from the employer on safety and health hazards, precautions, and emergency procedures;
  • Receive adequate training and information regarding workplace health and safety;
  • Request that OSHA investigate any concerns regarding hazardous conditions or violations of standards that exist in the workplace;
  • Have their name withheld from the employer if filing a complaint;
  • Be advised of OSHA actions regarding their complaint and have an informal review of any decision not to inspect or not to issue a citation;
  • Have their authorized employee representative accompany the OSHA compliance officer during an inspection;
  • Respond to questions from the OSHA compliance officer;
  • Observe any monitoring or measuring of hazardous materials and see any related monitoring or medical records;
  • Review the Log and Summary of Work-Related Injuries and Illnesses records;
  • Request a closing discussion following an inspection;
  • Object to the abatement period set in a citation issued to the employer;
  • Participate in hearings conducted by the Occupational Safety and Health Review Commission;
  • Be notified by their employer if a variance is requested, and testify at a variance hearing and appeal the final decision; and
  • Submit information or comments to OSHA on the issuance, modification, or revocation of OSHA standards and request.

Complying with OSHA Requirements

Complying with OSHA standards requires employers to partake in a variety of activities, including the following:

  • Installing physical safeguards or engineering controls, such as guardrails or fire extinguishers
  • Meeting safety requirements for work practices through employee training, company policies, and job supervision
  • Monitoring for air contaminants
  • Providing employees with personal protective equipment
  • Conducting equipment tests and inspections
  • Accident, illness and injury recordkeeping and postings
  • Determining when hazard warnings are required

For the health and wellbeing of employees and for the betterment of their business, every employer should strive to maintain a safe workplace. To this end, private employers must adhere to industry-specific requirements and guidelines known collectively as OSHA standards).

OSHA’s standards can be grouped into four major categories: agriculture, construction, general industry, and maritime (which includes shipbuilding, marine terminals, and longshoring). To ensure compliance, employers must know the standards that are applicable to their own business and industry.

There are hundreds of standards included within OSHA’s standard industrial classifications, which regulate safety of work areas and cover precautions.

General industry standards:

Employers covered under the OSH Act are required to follow all general industry standards that apply to their organization. In situations in which industry standards and general standards address identical hazards, industry standards take precedence.

OSHA safety regulations for general industry cover many specific activities, areas, and conditions. OSHA standards that apply to most general industry employers include:

  • Hazard Communication
  • Emergency Action Plans
  • Fire Safety
  • Exit Routes
  • Walking/Working Surfaces
  • Medical and First Aid

Other common OSHA standards include:

  • Personal Protective Equipment
  • Machine Guarding
  • Lockout/Tagout
  • Electrical Hazards
  • Noise
  • Confined Spaces
  • Forklifts
  • Bloodborne Pathogens

Note: These lists aren’t comprehensive. There are more than 100 general industry standards.

Determining Compliance:

In order for employers to determine if their workplace conforms to general safety standards imposed by OSHA, they should follow these four steps:

  • Identify which standards apply to your workplace. This can be done by ordering a copy of the standards, visiting OSHA’s website, and/or contacting the nearest OSHA office for assistance. OSHA small business consultants will help employers identify standards applicable to their industries.
  • Thoroughly read and review the introduction for every standard that is potentially applicable to your workplace. Most employers need to pay particular attention to the following standards that govern general office worksites: walking and working surface standards; exit routes, emergency action plans and fire prevention plan standards; occupational health and environmental control standards; fire protection standards; and material handling and storage standards.
  • Implement the requirements that apply to your company’s function or operation. Compliance may involve meeting equipment design specification requirements, training employees, and establishing required practices as well as prohibited practices. It may also involve generating records, certifying compliance, or documenting required practices.
  • Be aware that any occupational hazard not covered by an industry-specific standard may be covered by a general industry standard or by the general duty clause.

If an employer needs financial help in complying with the OSHA standards, the OSH Act has been amended by the Small Business Act to authorize loans, either directly or in cooperation with banks or other lending institutions. These loans are intended to assist in “effecting additions to or alteration in the equipment, facilities, or methods of operation of such businesses” to comply with OSHA standards, or those adopted by a state pursuant to an approved state plan.

The General Duty Clause

The General Duty Clause (29 USC 654) requires every company to provide all employees with a workplace free from recognized hazards that are causing, or are likely to cause, death or serious physical harm. This obligation is open-ended, because it is designed to protect employees in situations where there are no established standards.

An employer can be found to be in violation of the general duty clause if it can be shown that all of the following occurred:

  • A hazard existed;
  • The hazard was likely to cause death or serious physical harm;
  • The company had knowledge of the hazard, or should have had knowledge because the hazard had been recognized by the company itself, the industry, or common sense;
  • The hazard was foreseeable; and
  • Workers were exposed to the hazard.

Inspections & Violations:

OSHA ensures compliance with applicable health and safety laws by performing periodic inspections. OSHA inspectors typically visit a worksite in response to an accident or a complaint. If an accident occurs and the employer is found to be in violation of applicable safety rules, the consequences can be serious: legal fees, medical expenses, and/or government fines. Because the costs of non-compliance can be staggering, employers should be proactive in understanding and enforcing applicable safety standards.

OSHA Reporting, Recordkeeping, Notice, and Posting Requirements

OSHA requires employers to comply with established reporting and recordkeeping requirements. Compliance with these requirements is critical to help avoid potential violations.


Accident Reporting:

Currently, all work-related fatalities must be reported to OSHA within 8 hours. Additionally, all work-related in-patient hospitalizations, amputations, and losses of an eye must be reported within 24 hours.

To report, employers may either:

  1. Call 1-800-321-OSHA (6742).
  2. Call or visit the nearest area OSHA office during normal business hours.

OSHA is also developing a portal so that employers may notify OSHA electronically.


Recordkeeping:

OSHA regulations require employers to routinely keep records of work-related injuries and illnesses using the OSHA 300 Log. However, employers with 10 or fewer employees and employers in certain low-hazard industries are exempt from these recordkeeping requirements.

In 2014, OSHA updated the list of low-hazard industries that are covered by the exemption. Under the new rule, 25 industries will be newly required to comply with OSHA’s recordkeeping rules. Employers with 10 or fewer employees continue to be exempt.

Note: While certain employers are exempt from OSHA’s recordkeeping requirements, all employers must report work-related fatalities, in-patient hospitalizations, amputations, and losses of an eye to OSHA.

OSHA requires that covered employers keep records of occupational injuries and illnesses for each work establishment. Occupational injuries must be recorded if they result in the following:

  • Death;
  • One or more lost workdays;
  • Restriction of work or motion;
  • Loss of consciousness;
  • Transfer to another job;
  • Medical treatment beyond first aid; and
  • Significant work-related injuries or illnesses, diagnoses by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.

Covered employers must maintain the following records of job-related accidents and injuries:

OSHA Form 300.This is an injury and illness log, in which employers are required to briefly describe each recordable injury and illness. Only employers that are requested to do so should submit this form to OSHA.

OSHA Form 300A. This is a summary of work-related injuries and illnesses, including a list of injuries and illnesses that were recorded in the OSHA Form 300 log during the previous calendar year. This form must be prominently posted in the workplace from February to April each year, even if there are no illnesses or injuries reported. Failure to follow these posting requirements may result in a citation during an OSHA inspection.

Both the OSHA Form 300 and the OSHA Form 300A are injury and illness logs that require employers to:

  • Report each injury or illness, other than minor first aid treatment that does not involve medical treatment, loss of consciousness, restriction of work or motion, or job transfer.
  • Provide a summary of the previous year’s injury and illness statistics.
  • Keep the completed Form 300 and Form 300A on file at the worksite where they will be available to employees and OSHA compliance officers upon request.
  • Keep each form for five years following the year for which it pertains.

OSHA Form 301: This is an injury and illness incident report that includes detailed information about each incident relating to safety and health. This individual accident report must be completed within seven (7) calendar days after the employer receives information that a recordable work-related injury or illness has occurred.

 


Electronic Submission Required Beginning in 2017:

OSHA published a final rule that requires employers in certain industries to submit injury and illness data to the agency electronically on an annual basis. The electronic submission requirements are as follows:

Employer Size Forms Required to Be Filed Electronically Deadlines
20 to 249 employees and in one of these industries OSHA Form 300A July 1, 2017 (Update: OSHA has delayed this compliance date and has proposed moving it to December 1, 2017)
250 or more employees OSHA Forms 300, 300A, and 301 July 1, 2017 (300A) (Update: OSHA has delayed this compliance date and has proposed moving it to December 1, 2017)

July 1, 2018 (300, 300A, 301)


Medical Records and Exposure Records:

Employers must also retain employee medical records and employee exposure records for at least 30 years after the employee is terminated.

Employee medical records do not include records concerning health insurance claims if maintained separately from the employer’s medical program and its records, and are not accessible to the employer by employee name or other direct personal identifier (e.g., Social Security Number).

Employee exposure records include:

  • Records related to workplace programs for monitoring or measuring of a toxic substance;
  • Monitoring results that directly assess the absorption of a toxic substance by the body (e.g., the level of a chemical in the blood);
  • Safety data sheets indicating that the material may pose a hazard to human health; or
  • In the absence of the above, a chemical inventory or any other record which reveals where and when a toxic substance was used and the identity (e.g., chemical, common, or trade name) of a toxic substance.

Notice:

In 2016, OSHA published a final rule that makes changes to requirements for how employers must inform employees about their rights and responsibilities under OSHA. The rule also clarifies employees’ rights to access injury and illness records. The final rule requires covered employers to inform employees of the following:

  • The employer’s procedures for reporting work-related injuries and illnesses. Such procedures cannot deter or discourage employees from reporting;*
  • That employees have the right to report work-related injuries and illnesses;
  • That employers are prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses.

This requirement can be satisfied by posting the already-required OSHA workplace poster mentioned in the Posting Requirementssection below.

* Since safety incentive policies and post-accident drug testing could discourage employees from reporting injuries and illness, OSHA says that employers should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.

Employee Access to Injury and Illness Records:

The final rule states that:

  • When an authorized party asks for copies of your current or stored OSHA 300 for an establishment the employee or former employee has worked in, the employer must provide a copy by the end of the next business day.
  • When an employee, former employee, or personal representative asks for a copy of the OSHA 301 covering a specific case, the employer must provide it by the end of the next business day.
  • When an authorized employee representative asks for copies of the OSHA 301 for an establishment where the agent represents employees under a collective bargaining agreement, the employer must provide copies within seven calendar days. Employers are only permitted to give the authorized employee representative information from the OSHA 301 section titled “Tell us about the case.” Employers must remove all other information.
  • Employers may not charge for copies of the records the first time they are provided. However, if a designated individual asks for additional copies, employers may assess a reasonable copying fee.


Posting Requirements:

In addition to the OSHA Form 300A posting requirement between February and April of each calendar year, all employers subject to the OSH Act are required to display the Federal “Job Safety and Health: It’s the Law” poster.

In addition, Safety Data Sheets (SDS) must be available and displayed prominently in the workplace.