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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
- Electrical Hazards
- Confined Spaces
- Bloodborne Pathogens
Note: These lists aren’t comprehensive. There are more than 100 general industry standards.
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.
Hazard Communication: Employees’ ‘Right to Know’
The purpose of OSHA’s Hazard Communication Standard (HCS), commonly known as worker “Right to Know” is to ensure that the hazards of all chemicals produced or imported are evaluated and that information is transmitted to employers and employees.
The HCS requires chemical manufacturers and importers to evaluate the hazards of the chemicals they produce or import and prepare labels and safety data sheets (formerly known as material safety data sheets or MSDS) to convey hazard information to their downstream customers (e.g. employers). Employers with hazardous chemicals must have a written hazard communication plan, appropriate chemical labels and safety data sheets (SDS), and training for their exposed workers.
HCS Final Rule:
In March 2012, OSHA published a final rule revising the HCS. The rule changes how chemical hazards must be communicated in labels and SDS and requires employers to train their employees on the new labels and SDS.
The final rule makes changes to the HCS to align it with the United Nations’ global chemical labeling system (GHS). The GHS is an international approach to hazard communication, providing agreed criteria for classification of chemical hazards, and a standardized approach to label elements and safety data sheets.
The changes that result from the final rule include, but are not limited to:
- Revised criteria for classification of chemical hazards;
- Revised labeling provisions that include requirements for the use of standardized signal words, pictograms, hazard statements, and precautionary statements;
- Changes in terminology;
- A specified 16-section format for SDS; and
- Requirements for employee training on labels and SDS.
Safety Data Sheets (SDS):
The SDS is a document prepared by the manufacturer of a chemical that describes the physical and chemical properties, physical and health hazards, routes of exposure, precautions for safe handling and use, emergency and first-aid procedures, and protective measures. The most recent SDS for each hazardous chemical must be kept on file and be readily accessible to employees in their work area.
Effective June 1, 2015, the information required to be included in SDS must be presented in a specified format and sequence. This format and sequence are listed below:
- Section 1, Identification includes product identifier; manufacturer or distributor name, address, phone number; emergency phone number; recommended use; restrictions on use.
- Section 2, Hazard(s) identification includes all hazards regarding the chemical; required label elements.
- Section 3, Composition/information on ingredients includes information on chemical ingredients; trade secret claims.
- Section 4, First-aid measures includes important symptoms/effects, acute, delayed; required treatment.
- Section 5, Fire-fighting measures lists suitable extinguishing techniques, equipment; chemical hazards from fire.
- Section 6, Accidental release measures lists emergency procedures; protective equipment; proper methods of containment and cleanup.
- Section 7, Handling and storage lists precautions for safe handling and storage, including incompatibilities.
- Section 8, Exposure controls/personal protection lists OSHA’s Permissible Exposure Limits (PELs); Threshold Limit Values (TLVs); appropriate engineering controls; personal protective equipment (PPE).
- Section 9, Physical and chemical properties lists the chemical’s characteristics.
- Section 10, Stability and reactivity lists chemical stability and possibility of hazardous reactions.
- Section 11, Toxicological information includes routes of exposure; related symptoms, acute and chronic effects; numerical measures of toxicity.
- Section 12, Ecological information
- Section 13, Disposal considerations
- Section 14, Transport information
- Section 15, Regulatory information
- Section 16, Other information, includes the date of preparation or last revision.
Sections 12-15 may be included in the SDS, but are not required by OSHA.
All hazardous chemical containers must be labeled. This labeling must be easily readable and prominently displayed on the container. The purpose of such labeling is to provide employees with an immediate warning of hazardous chemicals and remind them that more detailed information is available.
Effective June 1, 2015, all hazardous chemical labels will be required to have pictograms, a signal word, hazard and precautionary statements, the product identifier, and supplier identification. These requirements are detailed below:
- Pictogram: A symbol plus other graphic elements, such as a border, background pattern, or color that is intended to convey specific information about the hazards of a chemical. Each pictogram consists of a different symbol on a white background within a red square frame set on a point (i.e. a red diamond). There are eight pictograms required under the HCS.
- Signal words: A single word used to indicate the relative level of severity of hazard and alert the reader to a potential hazard on the label. The signal words used are “danger” and “warning.” “Danger” is used for the more severe hazards, while “warning” is used for less severe hazards.
- Hazard statement: A statement assigned to a hazard class and category that describes the nature of the hazard(s) of a chemical, including, where appropriate, the degree of hazard.
- Precautionary statement: A phrase that describes recommended measures to be taken to minimize or prevent adverse effects resulting from exposure to a hazardous chemical, or improper storage or handling of a hazardous chemical.
Employers have the option to label workplace containers either with the same label that would be on shipped containers for the chemical or with label alternatives (such as the National Fire Protection Association 704 Hazard Rating and the Hazardous Material Information System) as long as the labels meet the requirements of, and the information is consistent with, the revised HCS (e.g., no conflicting hazard warnings or pictograms).
Employers must provide employees with effective training on hazardous chemicals in their work area at the time of their initial assignment and whenever a new chemical hazard is introduced into their work area. Training must include:
- Methods and observations that may be used to detect the presence or release of a hazardous chemical in the work area (such as monitoring conducted by the employer, continuous monitoring devices, visual appearance or odor of hazardous chemicals when being released, etc.);
- The physical and health hazards of the chemicals in the work area;
- The measures employees can take to protect themselves from these hazards, including specific procedures the employer has implemented to protect employees from exposure to hazardous chemicals, such as appropriate work practices, emergency procedures, and personal protective equipment to be used; and
- The details of the hazard communication program developed by the employer, including an explanation of the labeling system and the SDS, and how employees can obtain and use the appropriate hazard information.
Also, under the final rule, training on the new label elements and SDS must be completed by December 1, 2013.
Employers must allow employees and former employees to see all records, including medical reports, of worker exposure to toxic substances and harmful agents within fifteen (15) days of the written request. OSHA representatives must be given immediate access to exposure records. Employers are required to retain records of exposure for thirty (30) years.
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.
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:
- Call 1-800-321-OSHA (6742).
- 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.
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:
- 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.
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.
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.
OSHA Violations and Penalties
OSHA violations and penalties typically follow when OSHA compliance officers find that employers violated one or more of the OSH Act’s requirements. Citations are issued and penalties are determined based on the size of the employer as well as the employer’s history of offense.
If after an inspection, an OSHA compliance officer believes that OSHA requirements have been violated, the officer issues a citation. Citations charge the company with a particular violation, set a time for abatement or correction of the condition, notify the company of its proposed penalties, and provide information regarding the procedure for contesting the charges, should the company elect to do so.
Citations are issued only to employers, regardless of whether the violation may have been caused or committed by an employee. When an employer receives a citation, he or she has the option of correcting the violations and paying the penalties, negotiating with OSHA to have the citation or penalties amended or withdrawn, or contesting the citation before the OSHA Review Commission. It is OSHA’s policy to attempt to settle small cases, reserving litigation for the most significant infractions. In the meantime, employers must post a copy of each citation at, or near, the place a violation occurred for three (3) days or until the violation is abated, whichever is longer.
Upon the employer’s request, the area OSHA director will hold an informal conference. The purpose of the conference is to discuss any issues raised by an inspection, citation, notice of proposed penalty, or notice of intention to contest, in the hope of resolving the matter without litigation. To reach settlement agreement, the area director has the authority to modify penalties, abatement actions and dates, and characterizations of violations (i.e.: willful, serious, etc.). If no settlement can be made, the administrative litigation process will begin.
If an employer chooses to agree with the citation and notification of penalty, compliance with abatement requirements and the proposed penalty set by the OSHA officer must be met within the stated period found on the citation. Extensions for compliance, however, may be requested through a petition.
If the employer decides to contest the citation, it must do so in writing within 15 business days following notification. A letter to contest a citation, also known as a “Notice of Contest,” must include the cited regulation that the employer was alleged to have violated, the proposed penalty, and the compliance deadline given by the OSHA officer. There is no special form for contesting a citation and no specified language that must be used. It is important to inform OSHA of each part of the citation that is contested. Any relevant part that is not contested will become final after the 15-day period has ended.
There are differing levels of penalties depending upon the nature of the violation, the employer’s size, as well as the employer’s history of offense. The violations as well as their associated penalties are described below:
- Other-Than-Serious Violation: This type of violation is one in which there is a direct relationship between job safety and health; however, the violation probably will not cause death or serious physical harm. OSHA may assess a penalty up to $7,000 for each violation.
- Serious Violation: There is a substantial probability that death or serious physical harm could result when serious violations have occurred. OSHA assesses the up to $7,000, depending on the gravity of the violation.
- Willful Violation: When willful violations occur, the employer intentionally and knowingly was aware that a hazardous condition existed, that the condition violates a standard or other obligation of the OSH Act, and makes no reasonable effort to correct it. In this case, OSHA may propose penalties of up to $70,000 with a minimum penalty of $5,000.
- Repeated Violation: This type of violation occurs if upon re-inspection a substantially similar violation is found and the original citation has become a final order. Repeat violations can bring a fine or up to $70,000.
- Failure to Abate: Failure to correct a prior violation may bring a civil penalty of up to $7,000 for each day the violation continues beyond the prescribed abatement date. OSHA may also issue citations and proposed penalties for falsifying records, reports, or applications; violating posting requirements; or physically or verbally resisting a compliance officer in the performance of duties.
OSHA may also increase or decrease penalties based on several factors, such as:
- History Reduction. An employer who has been inspected by OSHA within the previous five years and has not been issued any serious, willful, repeat, or failure-to-abate citations will receive a 10 percent reduction for history.
- History Increase. An employer that has been cited by OSHA for any high gravity serious, willful, repeat, or failure-to-abate violation within the previous five years will receive a 10 percent increase in their penalty, up to the statutory maximum.
- Repeat Violations. The time period for considering the classification of repeated violations is five years.
- Severe Violator Enforcement Program (SVEP). At the discretion of the OSHA Area Director, high gravity serious violations related to standards and hazards identified in the SVEP may be cited as separate violations, with individual proposed penalties.
- Gravity-Based Penalty (GBP). The gravity of a violation is the primary consideration in calculating penalties and is established by assessing the severity of the injury/illness that could result from a hazard and the probability that an injury or illness could occur. OSHA has adopted a gravity-based penalty structure for serious citations that ranges from $3,000 to $7,000.
- Size Reduction. OSHA allows for a penalty reduction between 10 and 40 percent for employers with fewer than 250 employees. No size reduction is applied for employers with 251 or more employees.
- Good Faith. A penalty reduction is permitted in recognition of an employer’s effort to implement an effective workplace safety and health program. Employers must have a safety and health program in place to get any good faith reduction. Good faith reductions are not allowed in the cases of high gravity serious, willful, repeat, or failure-to-abate violations. The 15% Quick-Fix reduction is also available to encourage employers to immediately abate hazards identified during inspections.