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An Overview of OSHA Law

1. Background and General Objective

Documentary evidence showed that leading up to 1969 and 1970, more than 14,500 American workers were killed annually on or in connection with their jobs, and more than 2,200,000 were disabled each year as a result of work related accidents. During this time the enactment of health and safety laws had been left solely to the states. Many states, however, have enacted few laws and failed to appropriate the proper funds to enforce the laws. As the American - worker continued to suffer crippling accidents and death at an accelerated rate, the need for federal legislation became evident.

In 1970 the Occupational Safety and Health Act ("OSHA") was signed into law. While individual states may still develop and enforce their own health and safety programs, these programs must be at least as effective as the federal program set forth in the Act. The purpose of OSHA is to assure, as far as possible, safe and healthy working conditions for the American workers. To accomplish this purpose, employers are required to comply with two guidelines: General Standards and the General Duty Clause

A. General Standards

OSHA has adopted a large number of federal safety and health standards divided into various categories. These standards are measures of safety formulated to reduce employees exposure to hazardous conditions. Some standards govern all worksites generally, and other standards address specific industries. The Act requires employer compliance with these standards. Although employers may be allowed input on which standards are adopted and can contest standards believed to be unfair, once the standard is adopted and published by OSHA, noncompliance by an employer is grounds for enforcement.

B. General Duty Clause

In addition to adhering to the general standards set forth by OSHA, employers are also required to comply with the general duty clause, also known as the "Catchall Standard". The clause requires that every employer 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. " The clause is intended to cover serious hazards for which there are no specific standards in place, so that employees are always entitled to a relatively safe workplace. Noncompliance by an employer is also grounds for enforcement.

11. Rights of Employees

In order to accomplish the purpose of the OSHA, employees are afforded certain rights. The rights that follow are in place so that the employee has an opportunity to make sure that their workplace is free from hazards, and also to help facilitate enforcement of the standards set forth in the Act.

1. The OSHA Poster - Employees have a right to know of their protections under OSHA. A notice outlining the protections and obligations under OSHA must be posted in the workplace by every employer. The notice must be posted in a conspicuous place where employee notices are usually posted.

2. Records

    a. OSHA Form No. 200 - OSHA requires all private- sector employers to maintain a log and summary (OSHA form no. 200) of occupational injuries and illnesses for each of their establishment. (Exempted are small employers with no more than ten employees.) This log and summary must be made available for inspection and copying by current and former employees or their representatives. Refusal to provide access to this log is a violation of 1904.7 of the Act.
    b. Medical and exposure records - Certain standards promulgated by OSHA, requires employers to monitor and measure employee exposure in certain 'instances, and to keep a record for the term of employment plus thirty years. Other standards require periodic medical examinations of employees, with records to be kept by the employer.

When an employer is required to maintain exposure and medical records,1910.1020 provides employees and their representatives with the right to access and copy those records.

3. Inspections - One of the most important rights provided to the employee is the right to request and be involved in inspections. If an employee believes that an OSHA violation exists in the workplace, a request may be submitted to an OSHA compliance officer or Area Director. Once it has been determined that there are reasonable grounds to believe that a violation or imminent danger exists, an inspection will be conducted. Employees also have the right to point out violations during an inspection. A representative of the employees must be given the opportunity to accompany the OSHA compliance officer during the inspection. (The Act does not however, require compensation for employees accompanying an inspection.) The employee also has the right to access and copy inspection results.

4. 11c Protection - The employee who exercises his right to request inspections or records, or to point out violations, has the right to be protected from retaliatory discrimination or termination. 11(c) of the Act provides that employees can not be discharged or otherwise discriminated against for filing complaints or instituting proceedings under the Act. An employee who believes that he has received retaliatory treatment as a result of exercising the rights accorded in the Act has the right to file a complaint alleging discrimination within 30 days of the violation.

5. Refusal to Work - 1977.12 gives employees the right to refuse in good faith to expose himself to a hazardous workplace condition. If the hazardous condition is such that a reasonable person would conclude that there was a real danger of death or serious illness, and that there is insufficient time due to the urgency of the situation to eliminate the danger through enforcement channels.

When an employer is required to maintain exposure and medical records,1910.1020 provides employees and their representatives with the right to access and copy those records.

III. Procedures

  1. Complaint For An Inspection

Employees or their representatives may file a complaint requesting an OSHA inspection when they believe that a violation of a safety or health standard or an imminent danger exists in the workplace.

1) A formal complaint must be in writing, signed and set forth the grounds for the complaint with "reasonable particularity ".

2) The employer will receive a copy of the complaint, but the employee may request that his name be deleted from the employer's copy.

3) If it is determined that there are reasonable grounds to believe that a violation -or imminent danger exists-, an investigation will be conducted as soon as possible.

4) The OSHA agency may determine that an inspection was not warranted, and the complaintant will be notified. The complaintant may request a hearing on the decision.

5) Nonformal complaints, including oral complaints and unsigned written complaints may be made by employees during inspections to the inspecting compliance officer. (However formal hearings are not granted as a result of a nonformal complaint.)

6) If as a result of the inspection, the agency believes that there is an OSHA violation, a citation must be issued to the employer. The citation must be issued within six (6) months of the occurance of the violation.

B. Complaint For An 11c Violation - If an employee believes that he has been discharged or discriminated against as a result of exercising his rights under OSHA, he may file a complaint with the OSHA agency.

I) The employee may file a complaint in writing to the OSHA agency within tWEty (30) days of the alleged violation. The complaint should set out with particularity the allegations of the violation.

2) An 11c violation is established when it is shown that the employee's engagement in a protected activity (for example, requesting an inspection) was a substantial reason for the employer's discriminatory actions.

3) If the OSHA agency determines that an 11c violation has occurred, an action will be brought in federal district court to restrain the violation and obtain other appropriate relief. (However if the agency determines that no violation has occurred, the employee may not sue the employer in a private action.)

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