OSHA intro Flashcards
Congress’s purpose in creating OSHA
[background]
In summary, the Act seeks to assure safe and healthy working conditions for working men and women; by authorizing enforcement of the standards developed under the Act; by assisting and encouraging the States in their efforts to assure safe and healthful working conditions; by providing for research, information, education, and training in the field of occupational safety and health; and for other purposes.
Covered employers
[background]
- Applies to most private employers and their employees
- Under DOL regulations, an employer with 10 or fewer employees and good safety records are exempt from regular inspections and have reduced record keeping responsibilities
- Does not apply to public employers and employees. But, requires federal agency heads to establish safety and health programs that are consistent with the Act.
- States are permitted to create their own plans that apply to state and local employees. Sec. 667, 672
State Regulation of Safety and Health
[background]
- OSHA provisions do not apply to state and local governments in their role as employers. Section 3(5)
- Allows state regulation of safety and health standards not covered by the Act. Otherwise, OSHA preempts all safety and health activities in which a federal standard has been issued
- OSHA does not preempt state worker’s compensation law.
- Allows a state to seek permission from the Secretary of Labor to assume responsibility for enforcing federal occupational safety and health regulations. If the Secretary of Labor approves a state’s plan under OSHA, then OSHA funds up to 50 percent of the program’s operating costs.
2 duties employers must comply with
[main substantive provisions of OSHA]
- General Duty Clause - requires employers to keep their place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm to employees
- Employers must comply with specific promulgated OSHA standards. There are three basic schemes.
General Duty Clause
[main substantive provisions of OSHA]
- Sometimes referred to as the “catchall” provision. It applies ONLY when there is no specific standard issued by OSHA on the hazard
- It also is a recognition by Congress that it would be impossible to promulgate a standard with every conceivable workplace hazard.
- Thus, the Act imposes a “general duty” on covered employers to provide a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees
The general rule is that OSHA will issue a citation under this provision ONLY IF no specific standard applies
Elements required to establish a violation of the general duty clause
[main substantive provisions of OSHA]
- The employer failed to furnish a workplace free of a hazard, and its employees were exposed to that hazard
- The hazard was recognized
- The hazard was causing, or was likely to cause, death or serious physical harm
- A feasible method existed to correct or materially reduce the hazard
3 basic schemes employers are required to comply with for promulgated OSHA standards
[main substantive provisions of OSHA]
- Interim Standards – Sec. 6(a)
- Emergency Temporary Standards – Sec. 6(c)
- Permanent Standards – Sec. 6(b)
Interim Standards
[main substantive provisions of OSHA]
- These constitute the bulk of the standards that are currently in effect today
- The Act authorized the Secretary to use these interim standards during the first two years of the Act’s enactment. The provision permitting interim standards – Sec. 6(a) – allowed the Secretary of Labor to promulgate standards without following the normal procedures required for formal rules
- The purpose was to implement workplace safety protections much more quickly than would occur under the formal rulemaking process. The Act indicates that they will continue to be effective until the Secretary of Labor promulgates a formal rule revising or revoking an existing standard. There is a good deal of controversy because the Secretary of Labor promulgated so MANY and then has not revised or revoked many of them.
Emergency Temporary Standards
[main substantive provisions of OSHA]
- The Act gives the Secretary of Labor the authority to issue an emergency temporary standard under a streamlined process. It is effective upon publication in the Federal Register, without the necessity of hearings or a period of receiving comment.
- The Secretary must establish two requirements for the issuance of an ETS:
a. 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
b. That such emergency standard is necessary to protect employees from such danger - Note: the Secretary has only issued 9 standards under this provision and only three of them went into effect without being challenged
- Emergency Temporary Standards expire in 6 months
Permanent Standards
[main substantive provisions of OSHA]
- Congress intended permanent standards to be the Secretary’s primary means of enforcing OSHA. Over the course of the 50 years since the statute’s enactment, OSHA, however, has issued fewer than 100 permanent standards. This is partially due to the extensive nature of the procedures required to promulgate a permanent standard. They are listed on pages 1009-1010.
- The primary issue surrounding the validity of OSHA’s permanent standards: Has OSHA sufficiently justified the standard in terms of benefits to employees’ health, feasibility, and costs?
4 substantive criteria that OSHA has used when creating standards
[main substantive provisions of OSHA]
Secretary of Labor bears the burden in justifying the adoption of a new, permanent standard and it relies on one or more of these criteria to do so:
- Technological feasibility;
- Economic feasibility;
- Benefits to workers’ health or safety; and
- Cost-benefit analysis
Also, notice that there is an inherent conflict sometimes with the third and fourth criteria. In simplest terms, the safest measures are often the most expensive.
4 categories of inspections according to OSHA’s priority
[inspections]
.
- Imminent Danger: An imminent danger is any condition where there is reasonable certainty that a danger exists that can be expected to cause death or serious physical harm immediately, or before the danger can be eliminated through normal enforcement procedures.
- Catastrophes and Fatal Accidents: Any accident resulting in the death or hospitalization of 3 or more employees. Employers must report any death or hospitalization within 8 hours to OSHA.
- Complaints and Referrals: Third priority is given to employee complains of alleged violation of standards or of unsafe or unhealthful working conditions. (Also included in this category are serious referrals of unsafe or unhealthful working conditions from other sources, such as local or state agencies or departments.)
- Programmed Inspections: Next in priority are programmed or planned, inspections aimed at specific high-hazard industries, occupations or health substances. Industries are selected for inspection on the basis of factors such as the death, injury and illness incidence rates, and employee exposure to toxic substances.
Employee’s rights regarding inspections
[inspections]
The Act gives each employee the right to request and OSHA inspection when the employee feels he or she is in imminent danger from a hazard or when he or she feels that there is a violation of an OSHA standard that threatens physical harm. Just as in situations of imminent danger, the employee’s name will be withheld from the employer, if the employee so requests
Inspection process
[inspections]
Under the Act, “upon presenting appropriate credentials to the owner, operator or agent in charge,” an OSHA compliance officer is authorized to:
- Enter without delay and at reasonable times any factory, plant, establishment, construction site or other areas, workplace, or environment where work is performed by an employee of an employer; and to
- Inspect and investigate during regular working hours, and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment and materials therein, and to question privately any such employer, owner, operator, agent or employee
Advance notice
[inspections]
Inspections generally are conducted without advance notice There are, however, special circumstances under which OSHA may indeed give notice to the employer, but even then, such a notice will be less than 24 hours. These special circumstances include:
- Imminent danger situations which require correction as soon as possible;
- Inspections that must take place after regular business hours, or that require special preparation
- Cases where notice is required to ensure that the employer and employee representative or other personnel will be present; and/or
- Situations in which the OSHA area director determines that advance notice would produce a more thorough or effective inspection
