Occupational Safety and Health

Summary of The Occupational Safety and Health Act of 1970 (OSH Act)

Who is Covered

In general, the Act covers all employers and their employees in the 50 states, the District of Columbia, Puerto Rico, and other U.S. territories. Coverage is provided either directly by the federal Occupational Safety and Health Administration (OSHA) or by an OSHA-approved state job safety and health plan. Employees of the U.S. Postal Service also are covered.

The Act defines an employer as any "person engaged in a business affecting commerce who has employees, but does not include the United States or any state or political subdivision of a State." Therefore, the Act applies to employers and employees in such varied fields as manufacturing, construction, longshoring, agriculture, law and medicine, charity and disaster relief, organized labor and private education.

The Act does not cover:

Self-employed persons;
Farms which employ only immediate members of the farmer's family;
Industries in which other federal agencies, operating under the authority of other federal laws, regulate working conditions. This category includes most working conditions in mining, nuclear energy and nuclear weapons manufacture, and many aspects of the transportation industries; and
Employees of state and local governments, unless they are in one of the states with OSHA-approved safety and health plans.

Basic Provisions/Requirements

The Act assigns OSHA two regulatory functions: setting standards and conducting inspections to ensure that employers are providing safe and healthful workplaces. OSHA standards may require that employers adopt certain practices, means, methods or processes reasonably necessary and appropriate to protect workers on the job. Employers must become familiar with the standards applicable to their establishments and eliminate hazards.

Compliance with standards may include ensuring that employees have and use personal protective equipment when required for safety or health. Employees must comply with all rules and regulations that apply to their own actions and conduct.

Even in areas where OSHA has not set forth a standard addressing a specific hazard, employers are responsible for complying with the OSH Act's "general duty" clause. The general duty clause [Section 5(a)(1)] states that each employer "shall furnish . . . a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

States with OSHA-approved job safety and health plans must set standards that are at least as effective as the equivalent federal standard. Most of the state-plan states adopt standards identical to the federal ones (three states, New Jersey, New York and Connecticut, have plans which cover only public sector employees).

Federal OSHA Standards. Standards are grouped into four major categories: general industry (29 CFR 1910); construction (29 CFR 1926); maritime (shipyards, marine terminals, longshoring--29 CFR 1915-19); and agriculture (29 CFR 1928). While some standards are specific to just one category, others apply across industries. Among the standards with similar requirements for all sectors of industry are those that address access to medical and exposure records, personal protective equipment, and hazard communication.

Access to Medical and Exposure Records: This regulation requires the employer to grant the employee access to any medical records the employer maintains with respect to that employee, including any records about the employee's exposure to toxic substances.
Personal Protective Equipment: This standard, which is defined separately for each segment of industry except agriculture, requires employers to provide employees with personal equipment designed to protect them against certain hazards. This equipment can range from protective helmets to prevent head injuries in construction and cargo handling work, to eye protection, hearing protection, hard-toed shoes, special goggles for welders, and gauntlets for iron workers.
Hazard Communication: This standard requires manufacturers and importers of hazardous materials to conduct hazard evaluations of the products they manufacture or import. If a product is found to be hazardous under the terms of the standard, the manufacturer or importer must so indicate on containers of the material, and the first shipment of the material to a new customer must include a material safety data sheet (MSDS). Employers must use these MSDSs to train their employees to recognize and avoid the hazards presented by the materials.

OSHA regulations cover such items as recordkeeping, reporting and posting.

Recordkeeping: Every employer covered by OSHA who has more than 10 employees, except for employers in certain low-hazard industries in the retail, finance, insurance, real estate, and service sectors, must maintain three types of OSHA-specified records of job-related injuries and illnesses.
The OSHA Form 300 is an injury/illness log, with a separate line entry for each recordable injury or illness. Such events include work-related deaths, injuries and illnesses other than minor injuries that require only first aid treatment and that do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job. Each year, the employer must post a summary of the OSHA Form 300 on a Form 300A, which includes the previous year's injuries and illnesses, in the workplace from February through April.

OSHA Form 301 is an individual incident report that provides added detail about each specific recordable injury or illness. A suitable insurance or workers’ compensation form that provides the same details may be substituted for OSHA Form 301.

Employers with 10 or fewer employees and employers in statistically low-hazard industries (listed in 29 CFR 1904, Subpart B) are exempt from maintaining these records. Industries currently designated as low-hazard include: automobile dealers; apparel and accessory stores; eating and drinking places; most finance, insurance, and real estate industries; and certain service industries, such as personal and business services, medical and dental offices, and legal, educational, and membership organizations.

However, in one situation such employers must still keep these records. Each year, the Department of Labor's Bureau of Labor Statistics (BLS) conducts a national survey of workplace injuries and illnesses. Participants are selected by the individual states, and all employers selected for the survey, even those usually exempt from the record-keeping requirements, must maintain these records. Before the end of the year, OSHA notifies all selected employers to begin keeping records during the coming year. The state offices that selected the employers are available to help employers complete the forms.

Reporting: Each employer, regardless of industry category or the number of its employees, must advise the nearest OSHA office of any accident that results in one or more fatalities or the hospitalization of three or more employees. The employer must so notify OSHA within eight hours of the occurrence of the accident. OSHA often investigates such accidents to determine whether violations of standards contributed to the event.

Voluntary Protection Program. The Voluntary Protection Program (VPP) is an OSHA initiative aimed at extending worker protection beyond the minimum required by OSHA standards. This program, along with others such as expanded on-site consultation services and full-service area offices, is a cooperative approach that, when coupled with an effective enforcement program, expands worker protection to help meet the goals of the OSH Act of 1970.

The VPP is designed to:

Recognize the outstanding achievements of those who have successfully incorporated comprehensive safety and health programs into their total management systems;
Motivate others to achieve excellent safety and health results in the same outstanding way; and
Establish a relationship between employers, employees, and OSHA that is based on cooperation rather than coercion.

OSHA reviews an employer's VPP application and visits the worksite to verify that the safety and health program described is in effect at the site. OSHA conducts annual evaluations for Merit and Demonstration programs and triennial evaluations for Star programs. All participants must send their injury information annually to their OSHA regional offices. Sites participating in the VPP are not scheduled for programmed inspections. However, OSHA handles any employee complaints, serious accidents or significant chemical releases according to routine procedures.

An employer may apply for a VPP at the nearest OSHA regional office. If OSHA approves the written qualifications, it schedules an onsite review. The review team presents its findings in a report for the company's evaluation before submitting it to the Assistant Secretary for Occupational Safety and Health.

If the report is approved, the Assistant Secretary sends a letter to the employer informing him or her of the worksite’s participation in the VPP, and the employer receives a certificate and flag at a ceremony held at or near the approved worksite. Employers at Star sites that are reapproved after triennial evaluation receive plaques at similar ceremonies.

The VPP is available in states under federal jurisdiction. Some states with their own safety and health programs have similar programs. Interested companies in these states should contact the appropriate state agency for more information.

Employee Rights

The Act grants employees several important rights. Among them are the right to complain to OSHA about safety and health conditions in their workplaces and have their identities kept confidential from employers, to contest the amount of time OSHA allows for correcting violations of standards, and to participate in OSHA workplace inspections.

Private sector employees who exercise their rights under OSHA can be protected against employer reprisal, as described in Section 11(c) of the OSH Act. Employees must notify OSHA within 30 days of the time they learned of the alleged discriminatory action. OSHA will then investigate, and if it agrees that discrimination has occurred, OSHA will ask the employer to restore any lost benefits to the affected employee. If necessary, OSHA can take the employer to court. In such cases, the worker pays no legal fees.

Compliance Assistance Available

Standards: The Federal Register is an excellent source of information on standards, since all OSHA standards are published there when made final, as are all amendments, corrections, insertions and deletions. The Federal Register is published five days a week, and it is available in many public libraries. Annual subscriptions are available from the Superintendent of Documents, U.S. Government Printing Office (GPO), Washington, DC 20402. OSHA also provides copies of its Federal Register notices on its Web site.
Each year the Office of the Federal Register publishes all current regulations and standards in the Code of Federal Regulations (CFR), also available at many public libraries and from GPO. OSHA's regulations and standards, which are collected in several volumes in Title 29 CFR, Parts 1900-1999, are also available on OSHA’s Web page on standards. In addition, OSHA has a compliance assistance section on its Web site. For a fee, GPO offers a data text-retrieval package in CD-ROM format that contains all OSHA standards, compliance directives and standards interpretations.

Finally, a number of Expert Advisors help employers and workers to understand and apply OSHA's regulations.

Because states with OSHA-approved job safety and health programs adopt and enforce their own standards under state law, copies of these standards can be obtained from the individual states.

Training and Education: OSHA has more than 70 full-service field offices that offer a variety of informational services, such as publications, technical advice, audio-visual aids on workplace hazards, and lecturers for speaking engagements.
The OSHA Training Institute in Des Plaines, Illinois, provides basic and advanced training and education in safety and health for federal and state compliance safety and health officers; state consultants; other federal agency personnel; and private sector employers, employees and their representatives. Course topics include electrical hazards, machine guarding, ventilation, and ergonomics, among others.

The Institute’s facility includes classrooms, laboratories, a library and an audio-visual unit. The laboratories contain various demonstrations and equipment, such as power presses, woodworking and welding shops, a complete industrial ventilation unit, and a noise demonstration laboratory. Sixty-one courses are available for students from the private sector addressing subjects such as safety and health in the construction industry and methods of voluntary compliance with OSHA standards.

OSHA also provides funds to nonprofit organizations so that they can conduct workplace training and education. OSHA annually identifies areas of unmet needs for safety and health education in the workplace and invites grant applications to address these needs. Grants are awarded annually.

Organizations awarded grants use the funds to develop training and educational programs, reach out to workers and employers for whom their programs are appropriate, and deliver the programs to employers and employees. The Training Institute is OSHA's point of contact for learning about the many valuable training products and materials developed under such grants.

While OSHA does not distribute grant materials directly, it provides addresses and telephone numbers of persons from whom the public can order such materials. However, OSHA does provide limited lending of grant-produced audiovisual training programs through the Resource Center Audiovisual Circulation Project. Contact the OSHA Training Institute at 847-297-4810.

Consultation Assistance: Consultation assistance is available to employers who want help in establishing and maintaining safe and healthful workplaces. Largely funded by OSHA, the service is available in every state and territory. It is provided at no cost to the employer. Primarily targeted toward smaller employers with more hazardous operations, the consultation service is delivered by state government agencies or universities employing professional safety consultants and health consultants. On-site OSHA consultation assistance includes an opening conference with the employer to explain the ground rules for consultation, a walk through the workplace to identify specific hazards and to examine those aspects of the employer's safety and health program that relate to the scope of the visit, and a closing conference. Later, the consultant sends a report of findings and recommendations to the employer.
This process begins with the employer's request for consultation, which must include a commitment to correct any serious job safety and health hazards identified. The consultant will not report possible violations of OSHA standards to OSHA enforcement staff unless the employer fails or refuses to eliminate or control worker exposure to any identified serious hazard or imminent danger. Should this occur, OSHA may investigate and begin enforcement action. The employer must also agree to allow the consultant to confer freely with employees during the on-site visit.

Additional information about consultation assistance, including a directory of OSHA-funded consultation projects, can be obtained by requesting OSHA publication No. 3047, Consultation Services for the Employer.

Information Sources: Information about state programs, VPPs, consultation programs, and inspections can be obtained from the nearest OSHA regional, area, or district office. Area offices are listed in local telephone directories under the U.S. Department of Labor. Regional and area office addresses, telephone and fax numbers can be found on the OSHA Web site.
The OSHA Home Page at www.osha.gov contains information on other OSHA activities, statistics, media releases, and technical assistance, as well as links to other safety and health Web sites. OSHA has a number of interactive advisors to help employers comply with OSHA standards.

Penalties/Sanctions

Every establishment covered by the Act is subject to inspection by OSHA compliance safety and health officers (CSHOs). These individuals, who are chosen for their knowledge and experience in occupational safety and health, are thoroughly trained in OSHA standards and in the recognition of occupational safety and health hazards. In states with their own occupational safety and health plans, state CSHOs conduct inspections.

OSHA conducts two general types of inspections, programmed and unprogrammed. Establishments with high injury rates receive programmed inspections, while unprogrammed inspections are used in response to fatalities, catastrophes, and complaints (which are further addressed by OSHA’s complaint policies and procedures). Various OSHA publications and documents detail OSHA’s policies and procedures for inspections.

Types of violations that may be cited and the penalties that may be proposed:

Other-Than-Serious Violation: A violation that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm. A proposed penalty of up to $7,000 for each violation is discretionary. A penalty for an other-than-serious violation may be adjusted downward by as much as 95 percent, depending on the employer's good faith (demonstrated efforts to comply with the Act), history of previous violations, and size of business. When the adjusted penalty amounts to less than $50, no penalty is proposed.
Serious Violation: A violation where a substantial probability that death or serious physical harm could result and where the employer knew, or should have known, of the hazard. A mandatory penalty of up to $7,000 for each violation is proposed. A penalty for a serious violation may be adjusted downward, based on the employer's good faith, history of previous violations, the gravity of the alleged violation, and size of business.
Willful Violation: A violation that the employer intentionally and knowingly commits. The employer either knows that what he or she is doing constitutes a violation, or is aware that a hazardous condition existed and has made no reasonable effort to eliminate it.
The Act provides that an employer who willfully violates the Act may be assessed a civil penalty of not more than $70,000 but not less than $5,000 for each violation. A proposed penalty for a willful violation may be adjusted downward, depending on the size of the business and its history of previous violations. Usually no credit is given for good faith.

If an employer is convicted of a willful violation of a standard 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 [authorized under the Omnibus Crime Control Act of 1984 (1984 OCCA), not the OSH Act], may be imposed for a criminal conviction.

Repeated Violation: A violation of any standard, regulation, rule or order where, upon reinspection, a substantially similar violation is found. Repeated violations can bring fines of up to $70,000 for each such violation. To serve as the basis for a repeat citation, the original citation must be final; a citation under contest may not serve as the basis for a subsequent repeat citation.
Failure to Correct Prior Violation: 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.

Additional violations for which citations and proposed penalties may be issued:

Falsifying Records, Reports or Applications: Upon conviction, can bring a fine of $10,000 or up to six months in jail, or both.
Assaulting a CSHO: This act, or otherwise resisting, opposing, intimidating, or interfering with a CSHO in the performance of his or her duties, is a criminal offense, subject to a fine of not more than $250,000 for an individual and $500,000 for a corporation (1984 OCCA) and imprisonment.

Citation and penalty procedures may differ somewhat in states with their own OSH programs.

Appeals process:

Appeals by Employees: If a complaint from an employee prompted the inspection, the employee or authorized employee representative may request an informal review of any decision not to issue a citation.
Employees may not contest citations, amendments to citations, penalties or lack of penalties. They may contest the time allowed in the citation for abatement of a hazardous condition. They also may contest an employer's Petition for Modification of Abatement (PMA), which requests an extension of the abatement period. Employees who wish to contest the PMA must do so within 10 working days of its posting or within 10 working days after an authorized employee representative has received a copy.

Within 15 working days of the employer's receipt of the citation, the employee may submit a written objection to OSHA regarding the abatement date. The OSHA area director forwards the objection to the Occupational Safety and Health Review Commission, which operates independently of OSHA.

Employees may request an informal conference with OSHA to discuss any issues raised by an inspection, citation, notice of proposed penalty, or the employer's notice of intention to contest.
Appeals by Employers: When issued a citation or notice of a proposed penalty, an employer may request an informal meeting with OSHA's area director to discuss the case. Employee representatives may be invited to attend the meeting. To avoid prolonged legal disputes, the area director is authorized to enter into settlement agreements that may revise citations and penalties.
Notice of Contest: If the employer decides to contest the citation, the time set for abatement, or the proposed penalty, he or she has 15 working days from the time the citation and proposed penalty are received in which to notify the OSHA area director in writing. An orally expressed disagreement will not suffice. This written notification is called a "Notice of Contest."
There is no specific format for the Notice of Contest. However, it must clearly identify the employer's basis for contesting the citation, notice of proposed penalty, abatement period, or notification of failure to correct violations. To better identify the scope of the contest, it also should identify the inspection number and citation number(s) being contested.

A copy of the Notice of Contest must be given to the employees' authorized representative. If any affected employees are unrepresented by a recognized bargaining agent, a copy of the notice must be posted in a prominent location in the workplace, or else served personally upon each unrepresented employee.
Appeal Review Procedure: If the written Notice of Contest has been filed within 15 working days, the OSHA area director forwards the case to the Occupational Safety and Health Review Commission (OSHRC). The Commission is an independent agency not associated with OSHA or the Department of Labor. The Commission assigns the case to an administrative law judge.
The judge may disallow the contest if it is found to be legally invalid, or a hearing may be scheduled for a public place near the employer's workplace. The employer and the employees have the right to participate in the hearing; the OSHRC does not require that they be represented by attorneys.

Once the administrative law judge has ruled, any party to the case may request a further review by OSHRC. Also, any of the three OSHRC commissioners may individually move to bring a case before the Commission for review. Commission rulings may be appealed to the U.S. Courts of Appeals.
Appeals In State-Plan States: States with their own occupational safety and health programs have their own systems for review and appeal of citations, penalties, and abatement periods. The procedures are generally similar to Federal OSHA's, but a state review board or equivalent authority hears cases.

Relation to State, Local and Other Federal Laws

The agency covers all working conditions that are not addressed by safety and health regulations of another federal agency under other legislation. OSHA also has the authority to monitor the safety and health of federal employees.