Occupational Safety and Health Administration
(OSHA)
The Occupational Safety and Health Administration (OSHA) were
established by the Williams-Steiger Occupational Safety and Health Act (OSH
Act) of 1970, which took effect in 1971. OSHA's mission is to ensure that every
working man and woman in the nation is employed under safe and healthful
working conditions. Nearly every employee in the United States comes under
OSHA's jurisdiction. The only exceptions are people who are self-employed,
workers in mining and transportation industries (who are covered by other
agencies), and most public employees. Thus, nearly every private employer in
the United States needs to be cognizant of OSHA rules and regulations. OSHA is
an administrative agency within the United States Department of Labour and is
therefore administered by an assistant secretary of labour.
OSHA OBJECTIVES AND STANDARDS
OSHA seeks to make workplaces safer
and healthier by making and enforcing regulations called standards in the OSH
Act. The Act itself establishes only one workplace standard, which is called
the "general duty standard." The general duty standard states:
"Each employer shall furnish to each of his 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 to his employees." In
the OSH Act, Congress delegated authority to OSHA to make rules further
implementing the general duty standard.
Standards made by OSHA are published
in the Code of Federal Regulations (CFR). The three types of
regulations are called interim, temporary emergency, and permanent. Interim
standards were applicable for two years after OSH Act was passed. For this
purpose, OSHA was authorized to use the standards of any nationally recognized
"standards setting" organization such as those of professional
engineering groups. Such privately developed standards are called
"national consensus standards." Temporary emergency standards last
only six months and are designed to protect workers while OSHA goes through the
processes required by law to develop a permanent standard. Permanent standards
are made through the same processes as the regulations made by other federal
administrative agencies.
As OSHA drafts a proposal for a permanent standard,
it consults with representatives of industry and labour and collects whatever
scientific, medical, and engineering data is necessary to ensure that the
standard adequately reflects workplace realities. Proposed standards are
published in the Federal Register. A comment period is then held,
during which input is received from interested parties including, but not limited
to, representatives of industry and labour. At the close of the comment period,
the proposal may be withdrawn and set aside, withdrawn and re-proposed with
modifications, or approved as a final standard that is legally enforceable. All
standards that become legally binding are first published in the Federal
Register and then compiled and published in the Code of
Federal Regulations. Many of OSHA's permanent standards originated as
national consensus standards developed by private professional organizations
such as the National Fire Protection Association and the American National
Standards Institute. Examples of permanent OSHA standards include limits for
exposure of employees to hazardous substances such as asbestos, benzene, vinyl
chloride, and cotton dust. See the OSHA Web site at
www.osha.gov/SLTC/index.html for more information.
NATIONAL INSTITUTE OF OCCUPATIONAL SAFETY AND HEALTH
The OSH Act of 1970 also established a research
institute called the National Institute of Occupational Safety and Health
(NIOSH). Since 1973, NIOSH has been a division of the U.S. government's Centres
for Disease Control (CDC). The purpose of NIOSH is to gather data documenting
incidences of occupational exposure, injury, illness and death in the United
States. This information, which is highly valued by OSHA, is gathered from a
wide variety of sources, ranging from industry groups to labour unions, as well
as independent organizations.
OSHA RECORD-KEEPING REQUIREMENTS
OSHA requires all companies subject to its
workplace standards to abide by a variety of occupational regulations. One of
OSHA's major requirements is that companies keep records on facets of their
operations relevant to employee health and safety. All employers covered by the
OSH Act are required to keep four kinds of records:
- Records regarding enforcement of OSHA
standards
- Research records
- Job-related injury, illness, and death records
- Job hazard records
OSHA ENFORCEMENT OF STANDARDS
OSHA inspectors conduct planned or surprise
inspections of work sites covered by the OSH Act to verify compliance with the
OSH Act and standards promulgated by OSHA. The OSH Act allows the
employer and an employee representative to accompany OSHA's
representative during the inspection. In 1978, in Marshall v. Barlow,
the United States Supreme Court declared that in most industries, employers
have a right to bar an OSHA inspector from his/her premises if the inspector
has not first obtained a search warrant.
If violations are found during an inspection, an
OSHA citation may be issued in which alleged violations are listed, notices of
penalties for each violation are given, and an abatement period is established.
The abatement period is the amount of time the employer has to correct any
violation(s). Penalties for a violation can be civil or criminal and vary
depending on the nature of the violation (minor or serious, wilful or non-wilful,
first offense of repeat offense). Penalties are naturally more severe for
serious, repeated, wilful violations. Since OSHA must refer cases to the United
States Justice Department for criminal enforcement. OSHA has not made extensive
use of criminal prosecution as an enforcement mechanism preferring instead to
rely on the deterrent effect of civil penalties.
An employer has 15 days to contest an OSHA
citation, and any challenge is heard by an Administrative Law Judge (ALJ)
within OSHA. The ALJ receives oral and written evidence, decides issues of fact
and law, and enters an order. If the employer is dissatisfied with that order,
it can be appealed to the Occupational Safety and Health Review Commission,
which will, in turn, enter an order. Finally, within 30 days of the issuance of
that order, the employer or the Secretary of Labour can take the case to the
United States federal court system by filing an appeal with a United States
court of appeals.
OSHA AND ITS STATE COUNTERPARTS
Pursuant to the OSH Act, an individual state can
pass its own worker health and safety laws and standards. Indeed, the 1970
legislation encouraged individual states to develop and operate their own job
safety and health programs. If the state can show that its job safety and
health standards are "at least as effective as" comparable federal
standards, the state can be certified to assume OSH Act administration and
enforcement in that state. OSHA approves and monitors state plans, and provides
up to 50 percent of operating costs for approved plans.
To gain OSHA approval for a "developmental
plan," the first step in the process of instituting a state plan for job
safety and health, the applying state must first assure OSHA that it will,
within three years, have in place all the structural elements necessary for an
effective occupational safety and health program. These elements include: 1)
appropriate legislation; 2) regulations and procedures for standards setting,
enforcement, appeal of citations, and penalties; 3) adequate resources (both in
number and qualifications of inspectors and other personnel) for enforcement of
standards.
Once a state has completed and documented all its
developmental requirements, it is eligible for certification. Certification is
basically an acknowledgment that the state has put together a complete plan.
Once the state has reached a point where it is deemed capable of independently
enforcing job safety and health standards, OSHA may enter into an 'operational
status' agreement with the state. Once this occurs, OSHA in effect steps aside
and allows the state to enforce its laws.
The ultimate accreditation of a state plan is known
as "final approval." When OSHA grants final approval, it relinquishes
its authority to cover occupational safety and health matters that are addressed
by the state's rules and regulations. Final approval cannot be given until at
least one year after certification, and it is predicated on OSHA's judgment
that worker protection is at least as effective under the state's standards as
it is under the federal program. The state must meet all required staffing
levels and agree to participate in OSHA's computerized inspection data system
before being allowed to operate without OSHA supervision.
HISTORY OF THE RELATIONSHIP BETWEEN OSHA AND BUSINESS
OSHA has traditionally used "command and
control" kinds of regulation to protect workers. "Command and
control" regulations are those which set requirements for job safety (such
as requirements for guard rails on stairs) or limits on exposure to a hazardous
substance (such as a given number of fibbers of asbestos per cubic millilitre
of air breathed per hour). They are enforced through citations issued to
violators.
In 1984 OSHA promulgated the Hazard Communication
Standard (HCS), which was viewed as a new kind of regulation differing from
"command and control." The HCS gives workers access to information
about long-term health risks resulting from workplace exposure to toxic or
hazardous substances, and requires manufacturers, importers, and distributors to
provide employers with evaluations of all toxic or hazardous materials sold or
distributed to those employers. This information is compiled in a form known as
a Material Safety Data Sheet (MSDS). The MSDS describes the chemical's physical
hazards such as ignitability and reactivity, gives associated health hazards,
and states the exposure limits established by OSHA. In turn, the employer must
make these documents available to employees, and requires employers to
establish hazard communication education programs. The employer must also label
all containers with the identities of hazardous substances and appropriate
warnings. Worker "Right-to-Know," as implemented on the federal level
through the HCS, is designed to give workers access to information so that they
can make informed decisions about their exposure to toxic chemicals.
OSHA has been criticized by businesses and industry
groups throughout its history. In the 1970s, it was criticized for making
job-safety regulations that businesses considered to be vague or unnecessarily
costly. For example, a 1977 OSHA regulation contained detailed specifications
regarding irregularities in western hemlock trees used to construct ladders. In
the Appropriations Act of 1977, Congress directed OSHA to get rid of certain
standards that it described as "trivial." As a result, in 1978 OSHA
revoked 928 job-safety standards and increased its efforts to deal with health
hazards.
On the other hand, OSHA has also been criticized by
unions and other pro-worker groups throughout its history for doing too little
to protect employees. Throughout its existence, OSHA has been criticized for
issuing too few new standards, for failing to protect workers who report
violations, for failing to adequately protect workers involved in the cleanup
of toxic-waste sites, and for failing to enforce existing standards. The latter
charge has been a particularly frustrating one for OSHA. Funding for
enforcement has dwindled in recent years, and over the last 20 years, both
Congress and various presidential administrations have publicly supported
efforts to keep OSHA and other agencies "off the backs" of business.
OSHA REFORMS
OSHA is criticized from both sides, for being too
arbitrary with employers and for being too lax on employers. A 2000 survey of
members of the National Association of Manufacturers cited OSHA as the nation's
most intrusive federal agency (34 percent of responding manufacturers cited
OSHA, while 18 percent pointed to the Environmental Protection Agency, the
second-highest vote-getter; another 11 percent said no federal agency
significantly impeded their efficiency). The most frequent complaint levelled
against OSHA is that American workplace safety and health regulations are
excessively burdensome on businesses of all shapes and sizes. Critics call for
fundamental changes in OSHA's regulatory environment, insisting that changes
should be made to encourage voluntary industry compliance on worker safety
issues and reductions of penalties for non serious violators of standards. OSHA
itself has acknowledged that "in the public's view, OSHA has been driven
too often by numbers and rules, not by smart enforcement and results. Business
complains about over-zealous enforcement and burdensome rules'¦. And too often,
a "one-size-fits-all" regulatory approach has treated conscientious
employers no differently from those who put workers needlessly at risk."
Worker advocates and others, however, point out that OSHA standards have been
an important factor in the dramatic decline of injury and illness rates in many
industries over the past few decades, and they express concern that reforms
could put workers in a variety of businesses at greater risk.
OSHA's recent reform initiatives have sought to
address those issues raised by its critics while simultaneously ensuring that
American workers receive adequate health and safety protection in the
workplace. In 1995 OSHA announced a new emphasis on treating employers with
aggressive health and safety programs differently from employers who lack such
programs. "At its core," said OSHA, "this new approach seeks to
encourage the development of worksite health and safety programs." The
features that OSHA will be looking for are:
- Management commitment
- Meaningful participation of employees
- a systematic effort to find safety and health
hazards whether they are covered by existing standards or not
- Documentation that the identified hazards are
fixed
- Training for employees and supervisors
- A reduction in injuries and illnesses
Those firms equipped with good safety programs will
receive special recognition that will include: the lowest priority for
enforcement inspections, the highest priority for assistance, appropriate
regulatory relief, and major penalty reductions. Businesses that do not
adequately provide for their workers' health and safety, however, will be
subject to "strong and traditional OSHA enforcement procedures'¦. In
short, for those who have a history of endangering their employees and are
unwilling to change, OSHA will rigorously enforce the law without compromise to
assure that there are serious consequences for serious violators."
OSHA also announced its plans to make more tightly
focused inspections on companies that have effective safety and health
programs. If a company with a strong record meets selected safety/health
criteria, the OSHA inspector will conduct an abbreviated inspection.
Conversely, in situations where a safety and health program is nonexistent or
inadequate, a complete site inspection, including full citations, will be
undertaken.
OSHA and business interests clashed repeatedly
during the late 1990s over proposed new regulations designed to identify and
address workplace injuries and illnesses traced to the issue of ergonomics.
"OSHA would require companies to implement permanent engineering controls
and employ interim personal protective equipment," noted Purchasing.
"Examples of engineering controls involve changing, modifying, or
redesigning the following: workstations, tools, facilities, equipment,
materials, and processes'¦. Many businesses have already adopted ergonomic
design tools and workstations that reduce strain where repetitive motions,
sitting for long periods, or reaching are required. It's not clear yet what
companies will be required to do in the way of changes in processes and materials
used."
In recognition of the special challenges that often
face small businesses—and the limited financial resources that they often
have—the Occupational Safety and Health Administration administers a number of
special programs specifically designed to help entrepreneurs and small business
owners provide a productive yet safe environment for their employees.
Among the special programs that OSHA has instituted
for small businesses are the following:
- Penalty Reduction—OSHA may grant reductions of
60 percent for employers with 25 employees or fewer; 40 percent if the
employer has 26-100 employees; and 20 percent if the employer has 101-250
employees.
- Penalty Reductions for Good Faith—OSHA has the
option of granting a 25 percent penalty reduction if a small business has
instituted an effective safety and health program for its employees.
- Flexible Requirements—OSHA gives smaller firms
greater flexibility in certain safety areas in recognition of their limited
resources (i.e., lead in construction, emergency evacuation plans, process
safety management).
- Reduced Paperwork Requirements—OSHA has fewer
recordkeeping requirements for very small business. Employers with 10 or
fewer employees are exempt from most OSHA recordkeeping requirements for
recording and reporting occupational injuries and illnesses.
- Consultation Program—while not limited to
small businesses, OSHA on-site consultation program has been particularly
helpful to smaller companies (small firms accounted for about 40 percent
of the program during the mid-1990s). This service, which is run by state
agencies, provides businesses with the option of requesting a free on-site
consultation with a state representative who helps them identify potential
workplace hazards and improve or implement effective workplace safety and
health programs.
- Training Grants—OSHA awards grant money to
non-profit groups for the development of programs designed to help
entrepreneurs and small business owners establish safety and health
guidelines for their companies.
- Mentoring—OSHA and the Voluntary Protection
Programs Participants Association (VPPA) operate a mentoring program to
help small firms applying for entry into VPP refine their health and
safety programs. The VPP is an OSHA program that is intended to recognize
a firm's safety and health achievements. This mentoring program matches
applicants with VPP members (often in the same or a related industry) who
can help by sharing their experience with and knowledge about workplace
safety and health programs.
In addition to these federal level programs, many
states have their own federally approved safety and health standards and these
states often provide additional programs of assistance to small businesses.
THE VALUE OF CONSULTATION PROGRAMS
OSHA and business consultants alike encourage small
business owners to take advantage of available consultation programs. A
comprehensive consultation can provide small business owners with a wide
variety of information that can help ensure that they are in compliance with
regulatory requirements.
Consultations
will typically include appraisal of all mechanical and environmental hazards
and physical work practices; appraisal of the firm's present job safety and
health program; conference with management on findings; written report of
recommendations and agreements; and training and assistance with implementing
recommendations. "The consultant will then review detailed findings with
you in a closing conference," noted OSHA. "You [the business owner]
will learn not only what you need to improve, but also what you are doing
right. At that time you can discuss problems, possible solutions and abatement
periods to eliminate or control any serious hazards identified during the
walk-through'¦. The consultant can help you establish or strengthen an employee
safety and health program, making safety and health activities routine
considerations rather than crisis-oriented responses."
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