Introduction to OSHA

The Occupational Safety and Health Act (the OSH Act) has been the principal force of change acting to reduce work-related injuries, deaths, and diseases of occupational origin in American workplaces. It has led to the issuance of hundreds of safety and standards regulations that affect every type of workplace – from the clerical office, to the industrial plant, to the construction site. The OSH Act and the standards/regulations of the Occupational Safety and Health Administration (OSHA) impose important legal duties and responsibilities upon employers, which must meet or potential liability including significant penalties could result.

The passage of the Occupational Safety and Health Act

The Occupational Safety and Health Act (OSH Act) was passed by Congress and signed by President Richard M. Nixon in 1970, coming into effect on April 28, 1971. The purpose of the OSH Act is stated concisely in its preamble:

“To assure safe and healthful 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.”

Congress intended that the act accomplish several important policy objectives, chief among which was to encourage safer and more healthful working conditions by establishing “separate but independent responsibilities and rights” for both employers and employees. 

The Occupational Safety and Health Administration (OSHA), within the U.S. Department of Labor, was given the task of developing and enforcing workplace health and safety standards, as well as protecting employees who make complaints to their employers regarding safety and health hazards at their worksite. The OSH Act also required the OSHA to create recordkeeping rules with which to evaluate the safety performance of individual employers, industrial sectors, and employers as a whole.

In addition, Congress intended to launch new and expanded research programs in workplace health and safety. Employers have a duty to cooperate with National Institute of Occupational Safety and Health (NIOSH) within the Department of Health and Human Services by:

• providing records maintained under the OSH Act

• permitting site inspections.

The structure of the Occupational Safety and Health Administration

As noted previously, OSHA, created by the OSH Act, exists within the United States Department of Labor (DOL). The Assistant Secretary of Labor for OSHA, who is appointed by the President and approved by the United States Senate, reports to the Secretary of Labor.

Each of the states is within one of 10 OSHA regional offices, each of which has its own Regional Administrator (RA). The territories of these regional offices are further divided into zones covered by “area offices,” which are responsible for most workplace inspections. A list of the regional offices follows:

States with their own state plans

Twenty-two states and territories administer their own “state plans” under authority granted by OSHA according to the OSH Act after approving the state’s application. Fix of these states have only public sector coverage while federal OSHA retains private sector jurisdiction. A list of all state plan program follows:

Jeff Killip, Chief (510) 286-7000 | Fax: (510) 286-7037

John Rosa, Director (860) 263-6925 | Fax: (860) 263-6940

Anne E. Perreira-Eustaquio, State Plan Designee and Director, DLIR (808) 586-8844 | Fax: (808) 586-9099

Norman Ahu, HIOSH Administrator (808) 586-9116

Erick Kambarian, Cheif, Illinois OSHA Division (217) 782-9386

David Redden, Commissioner (317) 232-2693 | Fax: (317) 233-3790

Michelle Ellison, Deputy Commissioner, IOSHA (317) 233-3605 | Fax: (317) 233-3790

Rod Roberts, Labor Commissioner (515) 725-5670

Tracey Gibson, Acting IOSH Administrator (515) 725-5625  | Fax: (515) 281-7995

Michael Penn, Chief of Compliance/Acting Assistant Commission, (410) 527-2062 | Fax: (410) 527-4482

Mary Dozois, State Plan Supervision, MIOSHA (517) 284-7777 | Fax: (517) 284-7775

Nicole Blissenbach, Commissioner (651) 284-5010 | Fax: (651) 284-5721

James Krueger, MNOSHA Compliance Director (651) 284-5571 | Fax: (651) 284-5741

Bill Gardner, Chief Administrative Officer (702) 486-9020 | Fax: (702) 990-0358

Robert Asaro-Angelo, Commissioner (609) 292-2975 | Fax: (609) 292-3749

Justin Baker, Director, Division of Public Safety and Occupational Safety and Health (609) 376-5059 

Renee Stapleton, Administrator, (503) 378-3272 | Fax: (503) 947-7461

Julie Love, Deputy Administrator, (503) 378-3272 | Fax: (503) 947-7461

Judith M. Cruce Concepcion, PR OSHA Assistant Secretary of Labor (787) 754-2171 | Fax: (787) 754-2172 ext. 3301

Deniece Thomas, Commissioner (844) 224-5818

Wendylee Fisher, TOSHA Administrator (615) 741-2793

Floyd Johnson, Division Director (801) 530-6898 | Fax: (801) 530-7606

Holly Lawrence, Compliance Program Manager (810) 530-6494 | Fax: (801) 530-7606

Vermont

Gary Pan, Commissioner (804) 786 2377 | Fax: (804) 371-6524

Research and studies

Responsibility for scientific research and technical studies was vested by the OSH Act in the National Institute of Occupational Safety and Health (NIOSH), within the U.S. Department of Health and Human Services. NIOSH researchers, and often contractors working under NIOSH grants, develop the “criteria” for standards on workplace health and safety. These criteria become the basis for the OSHA standard-setting process, which must consider issues beyond the technical and scientific ones. NIOSH also conducts research on occupational diseases. In addition, the OSH Act authorizes field inspections for research at employers’ places of business, which are conducted under the same statutory authority as OSHA compliance inspections. NIOSH does not issue citations for OSHA violations.

As the national government’s principal provider of technical and scientific services in the field, NIOSH develops testing criteria and protocols for workplace safety devices, and certifies those that pass the tests. These certification tests are authorized both by the OSH Act and the federal Coal Mine Safety Act. Many certifications are issued jointly by NIOSH and the Mine Safety and Health Administration (MSHA). NIOSH or NIOSH/MSHA approval provides some assurances to employers, and it encourages innovation among manufacturers to meet the stringent standards for certification.

Review of contested citations

The OSH Act also created a third major entity – the Occupational Safety and Health Review Commission (OSHRC) – to resolve contest of citations between employers and OSHA. The OSHRC functions as a federal court, with similar formalities and powers (for example, to compel testimony). Its three Commissioners, who are appointed by the President and approved by the Senate, serve for six-year terms. The OSHRC has authority to appoint subordinate administrative law judges to hear cases.

The purpose of state programs

An OSHA state plan agency normally exists within the state’s Department of Labor. Also, each state’s Commissioner of Labor is appointed by the governor or elected by the state voters. All state OSHA programs conduct inspections of employer’s workplaces and issue citations and penalties for violations of its standards. Most of these standards are identical to those enforced by federal OSHA.

Coverage

In general, coverage of the OSH Act extends to all private sector employers and their employees in all 50 states, plus the District of Columbia, Puerto Rico, and all other territories under the jurisdiction of the U.S. Government. All private employers engaged in business affecting interstate commerce are covered. Both the employer that uses their service and the employer that provides such services are covered.

Exemptions

The OSH Act does exempt from coverage employers that are entities of national, state, and local government. However, in state OSHA programs, there is no such broad exemption for state government employers and employees, but state OSHA programs have no authority to regulate health and safety of employees of the U.S. government.

Several other types of employers are exempt from coverage by the OSH Act, and these are not regulated by federal and state plan OSHA. These include self-employed persons, as well as employees on farms on which the farm employer and the immediate family of the farm employer constitute the entire workforce. State OSHA plans do not regulate health and safety in maritime, railroad, and mining operations. Federal OSHA has reserved the regulation of maritime operations because of several reasons:

• They want a unified policy for all navigable waters.

• They did not feel the states would be equipped to handle these types of inspections.

• The Coast Guard does preempt certain areas of safety on navigable waters.

The OSH Act also specifically exempts from coverage employers and their employees covered with respect to workplace health and safety under other federal agencies’ statutory authority (with the exceptions discussed previously). Thus, an employer may be exempt if it can show that another federal agency, under its own statutorily authorized regulation or federal law, has authority to regulate employee health and safety. (This preemption can be raised by an employer as an affirmative defense to an OSHA citation. See Procedural and affirmative defenses.)

Case law has determined that this preemption applies to workplaces subject to regulation of employees’ health and safety by many agencies, including: 

• the Environmental Protection Agency

• the Coast Guard

• the federal Railway Administration

• the federal Aviation Administration

• the U.S. Department of Transportation.

The scope of the preemption often does not encompass all aspects of health and safety in a workplace; normally it is limited to specific subjects and situations. Other aspects of these employers’ workplace health and safety would be within the proper jurisdiction of state plan OSHA. For example, employees loading or unloading a railroad boxcar would be covered by state plan OSHA, while the train operation would be covered by the federal railway safety rules.

Standards

When enacted, the OSH Act permitted fast action by the Secretary of Labor to issue “as official OSHA standards” any existing standard on workplace health and safety. The Act provided for an initial two-year period in which OSHA could adopt any “national consensus standard” or established federal standard, unless the Secretary made an explicit determination that workplace health and safety would not be improved by the adoption. Congress has directed that the more protective standard be adopted in the event of a conflict. Many standards were issued under this provision, and later revised, under more formal procedures, after the first two years.

The OSH Act specifies the procedure by which OSHA standards may be issued, modified, or revoked. Under this procedure, the standard-setting process begins when the Secretary determines that a need exists – on the basis of information from the Department of Labor, the Department of Health and Human Services, or various sources. The OSH Act imposes time limits on the period for development of a proposed rule.

When the Secretary has developed the proposed health or safety rule, the text must be published in the Federal Register, the publication of all governmental statutes and regulations, as a notice of proposed rulemaking, and interested parties must be given 30 days thereafter to submit written comments. Any interested individual, group, or association objecting to the proposed rule may request a public hearing. Within 60 days after the close of the comment period, or after any public hearing, the Secretary is supposed to issue the rule. The new rule must appear in the Federal Register, with notice of the date on which it becomes effective.

Advance notice of proposed standards

OSHA sometimes publishes, in the Federal Register, an “advance notice of proposed rulemaking,” before there is an actual formal proposal. In such situations, OSHA solicits information from the scientific and regulated communities that will help in preparing a new standard.

Emergency temporary standards

In extreme situations, OSHA may issue “emergency temporary standards” (ETSs) through a process that bypasses these formalities. The Secretary first must determine that employees are exposed to some “grave danger” from a workplace hazard and that immediate action by OSHA is necessary to provide protection. If OSHA issues such a standard, it is effective immediately upon publication in the Federal Register, and it remains in effect until it is superseded by a standard issued under the formal process dictated in the OSH Act. The Secretary must begin this formal process using the ETS as the proposed rule, and the formally issued standard must be issued within six months after its publication.

Questions and answers

Q. Who is covered by OSHA?

A. All employers with one or more employees, except for federal, state, or local governments, are covered by OSHA. This exclusion for federal, state, and local governments is limited – that is, the existence of a contractual or other relationship with a government entity will not relieve you of OSHA’s jurisdiction. However, employers with fewer than 11 employees generally will not be inspected except in cases of a complaint or a referral from another governmental agency. Such companies also are exempt from OSHA’s recordkeeping requirements.

Q. What are OSHA's requirements?

A. There are two types of OSHA requirements:

1. Specific OSHA standards and regulations set forth in the Federal Register and codified in the Code of Federal Regulations (CFR).
2. OSHA’s “general duty” requirement – discussed in detail in Employer’s general duty.

Q. What are OSHA's specific standards and where can they be found?

A. OSHA’s specific standards are those adopted by OSHA through rulemaking or (especially in the case of older rules) through adoption of existing national consensus standards such as, the National Fire Protection Association. (See 29CFR Section 1910.6) All OSHA standards and can be accessed online at: 

• https://www.osha.gov

Various private publishing services also reprint the standards, including Commerce Clearing House (CCH) and the Bureau of National Affairs (BNA). Copies of specific OSHA standards also may be obtained from the local OSHA office. However, employers should be careful since standards change. Therefore, a company must keep current on not only OSHA’s generally applicable standards, but also those that are directed specifically to its particular type of business or industry.

Q. What is the difference between a standard and a regulation?

A. A standard is intended to directly affect employees’ working conditions by identifying hazards and prescribing means to eliminate or materially reduce them. Regulations deal with procedural matters, such as recordkeeping and steps to take following receipt of a citation. OSHA can issue citations for violation of either standards or regulations.

Q. What is a "general duty clause" violation?

A. Under the OSH Act, an employer has an obligation to furnish “employment and place of employment … free from recognized hazards that are causing or are likely to cause death or serious physical harm.” This is a “catch-all” provision and is intended to correct conditions where there is no specific applicable OSHA standard.

To establish a “general duty“ clause violation, OSHA must demonstrate that a hazardous condition to which the employer’s employees were exposed existed in the workplace, that the employer “recognized” the hazardous condition or that its industry recognized it, that the hazard was causing or likely to cause serious physical harm or death, and that the correction of the condition was “feasible.” The standard for judging feasibility is the opinion of the safety or health experts (or knowledgeable persons) familiar with the industry. Although there are grades of violations, “general duty“ clause violations must be “serious,” since the statute requires that they be capable of causing death or serious physical harm.

Q. What happens if an employer cannot meet OSHA's standards?

A. The answer depends upon the reason. The OSH Act sets forth procedures for temporary and permanent variances from OSHA standards. Temporary variances are intended to permit an employer additional time in which to come into compliance with a new standard. Permanent variances are used when it is impossible for an employer to meet the requirements of the standard. Generally, to obtain a variance, an employer must prove that it has some unusual difficulty in complying and that a company’s proposed alternative provides the same degree of safety to its employees. The company cannot obtain a variance in order to avoid a citation that has been issued for violation of a standard. 

Q. How does a company prepare for an OSHA inspection?

A. Appoint a contact person (such as a safety officer) and backup at each company location to keep up to date on OSHA regulations and standards. This safety officer will act as a company’s representative during any OSHA inspection. The company representative should be trained on the company's legal rights during an inspection. Also, it is advisable to institute an in-house inspection procedure. Test the facility before the OSHA inspector arrives.

Caution: The company should be aware, however, that written safety audits conducted in-house or by a third party in the normal course of business may be obtained by OSHA during an inspection or in connection with litigation over a citation. Therefore, a company should consult with OSHA counsel before undertaking such a project. Also, inform the employees about the importance of maintaining a safe workplace by holding periodic safety meetings. Where warranted, safety violators should be disciplined in accordance with established company disciplinary policies and procedures. Finally, make sure the facility’s recordkeeping is current and complete, and that OSHA's required notices to employees are posted in locations where other notices to employees are posted.

Q. What instructions should be given to other employees?

A. Other employees, notably receptionists and security personnel, should be advised that, upon the appearance on the premises of any OSHA agent, the individual’s name, title, and purpose of visit should be obtained. Request the OSHA agent to present his or her identification – credentials and business card – and ask the investigator to identify the OSHA area office to which he or she reports. The OSHA compliance officer should then be told that he or she will be referred to the safety officer. No questions should be answered or information given. It is also important that such employees be instructed not to be awed by any badge or identification shown or agency name given, nor by any intimidating or threatening remarks or officious manner. The rule is to be cool, courteous, correct, and firm.

Q. When will the OSHA inspection occur?

A. Generally, an employer will not have any advance warning of an OSHA inspection. In fact, advance warning of an inspection is prohibited under the Act. Any person giving advance notice of an inspection is subject to a maximum $16,625 fine or six months imprisonment or both. However, in the case of an investigation resulting from an accident or where additional visits are needed to complete an inspection, OSHA may schedule a return visit when it is deemed appropriate in the opinion of the area director.