September 26th, 2019
Edwin G. Foulke, Jr.
Fisher & Phillips LLP
Section 5(a) of the OSH Act states:
"The basic duties of employers and employees are that:
This basic duty of the employer often is referred to as the employers’ “general duty clause,” because it creates an obligation to safeguard employees against any recognized hazards even if no OSHA standard addresses the issue. This is discussed in detail in Chapter 4, The employer’s general duty. Every employer is also required to post the OSHA required poster where all employees can see their rights and responsibilities. See Appendix A, Required postings.
Employers are charged with knowing all OSHA standards and meeting the requirements stated by those regulations. Lack of knowledge of the OSHA standards’ requirements is not a defense to an alleged violation. The largest groups of these standards address hazards in:
A particular hazard could be covered by a specific standard in one type of covered industry group, but not covered specifically in a standard with application to other workplace types. If a “vertical standard” applying to a specific industry (for example, construction) is in effect, then it preempts a “horizontal standard” with broad application over other industries (in other words, general industries). For example: A standard covering lockout of equipment in construction work preempts the general-industry standard – even the more stringent standard – addressing lockout hazard. However, if the construction standard is silent with respect to some aspect of that hazard, then the relevant provisions of the general-industry standard apply to the construction employer. Similarly, a new standard could increase protection in one covered group, but not in others.
Employers should note that some OSHA standards describe the measures required for compliance in meticulous detail. For example, one of these “specification standards” regulates workplace exposure to asbestos in buildings, and it provides exhaustive instructions on matters like:
The opposite of a specification standard is a “performance standard,” which informs the employer of the expected objective, but does not dictate in minute detail – or, often, in any detail at all – how to achieve it. All employers must guard machinery to prevent employee contact with dangerous blades, pinch points, etc., but any effective means can be used. OSHA does not specify a method.
Employers are responsible for creating and maintaining numerous records under various OSHA standards. Some of these records are required of all employers, unless the exemption for small employers applies. Others are mandated by standards on specific hazards or specific work operations. In the usual case, only a minority of employers have recordkeeping duties under one of these hazard-specific or job-specific standards. When such a duty arises, it normally applies only to that subset of the workforce exposed to the hazard or engaged in the job regulated by the standard. (A detailed discussion of employers’ recordkeeping requirements is found in Chapter 5, OSHA recordkeeping requirements.)
As part of an onsite inspection, OSHA frequently inspects records to assess compliance with standards and to identify conditions that suggest a violation of the general duty clause. Of course, the violation of a specific standard could be “technical,” in the sense that the employer merely failed to do the paperwork properly. In the alternative, the recordkeeping violation could be evidence that a required program is seriously defective. In either situation, costly citations are possible.
All employer's are required to initiate a report to OSHA if the following work related catastrophic event occurs:
The report must be made by telephone or in person to permit timely inspection of the workplace. This requirement applies if the first death or the hospitalization occurs within 30 days after the incident that was the cause.
Difficulties often arise when several different employers working at one work site have responsibility under the Act for the health and safety of not only their employees, but the other employees at the site. Such situations occur frequently when employees of various employers share a common work area. This is common on construction sites, as well as industrial facilities that use contracted services of off-site firms for maintenance and other tasks.
Under OSHAs multi-employer violation policy, all employers at a multi-employer site:
Additionally, OSHA can cite two or more employers for the same violation. It is presumed that an “innocent” or “non-creating” employer can, and should, exert pressure on the employer responsible for the dangerous condition, and thereby effect improvement.
In issuing such multi-employer citations, OSHA considers each employer’s:
An employer normally can avoid an OSHA citation for a non-serious violation created by another employer, but not for a serious violation to which employees of the “innocent” employer are exposed. An employer can argue that a hazard created by another employer was one that the innocent employer could not discover with reasonable effort, even if the innocent employer had a substantial degree of control.
OSHA expects that general contractors, construction managers, and industrial owners and operators should oversee health and safety performance of contractors and subcontractors on the sites that they control. Citations of a general contractor on a construction site are common when a subcontractor creates an OSHA violation. The expansion of this policy into industrial facilities was a subject of controversy, but OSHA has and continues to cite the owner or operator of an industrial facility for a contractor’s and vendor’s violation of an OSHA standard. The Review Commission and Circuit Courts have upheld this policy.
The issue of control also is important when a covered employee is “borrowed” from one employer to work for a second employer. Temporary employees are also covered. In such situations, the employer with the power to direct or supervise the details of the borrowed employee’s work activity probably will receive the OSHA citation for a violation, but this is not always the determining factor. When the borrowed employee brings special skills and works without detailed oversight, then the loaning employer probably would be cited for the alleged violation or safety or health hazard to which the borrowed employee was exposed. Under the basic principles discussed in this section, a loaning employer would receive a citation if it knowingly loaned employees for work in a dangerous environment. Of course, the borrowing employer that created the hazardous conditions would be cited as well in this situation. Employers utilizing temporary employees should insure that those employees are properly trained and if the employer is supervising them, then these injuries and illnesses are put on the host employers 300 logs.
It is important that every employer make strenuous efforts to protect its own employees from safety and health hazards created by others. These efforts can include contacting the creating employer and requesting abatement of the hazard, which should be recorded in writing to show OSHA that the employer attempted to achieve compliance, and to safeguard employees by alternate means.
Employers who are unable to comply fully with an OSHA standard may apply for a variance under the OSH Act. Rules for variance applications in federal jurisdictions and in state plans are similar.
Common reasons for a variance request include:
As a general rule, a temporary variance will not be granted to an employer who merely cannot afford to pay the cost of full compliance. Nor may an employer receive a variance if its lack of diligence has caused the inability to achieve full and timely compliance.
Normally, an employer must apply for a temporary variance within a reasonable amount of time prior to the effective date of the standard. The employer must demonstrate that it has both:
An application must identify the standard and the specific portion thereof for which the temporary variance is requested, and the reason for the inability to comply fully on the effective date. The employer must certify that all of the following have been completed:
A temporary variance may be granted for the shorter of the following:
Temporary variances may be renewed only twice, an neither extensions may be longer than six months.
A permanent variance is granted if the employer can demonstrate that alternative practices, operations, equipment, etc., are at least as effective as compliance with the letter of every provision of the standard. Such a variance, issued in writing, will state the specific exceptions granted, as well as the employer’s specific responsibilities for creating and maintaining protection as effective as that expected from full compliance with the standard. The employer must inform the employees of the application and of their right to request a hearing on the matter.
OSHA might issue an interim order allowing the employer to continue operation under existing conditions while the application for a permanent variance is under study. An application for an interim order normally accompanies the application for a permanent variance. Interim orders of federal OSHA are published in the Federal Register. In areas covered by a state plan, normally the Commissioner or Director of Labor maintains copies of all final orders for permanent variances. Final orders must be:
The OSH Act provides employees with the right to expect safe and healthful working conditions, and for the enforcement of these rights. The OSH Act commits the government to many research and educational programs to achieve safe and healthful work environments, for the benefit of employees.
Although Section 5(a) of the OSH Act requires employers to comply with OSHA safety and health standards, the OSH Act provides for no OSHA enforcement action against employees. In fact, it demands relatively little of them.
However, employers may insist upon employees’ compliance with rules designed to enhance workplace health and safety. An employer that disciplines or terminates an employee because of refusal to comply with, or violation of, safety and/or health rules normally has a strong case, if the action is challenged in court or administrative proceedings.