The federal Occupational Safety and Health Act (OSH Act) was implemented with the goal of reducing workplace injuries, illnesses and deaths. The OSH Act grants the Occupational Safety and Health Administration (OSHA), an agency of the federal government, the authority to create rules, standards and regulations governing workplace safety and health.
While some states have their own state OSHA plans, others mirror the federal act. Even though very state plan is based on the federal OSH Act, some vary enough to warrant specific attention to each plan when setting up a safety plan, dealing with inspections and responding to citations.
The OSH Act’s broad coverage includes nearly all private-sector employers and their employees. Certain employers and employees are, however, exempt from coverage.
The OSH Act extends broad coverage to nearly all private-sector employers. This includes employers across various fields and industries, including religious employers to the extent that their workers are employed for a non-religious purpose.
The limited exemptions from the OSH Act coverage include:
The OSH Act’s broad coverage extends to nearly all private-sector employees. This includes both executives and managers. In most circumstances, however, coverage does not extend to employees whose working conditions are regulated by other provisions of federal law, such as:
In several industries, there are situations where multiple employers perform work or are otherwise affiliated with a single worksite. One common example of a multi-employer worksite is a construction project where a general contractor and numerous subcontractors all work at the same worksite. To address safety and health violations on multi-employer worksites, OSHA, with the help of the federal courts, has developed the multi-employer worksite doctrine, which sets forth the circumstances under which more than one employer may be cited for a hazardous condition at a worksite that violates an OSHA standard.
OSHA recognizes the following four circumstances where an employer can be held liable under the multi-employer worksite doctrine:
Of these four categories of employers who can be liable for an OSH Act violation at a worksite, the requirements imposed on the controlling employer (also referred to as the premises owner) has been the subject of the most discussion by OSHA and the courts. Significantly, the controlling employer has a lesser duty to exercise reasonable care than is required of an employer with respect to protecting its own employees. Various factors affect how frequently and closely a controlling employer must inspect the worksite to meet its standard of reasonable care, including:
More frequent inspections are typically needed if the controlling employer knows that the other employer has a history of noncompliance or if the controlling employer has never worked with the other employer and does not know its compliance history. Less frequent inspections are appropriate where the controlling employer sees strong indications that the other employer has implemented effective safety and health efforts. A high level of compliance by the other employer is an important indicator of effective safety and health efforts. Other important safeguards for controlling employers include the use of an effective, graduated system of enforcement for noncompliance with safety and health requirements coupled with regular jobsite safety meetings and safety training.
Employers affiliated with a multi-employer worksite should take steps to limit their OSH Act liability for injuries on the worksite. Suggested steps include the following:
Covered employers must adhere to a number of general requirements and specific recordkeeping and reporting requirements in order to comply with the OSH Act.
Employers are generally responsible for the following under the Occupational Safety and Health Act:
All covered employers are required to keep records of occupational deaths, injuries and illnesses and to make certain reports to OSHA. Smaller employers (with 10 or fewer workers) and employers who have establishments in certain retail, service, finance, real estate or insurance industries are not required to keep those records. Covered employers, however, must report any occupational fatalities or catastrophes that occur in their establishments to OSHA, regardless of their recordkeeping obligations, and they must participate in government surveys if they are asked to do so.
Employers are required to report the death of an employee from a work-related incident within eight hours of the occurrence. Additionally, work-related incidents causing in-patient hospitalization, amputation or eye loss must be reported within 24 hours. Such reports must be made by telephone to the nearest OSHA area office or by calling the OSHA toll free central reporting number:
The Region 8 office can be reached at:
Note: If the relevant office is closed or the employer is otherwise unable to speak to a person at the office, the employer must use OSHA’s central reporting number to report the accident. The employer may not report the incident by leaving a message on an office’s answering machine, faxing the office or sending an email. If the employer does not learn of the incident right away, it must make the report within eight hours of the time the employer learns of the incident.
For each fatality, and otherwise mandatory reporting incident, the employer must provide OSHA with all the following information:
In addition to reporting fatalities and in-patient hospitalization, amputation or eye loss , employers not excluded from the recordkeeping obligation must also prepare and maintain records of “recordable” injuries and illnesses. An injury or illness is “recordable” and records must be kept if:
Within seven calendar days of receiving information that a recordable injury or illness has occurred, the employer must enter information regarding the incident on OSHA Form 300 (injury and illness log) and must complete OSHA Form 301 (incident report). At the end of the year, employers must review the injury and illness log to verify its accuracy and summarize it on OSHA Form 300A. The Form 300A must be certified by a company executive and posted for three months, from February 1 to April 30 of the following calendar year. Employers must retain all of these forms for five years following the calendar year to which they relate and each of the forms can be obtained at:
In January 2019, OSHA implemented a new rule requiring employers with 250 or more employees to submit injury and illness reports – generally found on Forms 300, 300A and 301 – electronically. OSHA intends to place the data from these reports into a searchable online database. Collection of calendar year 2018 information from the OSHA Form 300A began on Jan. 2, 2019. The deadline for electronic submissions was March 2.
The final rule regarding submitting injury and illness reports electronically also prohibits employers from discouraging workers from reporting an injury or illness. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the already-required OSHA workplace poster. It also clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.
The flowchart on the following page is useful for determining whether an injury is recordable:
Is an injury recordable?
Records of exposure to potential toxins and related medical records must be kept for the duration of the person’s employment, plus at least 30 years. Employees exposed to potential toxins must be granted access to these records. All medical exams must be treated as confidential and kept separately from the employee’s general personnel file.
The OSH Act has two sources of standards that regulate workplace safety: the General Duty Clause and specific safety standards.
The statute states:
"Each employer shall furnish to each of its employees employment and a place of employment that are free from recognized hazards, which are causing or are likely to cause death or serious physical harm.
If the workplace condition under investigation does not violate a specific safety standard established by OSHA, OSHA will then try to see if it can demonstrate a violation of the General Duty Clause by showing that there was a recognized hazard that was causing or likely to cause serious physical harm. Additionally, even if an employer has not discovered a particular hazard, the hazard may be considered “recognized” for the purposes of the General Duty Clause when its existence and means of correcting it are known in the employer’s industry."
To establish a violation of the General Duty Clause, OSHA must be able to prove:
OSHA has issued hundreds of safety and health standards for specific workplace hazards, which require employers to maintain conditions and practices appropriate to protect employees. For instance, OSHA has issued standards that require employers to provide proper personal protective equipment to employees at no cost, with a few exceptions. The limited exceptions to this statute include ordinary safety-toed footwear ordinary prescription safety eyewear, logging boots and ordinary clothing and weather-related gear. The standards are separated into two categories: construction and general industry.
Employers must familiarize themselves with applicable standards and ensure compliance with such standards. Some examples are listed herein as well as a link to the complete index of applicable regulated subjects.
Employers are encouraged to consult with a Certified Safety Professional (“CSP”) or other qualified safety professional familiar with the employer’s type of work to audit the workplace to see if there are safety hazards and identify possible solutions. This consultation will hopefully yield a safer workplace with fewer injuries and will also demonstrate a commitment to safety that will be viewed positively by OSHA during an inspection and afterwards during the negotiations leading to a resolution if citations for safety violations were issued. Assessments performed by a CSP or safety professional may be discoverable during the litigation process. That said, the consultation should only occur if there is indeed the commitment to correct, on a reasonable basis, the hazards identified by the consultant.
OSHA has issued standards covering a multitude of workplace hazards. Although this list is not intended to be exhaustive, some workplace hazards to which OSHA has issued specific standards include:
The complete index for these specific regulations may be found at:
At the request of an employer, OSHA may grant permission to deviate from the requirements or time frame of a standard by issuing a variance. Variances may be temporary, permanent or experimental, depending on the circumstances. A temporary variance is designed to provide an employer time to come into compliance with the requirements of an OSHA standard subsequent to the effective date of the standard. A permanent variance authorizes an alternative to a requirement to an OSHA standard as long as the applicant’s employees are provided with employment and a safe and healthy workplace. An experimental variance may be issued when OSHA determines that an experiment is designed to demonstrate or validate new and improved technology to protect employees.
Employers must meet specific requirements in order to ask OSHA for a variance. For instance, where a temporary variance is sought from a newly issued standard, the employer must demonstrate that it cannot fully comply with the effective date due to a shortage of materials, equipment or technical or professional personnel. Where a permanent variance is sought from the requirements of a standard, the employer must demonstrate that its alternatives provide employees with protection at least as effective as the protection provided by the standard.
If any of the chemicals used in the workplace are on OSHA’s hazardous chemical list, then the employer must meet OSHA’s hazard communication standard. Employers are required to train their workers who may be exposed to hazardous chemicals (under normal operating conditions or in foreseeable emergencies) on the label elements and the safety data sheets format. The purpose of this training requirement is to ensure workers have enough information to protect themselves from chemical hazards. Many businesses are surprised to find themselves on the list through their cleaning products. For instance, companies that use ammonia, bleach, lime-a-way or most stainless steel cleaners would fall within the standard’s scope. Hence, this standard applies to most businesses. Under the standard, an employer must develop a written hazard communication program, maintain safety data sheets, meet certain labeling requirements and give employees hazard communication training.
Employers are required to have updated alternative workplace labeling and hazard communications programs in place, as needed. Additionally, training programs are required for any newly identified physical or health hazards. Details on the hazard communications requirements are provided on the OSHA website at:
and a fact sheet on specific training requirements can be found at:
In addition to OSHA liability, failure to comply with OSHA standards could be used as evidence of negligent or reckless conduct. Therefore, failure to comply with specific standards could expose employers to civil liability and even criminal liability. When entering into any agreement with OSHA pertaining to the resolution of citations, employers should seek an “exculpatory clause” to be included in the agreement. The clause contains language that the employer and OSHA agree that the contents of the agreement are not applicable in any other proceeding or to be used by any other party. The goal of the clause is to reduce the risk of the language in the agreement being used against the employer as an admission in other lawsuits such as a workers’ compensation or third-party liability claims.
OSHA compliance officers are authorized to conduct on-site inspections and interviews to determine whether an employer is in compliance with the OSH Act. OSHA inspections typically include four stages:
Preparation for an inspection should happen months or years prior to the arrival of an OSHA Inspector on the premises. A thorough and complete commitment to safety will create an environment in which an employer feels prepared during any inspection. It is important to remember the following two points throughout the inspection process:
With these points in mind, the employer should implement a pre-planned response strategy that should be reviewed by and shared with key employees, those who will responsible in the event of an inspection. The response should be planned in such a way so as to reduce the risk of potential citations and fines.
Throughout this entire process, the employer should be sure to let the inspector know that the company is willing to receive input from the inspector because of its complete commitment to safety.
The response plan should include all of the following steps:
Employers are not required to permit interviews with management or supervisory personnel whose remarks are considered binding upon the company. It is extremely important that management and supervisory personnel are accompanied by either the company’s attorney or an HR representative during any interviews with the OSHA inspector. Where employers do not cooperate with requests for interviews and/or records, OSHA may issue subpoenas to compel investigatory interviews and/or production of records.
Violations of the OSH Act subject employers to the risk of civil and criminal penalties. The amount of each penalty is proposed by OSHA and depends on the nature of the corresponding violation. Additionally, the Department of Justice may bring a criminal action against an employer in cases of willful violations leading to death and in cases of specific misconduct in dealing with OSHA. Employees are not subject to penalties for violations of the OSH Act. Rather, employers are responsible for ensuring employee compliance.
OSHA is authorized to propose penalties for violations of standards, regulations or of the general duty to provide a workplace free of recognized hazards. The amount of a penalty varies depending on the nature of the violation and may be reduced from the statutory maximum depending on the circumstances. Penalty amounts are adjusted annually for inflation each January. Violations and the corresponding penalties fall into the following general categories under the OSH Act.
Example 1 - Where a standard allows 12 inches as the maximum distance between ladder rungs and a ladder is discovered to rungs that are 13 inches apart.
Example 2 - Where a standard requires a mechanical press be inspected and tested at least weekly but the machinery is seldom used, inspection and testing prior to each use will suffice and is adequate to meet the intent of the standard.
Example - A Clorox bleach bottle is missing its label in a wet room in a manufacturing plant. It was not removed but simply fell off due to the wet conditions in the room, which must be hosed down daily. It is on a shelf next to three other bottles of the same common, household product whose labels are intact. It is obvious that it is a bottle of the same product to the average observer and so would not likely cause serious harm. OSHA agrees to issue the violation as “other-than-serious.”
Example - An employee is working on scaffolding high in the air without being “tied off” and with some railings missing.
Example - The employer is aware that carbon monoxide (CO) leaks out of its combustion chamber from time to time near where employees work, that the level of CO it is emitting exceeds OSHA’s allowable limits and that carbon monoxide is hazardous. Workers have gotten nauseous and lightheaded from working in that area and have reported their symptoms to the employer. The employer intends to fix the hazard, but a great deal of time passes and the employer never quite gets around to doing anything about it. The violation may be classified as willful because the employer knew about the hazard and failed to remedy it.
Example - OSHA standard requires machine guards on all stationary machines with rotating saw blades. Employer is cited in 2017 for failing to have machine guard on one of its table saws. Two years later, employer is cited for repeat violation of the machine guard standard because it failed to have machine guard on one of its table saws in another facility.
For serious violations and posting violations, OSHA must impose a civil penalty against the employer. For willful violations, OSHA must impose a penalty of not less than $ $9,639for each violation.
For non-serious violations, OSHA has the discretion not to assess a penalty against the employer. Indeed, OSHA has defined certain circumstances where no penalty will be assessed for a non-serious violation. OSHA has the same discretion for repeated violations and failure to correct violations, but, as a practical matter, will almost always impose a civil penalty
OSHA may reduce the amount of a penalty depending on the circumstances. Additionally, OSHA will not propose a penalty in situations where the penalty is reduced to below $100.
The factors used by OSHA to reduce penalties are:
The OSH Act authorizes criminal penalties, including fines and jail time, for:
Criminal convictions under the OSH Act carry up to six months of imprisonment for a first offense or up to one year for subsequent offenses.
Periodically, OSHA issues a list of the top 10 most frequently violated standards following inspections of worksites by its personnel. OSHA publishes this list to alert employers about these commonly cited standards so they can take steps to find and fix recognized hazards addressed in these and other standards before OSHA shows up. For the fiscal year ending September 30, 2018, the top 10 list of violations was:
It is quite common that the violation observed by the inspector can be fixed or abated right then and there (for instance, coil the hose thought to be a tripping hazard, put a cover on to an electrical panel, etc.). If the employer can fix the situation immediately – do it. At the closing conference, there is often discussion about what the inspector thinks were violations and possible corrections or abatements. Abatements with abatement dates may also be mentioned in the citation, which can be issued anytime within the six months following the closing conference.
Promptly after the closing conference and again promptly after the receipt of the citation, employers should evaluate whether to complete the abatements. Completing abatements is essentially an admission that there was a problem but not necessary an admission of a violation of a standard. It is also further evidence of a commitment to safety and may be helpful in resolving the citation at the informal conference discussed herein.
If an employer generally agrees with the citation but cannot meet the abatement deadline in the citation, the employer can file a petition for modification of the abatement, which must be filed in writing with the area director no more than one working day after the original abatement date; late filed petitions must include a statement explaining the exceptional circumstances that resulted in the late filing.
If an employer disagrees with some aspect of an OSHA citation, it can invoke an appeal process to challenge the citation by filing a “notice of contest” within 15 working days from the date the employer receives the citation. There is no specific format for the notice of contest and a letter to the Region 8 area office and/or the address listed on the citation is adequate. The employer should be very careful to ensure that the office receives the letter within the deadline. The letter should state that the company is contesting both the citation and the proposed fine so that it is not deemed to have waived an argument about the fine. The letter may be withdrawn at any time while the informal process is underway. With any settlement resolution, the employer should try to be certain that the settlement agreement includes what is called an “exculpatory clause.” The clause contains language that the employer and OSHA agree that the contents of the agreement are not applicable in any other proceeding or to be used by any other party. The goal of the clause is to reduce the risk of the language in the agreement being used against the employer as an admission in other lawsuits such as a workers’ compensation or third-party liability claims.
During the 15 working day period, the employer can request an informal conference with the area director, in an effort to reach a compromise on the citations before proceeding to litigation. The informal conference will generally be conducted at an OSHA office. This informal conference is the employer’s opportunity to show why the citation is not factually or legally correct. In developing its response, the employer should be mindful that OSHA needs to prove that the work condition cited constituted a significant risk of actual harm to its employees, not a theoretical possibility. At the informal conference, employers should present in an organized and understandable way why the inspector was incorrect in how he/she understood the situation of the risk of harm. Employers should emphasize the abatement efforts and costs of abatement that were undertaken and completed before the citation was issued and again before the informal conference was started. After the facts are reviewed, there will be a negotiation over which violations are still maintained, which are dropped, modififed, and what the proposed penalties will be based on the new information received.
If no compromise is reached (or if the employer decides to forego the informal conference), the employer must file the written notice of contest to commence the appeal process. Once the notice of contest is filed, OSHA refers the matter to the Office of Solicitor for the U.S. Department of Labor (DOL) and to the Occupational Safety and Health Review Commission (OSHRC) – the tribunal that adjudicates the contested citation. The case proceeds through an administrative litigation process that provides for most of the usual civil discovery options and concludes with a hearing much like a trial before an administrative law judge (ALJ) who will decide the case. The ALJ’s decision is subject to review by the OSHRC (if requested) and the ALJ’s decision can be appealed to the Tenth Circuit Court of Appeals in Denver.
Settlement continues to be an option at all times during this process.
Employers may raise defenses to citations, penalties, abatement deadlines and methods of abating violations. When challenging an alleged violation, the employer should raise all applicable defenses.
The following list describes some of the defenses commonly asserted by employers in response to OSHA citations:
Incidents of workplace violence create potential liability exposure for employers. Employers may also suffer significant costs resulting from lost productivity. Thus, it is prudent for employers to take preventative steps to minimize the risk of violence in their place of work. This section outlines the various risks of liability presented by workplace violence and various strategies to minimize incidents of workplace violence.
OSHA has not issued any regulations specifically addressing workplace violence. The agency considers workplace violence a hazard and has issued guidelines aimed at reducing workplace violence. OSHA may rely on these guidelines to issue citations for incidents of workplace violence under the General Duty Clause.
The following are some of these OSHA issued guidelines aimed at minimizing violence in the workplace:
OSHA recommends that employers educate workers to the risks of workplace violence and the specific policies and procedures in place to minimize these risks.
Employers should maintain records of incidents of violence and compliance with violence reduction programs for five years from the calendar date to which these records relate.
Although OSHA has not issued regulations dealing specifically with workplace violence, some groups have urged the agency to create such regulations. Therefore, OSHA may issue regulations specifically dealing with workplace violence in the near future.
Policies and Forms
Chapter 30: Safety and health