Colorado’s private employers are covered by the federal Occupational Safety and Health Act (OSH Act). The federal 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.
Colorado employers doing business in other states outside of Colorado should be aware that some states, including Colorado’s neighbors, Wyoming and Utah, have state OSHA plans. These plans are based on the federal OSH Act, but 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 OSH 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 inpatient hospitalization, amputation or eye loss, employers not excluded from recordkeeping obligations 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.
when they are available.
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 flow-chart on the following page is useful for determining whether an injury is 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.
The standard is not just “general,” it is vague, encompassing, and not especially difficult for OSHA to meet.
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 eye wear, 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 material 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 be 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.
De minimis violations - This category includes violations which have no direct or immediate relationship to safety or health. For violations of this type, no penalty is assessed, and no citation is issued; the employer may receive a notice of de minimis violation.
Other-than-serious violations - This category includes a violation of OSHA’s rules that would probably not cause death or serious physical harm, but which would have some direct, negative relationship to worker health and safety. Each other-than-serious violation may carry a penalty of up to $13,494.
Serious violations - A violation of OSHA’s rules that probably could cause death or serious injury. Each serious violation may carry a penalty of up to $15,625.
Willful violations - To be “willful,” a violation need not be committed with a bad purpose or evil intent. The employer need merely be actively aware that its actions do not properly comply with the act or that a condition hazardous to its employees exists and knowingly or intentionally fails to do anything about it.
Each willful violation may carry a penalty of up to $156,259 with a minimum penalty of $9,639. Additionally, a willful violation, resulting in the death of an employee, may expose employers to criminal liability.
“Repeat” violations - A repeat violation occurs when an employer is found to have violated a standard for which it had been cited at any of its worksites within five years of the date the first citation became a final order or the abatement period ended, whichever is later.
To qualify as repetition, the violation must be a legitimately new violation of the standard. This would not apply if the original violation simply were never abated as required, that would be called a “failure to abate” violation (see below). Each repeat violation may carry a penalty of up to $156,259.
“Failure-to-abate” violations - This category applies where employer fails to correct cited violations by the abatement deadline. Each violation that an employer fails to correct may carry a penalty of up to $15,625 for each day beyond the abatement deadline that the violation is not corrected.
Violating posting requirements - Violations of posting requirements may carry a penalty of up to $15,625.
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 $9,639 for 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, 2021, 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 necessarily 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 or modified 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. Colorado cases are usually handled by DOL counsel located in Denver, that is, the Office of the Solicitor. 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:
No violation - This defense applies when the employer has not violated the applicable standard, general duty, or regulation alleged in a citation.
No hazard - This defense applies when a violation occurs but no hazard resulted from the violation. Accordingly, it applies in situations where either no employee was exposed to the condition, or the employer reasonably had no knowledge of the violation.
De minimis violation - This defense applies when a violation occurs but the violation did not create a hazard or did not otherwise compromise the health and safety conditions of the workplace. Additionally, this defense applies to minor, technical violations of the OSH Act when the employer provided adequate alternative protections. There is no penalty for a de minimis violation.
Defenses related to the applicable standard - An employer may have a defense when the applicable standard violated was ambiguously worded, improperly issued, or non-binding. When challenging the wording of a standard, the wording must be so ambiguous that a reasonable person would not know exactly what type of conduct the standard prohibits. Moreover, a standard is considered non-binding when it amounts to a mere suggestion rather than a requirement.
Feasibility of compliance - An employer may have a feasibility of compliance defense where a standard, regulation, or general duty cannot be met by known, available, or feasible means of compliance. The feasibility of compliance defense also applies where the abatement deadline or method is unreasonable. However, defenses challenging the feasibility of compliance are generally difficult to establish. In order to assert this defense, an employer must demonstrate that it applied all alternative means of correction that are known and feasible. The employer must also demonstrate that it is not lagging behind industry standards of compliance. The cost of compliance is not a feasibility defense except in extreme circumstances.
Employee misconduct - An employer may have a defense where noncompliance resulted from employee misconduct. In order to use this defense, the employer must establish each element of a four-part test:
Under the OSH Act, employers are responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm. On January 29, 2021, the Occupational Safety and Health Administration (OSHA) released updated guidance to assist most employers and workers with implementing a coronavirus prevention program and mitigating the risk of the spread of coronavirus. The guidance titled, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” (Guidance) was prepared to comply with President Biden’s Executive Order issued on January 21, 2021, directing the federal government to take “swift action to reduce the risk that workers may contract COVID-19 in the workplace.” This Guidance was last updated on August 13, 2021.The Guidance is advisory in nature and creates no new legal obligations in the form of an OSHA standard or regulation.
Many of the elements may have already been implemented. Employers should take note of the recommendations, which include:
Employers are also required by the General Duty Clause, Section 5(a)(1) of the OSH Act, to provide a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.
It is recommended that employers should take additional steps to mitigate the spread of COVID-19 among unvaccinated or otherwise at-risk workers due to the following types of workplace environmental factors, especially in locations of substantial or high transmission:
In all workplaces with heightened risk due to workplace environmental factors where there are unvaccinated or otherwise at-risk workers in the workplace:
In high-volume retail workplaces (or well-defined work areas within retail workplaces) where there are unvaccinated or otherwise at-risk workers, customers or other people:
Unvaccinated or otherwise at-risk workers are also at risk when traveling to and from work in employer-provided buses and vans:
In meat, poultry and seafood processing settings; manufacturing facilities; and assembly line operations (including in agriculture) involving unvaccinated and otherwise at-risk workers:
In addition, OSHA has issued alerts in both English and Spanish to provide guidance to the employer community. These are accessible on the OSHA website at:
About the Author
About the Contributors
About the Firm
An HR audit -Snapshot- Colorado
An introduction - feature of the HR Library
Background checks — Colorado
Benefits — Colorado
Celebrating in the workplace — Colorado
Child labor — Colorado
Compliance thresholds — Colorado
Disabilities and reasonable accommodation — Colorado
Disaster planning — Colorado
Discipline — Colorado
Discrimination — Colorado
Diversity, equity and inclusion in the workplace — Colorado
Family and medical leave — Colorado
Federal contractors and affirmative action — Colorado
Health insurance continuation coverage — Colorado
Health insurance portability and privacy — Colorado
Health insurance reform — Colorado
Immigration — Colorado
Independent contractors — Colorado
Marijuana — Colorado
Military leave — Colorado
Other types of leave — Colorado
Pandemic Preparedness — Colorado
Performance evaluations — Colorado
Personnel files — Colorado
Plant closings and mass layoffs — Colorado
Policies and procedures manuals — Colorado
Politics in the workplace — Colorado
Privacy rights — Colorado
Public Employers — Colorado
Recruiting and hiring — Colorado
Restrictive covenants and trade secrets — Colorado
Safety and health — Colorado
Social media — Colorado
Technology and the Internet — Colorado
Telecommuting — Colorado
Temporary, leased and franchise employees — Colorado
Termination — Colorado
Unemployment insurance — Colorado
Unions — Colorado
Wages and hours — Colorado
Whistleblower protections — Colorado
Workers' compensation — Colorado
Workplace harassment — Colorado
Workplace investigations — Colorado
Workplace violence — Colorado