Illinois’ 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.
Illinois does not have a state version of the federal OSH Act that is applicable to private-sector employers, which are governed exclusively by federal OSHA regulations. Public sector employers in Illinois are governed by the OSH Act and state law variants, though here the federal regulations are administered and enforced by the Illinois Department of Labor (IDOL). In addition, IDOL provides consulting services to private and public employers alike to assist them in eliminating workplace hazards and meeting OSHA requirements.
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:
- state and local government employers
- the self-employed
- farmers who do not employ workers outside of their immediate family.
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:
- mining workers
- certain truckers and transportation workers
- atomic energy workers.
Multi-employer workplace liability
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 four circumstances where an employer may be held liable under the multi-employer worksite doctrine:
- The employer causes the hazardous condition that violates the OSHA standard (creating employer).
- The employer’s own employees are exposed to the hazard (exposing employer).
- The employer is engaged in a common undertaking on the same worksite as the exposing employer and is responsible for correcting a hazard (correcting employer).
- The employer has general supervisory authority over the worksite, by contract or by the exercise of control in practice, including the power to correct safety and health violations itself or to require others to correct them (controlling employer).
Of these four categories of employers who may be liable for an OSHA 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:
- the scale of the project
- the nature and pace of the work, including the frequency with which the number or types of hazards change as the work progresses
- the controlling employer’s knowledge about the safety history and safety practices of the employer it controls and about that employer’s level of expertise.
More frequent inspections are typically needed if the controlling employer knows that the other employer has a history of non-compliance, 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 non-compliance with safety and health requirements coupled with regular job site safety meetings and safety training.
Employers affiliated with a multi-employer worksite should take steps to limit their OSHA liability for injuries on the worksite. Suggested steps include the following:
- drafting unambiguous contract provisions that clearly allocate responsibility for safety and health compliance at the worksite
- investigating the safety and health history and competence of other employers at the worksite
- routinely inspecting the worksite to ensure OSHA compliance and immediately correcting any potential hazards
- implementing an effective system for promptly correcting hazards (designating a specific individual employed by the contractor to address and resolve safety issues)
- enforcing the contractor’s compliance with safety and health requirements with an effective, graduated system of enforcement (a system that provides for warning, penalties, and, ultimately, termination of the contract for safety violations) and follow-up instructions.
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 responsible for all of the following under the OSH Act:
- meeting the general duty responsibility to provide a workplace free from recognized hazards
- keeping workers informed about OSHA safety and health matters with which they are involved
- complying in a responsible manner with standards, rules, and regulations listed under the OSH Act
- familiarizing themselves with mandatory OSHA standards
- making copies of standards available to employees upon request
- evaluating workplace conditions
- minimizing or eliminating potential hazards
- cooperating with OSHA compliance officers
- not discriminating against employees who properly exercise their rights under the OSH Act
- reducing the number of citations within the prescribed period
- providing employees safe, properly maintained tools and equipment, including personal protective equipment, and making sure that employees use this protective equipment
- warning employees of potential hazards
- establishing and updating operating procedures and communicating these operating procedures to employees
- providing medical examinations when required
- providing the training required by OSHA standards
- complying with OSHA recordkeeping and reporting requirements (detailed in the next section)
- posting the OSHA “It’s The Law” poster at a prominent location within the workplace (a copy of this poster is provided in Appendix B)
- posting OSHA citations and notices that any safety or health hazard or violation has been corrected (abatement verification notices) at or near the worksite involved
- providing employees, former employees, and their representatives access to the Log of Work-Related Occupational Injuries and Illnesses
- providing employees access to employee medical records and exposure records.
Recordkeeping and reporting requirements
All 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. Effective January 1, 2015, different categories of employers (with eleven or more employees) who were previously exempt from injury and illness recordkeeping requirements will now need to maintain these records. Industries now required to keep records include, among others, automobile dealers, property managers, lessors of commercial and residential buildings, bakers and family service organizations. Smaller employers, however, must report any occupational fatalities or catastrophes that occur in their establishments to OSHA, and they must participate in government surveys if they are asked to do so.
Reporting fatalities and multiple hospitalizations
Within eight hours of the death of an employee from a work-related incident or the in-patient hospitalization of three or more employees as a result of a work-related incident, the employer must report the fatality or hospitalization by telephone to the nearest OSHA Area Office or by calling the OSHA toll free central reporting number 1-800-321-OSHA. Employers are required to report the following incidents within 24 hours from when they occur:
- in-patient hospitalizations for care or treatment of one-or-more employees as a result of a work-related incident
- amputations or the loss of an eye as a result of a work-related incident.
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. Specifically, fatalities that occur within 30 days of an incident need to be reported. In-patient hospitalizations, amputations or eye-loss injuries that occurred within 24 hours of a work-related incident need to be reported as well. For each fatality or multiple hospitalization incident, the employer must provide OSHA with all of the following information:
- the name of the company
- the location of the incident
- the time of the incident
- the number of fatalities or hospitalized employees
- the names of any injured employees
- the company contact person and his or her phone number
- a brief description of the incident.
In addition to reporting fatalities and multiple hospitalization incidents, the employer must also prepare and maintain records of “recordable” injuries and illnesses. An injury or illness is “recordable” and records must be kept if:
- the incident is work-related
- the incident is a new case
- the incident meets one of the following criteria:
- the incident results in death
- days away from work
- restricted work or transfer to another job
- medical treatment beyond first-aid
- loss of consciousness
- the incident involves a significant injury or illness diagnosed by a physician or – other licensed healthcare professional
- the incident is a needle stick injury or cut from a sharp object that is – contaminated with another person’s blood or other potentially infectious material
- the injured employee is medically removed under the medical surveillance requirements of an OSHA standard
- the employee suffers from hearing loss
- the employee has been exposed to and is subsequently infected with tuberculosis within the workplace.
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.
Employers are required to record all COVID-19 cases that are confirmed by at least one positive test, are work-related and that cause employees to seek medical treatment beyond first aid, result in lost workdays or restrict duty or cause loss of consciousness or death.
Electronic reporting of recordable injuries
Beginning on December 1, 2017, establishments with 250 or more employees must electronically submit their OSHA-required injury and illness recordkeeping forms (Forms 300, 300A and 301) to OSHA on an annual basis. Establishments in certain high-risk industries with 20 or more employees, but less than 250, must electronically submit information from their OSHA annual summary (Form 300A) on an annual basis. Beginning in 2019 and every year thereafter, covered establishments must submit this information annually by March 2. Employers also must electronically submit information to OSHA upon request.
OSHA plans to post the company-specific injury and illness data it collects on its public website and will use this data to target certain employers for inspections. OSHA does not intend to post information that would identify individual employees. Furthermore, the published data will be partially restricted by the Freedom of Information Act and certain provisions within Part 1904.
Example - OSHA will use Freedom of Information Act (FOIA) Exemptions 6 and 7(c) to withhold certain personally identifiable information and § 1904.29(b)(6) requires employers to withhold employee names for injuries and illnesses classified as “privacy concern cases.”
These requirements have been subject to legal challenge and delay. Employers should consult with legal counsel to confirm applicable requirements.
OSHA encourages employers to promote employer safety incentive policies that encourage workplace injury reporting.
Example 1 - According to OSHA, a policy that rewards workers for recommending safety improvements throughout a facility may improve workplace safety without discouraging reporting.
Other policies, however, in OSHA’s view, may deter workplace injury reporting.
Example 2 - Workers who report an OSHA-recordable injury might be excluded from periodic prize drawings. Or, an employer might provide a cash bonus to a team of employees if no one on the team is injured for a certain amount of time.
Out of stated concerns that employers may discourage reporting by employees of their occupational injuries and illnesses, OSHA amended the recordkeeping regulations with certain anti-retaliation provisions, which include all of the following:
- Requiring employers to inform employees of their right to report work-related injuries and illnesses (See the “It’s the Law” poster provided in Posting requirements)
- Requiring that an employer’s procedure for reporting work-related injuries and illnesses be reasonable and not deter or discourage employees from reporting; and
- Prohibiting retaliation against those who report work-related injuries or illnesses.
With respect to injury and illness reporting, a significant requirement that employers must address is that employers may not automatically test employees for drug and alcohol use in response to a report that an employee has been injured on the job. Also, employers may not discipline employees who fail to comply with a requirement that all work-related injuries must be reported “immediately” or by the end of a shift.
Exposure to toxic materials
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
- specific standards.
The General Duty Clause
The statute states:
Each employer shall furnish to each of its 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.
If the workplace condition under investigation does not violate a specific safety standard established by OSHA (see herein) OSHA will then try to see if it can demonstrate a violation of the General Duty Clause; was there a recognized hazard that was causing or is likely to cause serious physical harm. Additionally, even if an employer has not discovered a particular hazard, the hazard is 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.
The specific standards
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.
Example: 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.
Employers must familiarize themselves with applicable standards and ensure compliance with such standards. Some examples are listed as well as a link to the complete index of applicable regulated subjects.
Employers are encouraged to consult with a Illinois industrial hygienist 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 work place 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. 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.
Examples of specific subjects regulated
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:
- toxic substances
- harmful physical agents
- electrical hazards
- machine hazards
- fall protection
- workplace sanitation
- blood-borne pathogens
- equipment, tool, and machine guarding
- hazardous waste
- infections diseases
- fire and explosion hazards.
Variances to the standards
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. 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.
In addition to OSHA liability, failure to comply with OSHA standards could be used as evidence of negligent or reckless conduct. Thus, 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, see below.
Responding to COVID-19
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:
- Facilitate employees getting vaccinated. It is suggested that employers grant paid time off for employees to get vaccinated and recover from any side effects or consider working with local public health authorities to provide vaccinations in the workplace for unvaccinated workers. OSHA further suggests that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and social distancing – if they remain unvaccinated.
- Instruct any workers who are infected, unvaccinated workers who have had close contact with someone who tested positive for SARS-CoV-2, and all workers with COVID-19 symptoms to stay home from work to prevent or reduce the risk of transmission of the virus that causes COVID-19.
- Implement physical distancing in all communal work areas for unvaccinated and otherwise at-risk workers. A key way to protect such unvaccinated workers is to physically distance them from other such people (workers or customers) – generally at least six feet of distance is recommended, although this is not a guarantee of safety, especially in enclosed or poorly ventilated spaces.
Employers might also consider limiting the number of unvaccinated or otherwise at-risk workers in one place at any given time, for example by implementing flexible worksites (e.g., telework); implementing flexible work hours (e.g., rotate or stagger shifts to limit the number of such workers in the workplace at the same time); delivering services remotely (e.g., phone, video or web); or implementing flexible meeting and travel options, for such workers.
- Provide workers with face coverings or surgical masks,4 as appropriate, unless their work task requires a respirator or other PPE. In addition to unvaccinated and otherwise at-risk workers, CDC recommends that even fully vaccinated people wear masks in public indoor settings in areas of substantial or high transmission and notes that fully vaccinated people may appropriately choose to wear masks in public indoor settings regardless of community level of transmission, particularly if they are at risk or have someone in their household who is at risk or not fully vaccinated.
Workers should wear a face covering that covers the nose and mouth to contain the wearer's respiratory droplets and to help protect others and potentially themselves. Face coverings should be made of at least two layers of a tightly woven breathable fabric, such as cotton, and should not have exhalation valves or vents. They should fit snugly over the nose, mouth and chin with no large gaps on the outside of the face.
OSHA recommends employers provide face coverings to workers who request them at no cost (and make replacements available to workers when they request them). Under federal anti-discrimination laws, employers may need to provide reasonable accommodations for any workers who are unable to wear or have difficulty wearing certain types of face coverings due to a disability or who need a religious accommodation under Title VII of the Civil Rights Act. In workplaces with employees who are deaf or hard of hearing, employers should consider acquiring masks with clear coverings over the mouth to facilitate lip-reading.
For operations where the face covering can become wet and soiled, employers are encouraged to provide workers with replacements daily or more frequently, as needed. Face shields may be provided for use with face coverings to protect them from getting wet and soiled.
Employers with workers in a setting where face coverings may increase the risk of heat-related illness indoors or outdoors or cause safety concerns due to introduction of a hazard (for instance, straps getting caught in machinery) may wish to consult with an occupational safety and health professional to help determine the appropriate face covering/respirator use for their setting.
- Educate and train workers on your COVID-19 policies and procedures using accessible formats and in languages they understand. Train managers on how to implement COVID-19 policies. Communicate supportive workplace policies clearly, frequently, and via multiple methods to promote a safe and healthy workplace. Communications should be in plain language that unvaccinated and otherwise at-risk workers understand (including non-English languages, and American Sign Language or other accessible communication methods, if applicable) and in a manner accessible to individuals with disabilities. Training should be directed at employees, contractors, and any other individuals on site, as appropriate, and should include:
• basic facts about COVID-19, including how it is spread and the importance of physical distancing (including remote work), ventilation, vaccination, use of face coverings, and hand hygiene
• workplace policies and procedures implemented to protect workers from COVID-19 hazards.
In addition, ensure that workers understand their rights to a safe and healthful work environment, whom to contact with questions or concerns about workplace safety and health, and their right to raise workplace safety and health concerns free from retaliation. (See Implementing Protections from Retaliation, below.) This information should also be provided in a language that workers understand. Ensure supervisors are familiar with workplace flexibilities and other human resources policies and procedures.
- Suggest or require that unvaccinated customers, visitors or guests wear face coverings in public-facing workplaces such as retail establishments, and that all customers, visitors, or guests wear face coverings in public, indoor settings in areas of substantial or high transmission. This could include posting a notice or otherwise suggesting or requiring that people wear face coverings, even if no longer required by your jurisdiction. Individuals who are under the age of two or are actively consuming food or beverages on site need not wear face coverings.
- Maintain ventilation systems. The virus that causes COVID-19 spreads between people more readily indoors than outdoors. Improving ventilation is a key engineering control that can be used as part of a layered strategy to reduce the concentration of viral particles in indoor air and the risk of virus transmission to unvaccinated and otherwise at-risk workers in particular. A well-maintained ventilation system is particularly important in any indoor workplace setting and when working properly, ventilation is an important control measure to limit the spread of COVID-19. Adequate ventilation will protect all people in a closed space. Key measures include ensuring heating, ventilation and air conditioning (HVAC) systems are operating in accordance with the manufacturer’s instructions and design specifications, conducting all regularly scheduled inspections and maintenance procedures, maximizing the amount of outside air supplied, installing air filters with a Minimum Efficiency Reporting Value (MERV) 13 or higher where feasible, maximizing natural ventilation in buildings without HVAC systems by opening windows or doors, when conditions allow (if that does not pose a safety risk), and considering the use of portable air cleaners with High Efficiency Particulate Air (HEPA) filters in spaces with high occupancy or limited ventilation.
- Perform routine cleaning and disinfection. If someone who has been in the facility within 24 hours is suspected of having or confirmed to have COVID-19, follow the CDC cleaning and disinfection recommendations. Follow requirements in mandatory OSHA standards 29 CFR 1910.1200 and 1910.132, 133, and 138 for hazard communication and PPE appropriate for exposure to cleaning chemicals.
- Record and report COVID-19 infections and deaths.
- Follow other applicable mandatory OSHA standards: All of OSHA's standards that apply to protecting workers from infection remain in place. These mandatory OSHA standards include: requirements for PPE (29 CFR part 1910, Subpart I (e.g., 19132 and 133)), respiratory protection (29 CFR 19134), sanitation (29 CFR 19141), protection from bloodborne pathogens: (29 CFR 191030), and OSHA's requirements for employee access to medical and exposure records (29 CFR 191020). Many healthcare workplaces are covered by the mandatory OSHA COVID-19 Emergency Temporary Standard. More information on that standard is available on OSHA's website at:
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.
Workplaces with mixed-vaccination status workers
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:
• Close contact – where unvaccinated and otherwise at-risk workers are working close to one another, for example, on production or assembly lines or in busy retail settings. Such workers may also be near one another at other times, such as when clocking in or out, during breaks, or in locker/changing rooms.
• Duration of contact – where unvaccinated and otherwise at-risk workers often have prolonged closeness to coworkers (e.g., for six to 12 hours per shift).
• Type of contact – where unvaccinated and otherwise at-risk workers may be exposed to the infectious virus through respiratory particles in the air – for example, when infected workers in a manufacturing or factory setting cough or sneeze, especially in poorly ventilated spaces.
In all workplaces with heightened risk due to workplace environmental factors where there are unvaccinated or otherwise at-risk workers in the workplace:
• Stagger break times in these generally high-population workplaces, or provide temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk workers congregating during breaks. Such workers should maintain at least 6 feet of distance from others at all times, including on breaks.
• Stagger workers' arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk workers in parking areas, locker rooms, and near time clocks.
• Provide visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing.
• Require unvaccinated or otherwise at-risk workers, and also fully vaccinated workers in areas of substantial or high community transmission, to wear masks whenever possible, encourage and consider requiring customers and other visitors to do the same.
• Implement strategies (tailored to your workplace) to improve ventilation.
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:
• Ask customers and other visitors to wear masks, especially in areas of substantial or high transmission.
• Consider ways to promote physical distancing between unvaccinated or otherwise at-risk people and/or limiting occupancy to allow for physical distancing consistent with CDC guidance.
• Move the electronic payment terminal/credit card reader farther away from unvaccinated and otherwise at-risk workers in order to increase the distance between customers and such workers if possible.
• Adjust stocking activities to limit contact between unvaccinated and otherwise at-risk workers and customers.
Unvaccinated or otherwise at-risk workers are also at risk when traveling to and from work in employer-provided buses and vans.
• Notify unvaccinated and otherwise at-risk workers of this risk and, to the extent feasible, help them limit the number of such workers in one vehicle.
• Make sure all unvaccinated and otherwise at-risk workers sharing a vehicle are wearing appropriate face coverings. Make sure all workers wear appropriate face coverings in areas of substantial or high community transmission.
• Where not prohibited by weather conditions, open vehicle windows.
In meat, poultry and seafood processing settings; manufacturing facilities; and assembly line operations (including in agriculture) involving unvaccinated and otherwise at-risk workers:
• Ensure adequate ventilation in the facility, or if feasible, move work outdoors.
• Space such workers out, ideally at least six feet apart, and ensure that such workers are not working directly across from one another. Barriers are not a replacement for worker use of face coverings and physical distancing.
• If barriers are used where physical distancing cannot be maintained, they should be made of a solid, impermeable material, like plastic or acrylic, that can be easily cleaned or replaced. Barriers should block face-to-face pathways and should not flap or otherwise move out of position when they are being used.
• Barriers do not replace the need for physical distancing – at least six feet of separation should be maintained between unvaccinated and otherwise at-risk individuals whenever possible.
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:
• Prevent Worker Exposure to Coronavirus (COVID-19). (March 2020).
• Retail Workers (April 8, 2020).
• Package Delivery Workforce (April 13, 2020).
• Manufacturing Industry Workforce (April 16, 2020).
• Construction Workforce (April 21, 2020).
• Restaurants & Beverage Vendors Offering Takeout or Curbside Pickup (May 1, 2020).
• Dental Practitioners (May 11, 2020).
• Retail Pharmacies (May 14, 2020).
• Rideshare, Taxi, and Car Service Workers (May 14, 2020).
• Nursing Home and Long-Term Care Facility Workers (May 14, 2020).
• Social Distancing at Work (May 28, 2020).
• Stockroom and Loading Dock Workers (June 2, 2020).COVID-19 Guidance for Hair and Nail Salon Workers (August 18, 2020).
• COVID-19 Guidance for Food Truck Workers (August 18, 2020).
• COVID-19 Guidance for In-Home Repair Services (October 7, 2020).
• COVID-19 Guidance for Restaurants Resuming Dine-In Service (October 7, 2020).
• COVID-19 Guidance on Ventilation in the Workplace (November 4, 2020).
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:
- presentation of inspector credentials
- opening conference explaining the reason for the inspection as well as the purpose, scope, and procedure of the inspection
- inspection walk-around
- closing conference discussing hazardous conditions and potential violations in the workplace as well as informing the employer of its rights and obligations.
Preparing for and responding to an inspection
Preparation for an inspection should happen months or years prior to the arrival of an OSHA inspector on the premises. Remember, a thorough and complete commitment to safety creates an environment in which any inspection is stress-free for the employer. It is important to remember the following two points throughout the inspection process:
- The inspection is essentially adversarial; OSHA is combing the worksite to look for safety hazards that violate either a specific safety regulation or the General Duty Clause.
- The employer will be viewed with the most sympathy if the representatives of the employer remain polite, respectful and cooperative throughout the investigation.
With these points in mind, the employer should implement a pre-planned response strategy which 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 welcoming of the safety review because of its complete commitment to safety. The response plan should include all of the following steps:
- Plan on whether to allow OSHA to enter without a warrant. OSHA may only legally enter the premises with a warrant in order to perform a search. OSHA rarely arrives with a warrant, so the employer must decide whether to require the inspector to obtain a warrant before entering the premises. If the employer decides to make OSHA obtain a warrant, they will almost certainly do so. Thus, in order to remain, “polite, respectful and cooperative” it is a good idea to allow the inspectors to enter the premises when they initially ask to do so. Forcing OSHA to get a warrant may alienate the inspector.
- Plan on where to take the inspector in order to politely ask him or her to define the purpose, scope, and procedure of the inspection. A private room nearest the entrance is a good location. During this initial meeting, come to an agreement as to which areas will be viewed, and then outline the paths to those areas.
- If the inspector requests documents, like the OSHA logs, bring copies to him or her to review. Do not take him or her to the place where the logs are maintained. The plan should be that the inspector sees as little of the premises and as few of the employees as possible.
- Plan to have several trained responders act as the employer’s representatives during the entire inspection. The inspector should never be unaccompanied while on the premises. The citations will involve work conditions observed by the inspector, thus the employer’s selected employees who are responsible in the event of an inspection, need to know exactly what the inspector saw in order to respond to any potential citations.
- Plan to have those selected employee(s) keep a detailed log of the times and routes of the inspection. If the inspector takes a photo or video of something, those selected employee(s) should try to immediately replicate the photo or video. It is recommended that the selected employees(s) have a hand-held Dictaphone into which he or she can narrate what is happening, which can then be typed up later so that the employer knows exactly what occurred during the inspection.
- During inspections, inspectors are allowed to question hourly employees without a representative of the employer present. It is permissible to inform the employee that he or she does not have to agree to the interview with the inspector. However, it is a judgment call as to whether to inform the employee of this during the inspection since doing so will not seem “polite, respectful and cooperative” to the inspector. The inspector may see it as intimidating the employee or interfering with the inspection.
- After the inspector completes his or her interview, the employee(s) who are responsible during inspections should meet with the interviewed employee and ask if that employee will repeat what he or she said to the inspector. The employee should be told that he does not have to share the information but that the employer simply wants to know what the inspector knows in order to be able to respond to any citations as thoroughly as possible.
The inspector may not ask for private 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 depositions 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 penalty for violations of the OSH Act. Rather, employers are responsible for ensuring employee compliance.
It is quite common that the violation observed by the inspector can be fixed or abated right then and there
Example - The employer may coil a hose thought to be a tripping hazard, secure a cover over 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 may be issued anytime within the six months after the closing conference.
Promptly after the closing conference and again promptly after the receipt of the citation, employers should evaluate whether to complete abatements. Completing abatements is essentially an admission that there was a problem. However, it is also 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 may file a petition for modification of abatement, which must be filed in writing with OSHA’s area director no more than one working day after the original abatement date.
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. Violations and the corresponding penalties fall into six general categories under the OSH Act.
- Other-than-serious - This category includes violations that probably would not cause death or serious physical harm but do have a direct relationship to job safety and health. Each other-than-serious violation may carry a penalty of up to $15,625.
- Serious - This category includes violations with a substantial probability of death or serious injury where the employer knew or should have known of the hazard. Each serious violation may carry a penalty of up to $15,625.
- Willful - This category includes violations that the employer intentionally and knowingly commits as well as violations committed with a plain indifference to the law. A violation is committed with plain indifference to the law where an employer is aware of a hazard but makes no reasonable efforts to eliminate the hazard. Each willful violation may carry a penalty of up to $156,259 with a minimum penalty of $15,625. Additionally, a willful violation resulting in the death of an employee may expose an employer to criminal liability.
- Repeated - This category includes violations when OSHA finds a substantially similar violation upon re-inspection. However, citations under contest may not form the basis for a subsequent repeated citation. Each repeated violation may carry a penalty of up to $156,259.
- Failure to correct cited violations - This category applies where employers fail to correct cited violations by the deadline (the abatement deadline). Each violation 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.
Amount of 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 size of the employer’s business
- the employer’s good faith as determined by efforts to comply with the OSH Act, such as cooperation with OSHA personnel, quality of safety programs and diligence in correcting hazards
- the employer’s history of previous violations
- the gravity of the violation when the alleged violation is serious as determined by the number of employees exposed to the hazard, the frequency and duration of these exposures and the risk of death or serious injury.
It is not expressly stated in the public information issued by OSHA as a consideration for reducing penalties but a material consideration in OSHA’s analysis is the perspective of the employees on the commitment of safety by the Employer. Employee or union representatives advocating for the employer in response to the citations can be very effective.
The OSH Act authorizes criminal penalties, including fines and jail time, for any and all of the following offenses:
- willful violations leading to death
- falsifying records, reports or applications
- interfering with a compliance officer in the performance of his duties.
Criminal convictions under the OSH Act carry up to six months of imprisonment.
Contesting a citation
If an employer disagrees with some aspect of an OSHA citation, it may invoke an appeal process to challenge the citation by filing a “notice of contest” within 15 days of the date the employer receives the citation. There is no specific format for the notice of contest and a letter to OSHA’s area office is adequate. The employer should ensure that the letter is received by the office within the deadline. The letter should state that the employer is contesting both the citation and the proposed 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 language in the agreement being used as an admission in other lawsuits such as a workers’ compensation or third-party liability claims.
The informal conference
During the 15-day period, the employer may 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. The informal conference is the employer’s opportunity to show that the citation is not factually or legally correct. In developing this 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, exactly how the inspector was incorrect in how he or 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 after the citation was received. After the facts are reviewed, there will be a negotiation regarding which violations (if any) will be upheld, which (if any) will be dropped and what the proposed penalties will be based on the new information received.
The formal process
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 may be appealed to the Seventh Circuit Court of Appeals. 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 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 minimus 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, and 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 non-compliance resulted from employee misconduct. In order to use this defense, the employer must establish that the employee did not follow previously established and enforced work rules or otherwise acted in an unpredictable, idiosyncratic manner. Additionally, the employee’s misconduct must be reasonably unanticipated, meaning that the employer must have a record of disciplining previous violators. Ultimately, employers must demonstrate rigorous enforcement of safety rules and adequate employee safety training to assert the employee misconduct defense.
- A citation was not issued within 180 days.
- A citation resulted from an illegal inspection, or OSHA’s evidence of a violation is unconvincing or not credible.
- The employer cited did not create the hazard, had no power to correct it, or had no employees exposed to it.
- OSHA does not have jurisdiction over the condition cited.
Workplace violence regulations
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 recognized hazard and has, however, 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:
Management and employee commitment
OSHA recommends a team-oriented approach incorporating both management and employees into committees aimed at identifying and minimizing risks of violence in the workplace. These committees should consult employees to identify security concerns, report incidents of violence, and recognize escalating situations. In addition, OSHA recommends debriefing and medical/psychological counseling for employees involved in violent incidents. OSHA further recommends that employers create a comprehensive written program to address workplace violence. Such a program should include a zero-tolerance policy for violence and threats, a no-retaliation policy, a procedure for reporting and documenting incidents, and security procedures.
OSHA recommends that employers undertake a thorough analysis of the risks of violence in their place of work. Suggested steps include:
- analyzing prior incidents of violence
- contacting other employers within the industry
- surveying employees
- contacting other employers within the industry
When conducting this type of analysis, employers should keep the following in mind: employers who choose to perform a worksite analysis may expose themselves to potential liability when information obtained through a worksite analysis is not acted upon by the employer.
Hazard prevention and control
Once hazards are identified, OSHA suggests that employers implement mechanisms to prevent and control workplace incidents. Specific hazard prevention and control mechanisms include the installation of alarms and other security devices, as well as administrative procedures for responding to incidents. Employers should implement both immediate response procedures to cool-off escalating situations carefully and long-term response procedures consisting of discipline and investigation.
Safety and health training
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.