Both federal and Massachusetts laws govern workplace safety and health. The federal Occupational Safety and Health Act (OSH Act) imposes a number of requirements on employers to create a safe workplace. It grants the Occupational Safety and Health Administration (OSHA) the authority to create rules, standards, and regulations to govern workplace safety and health.
In addition to OSHA, the Massachusetts Division of Occupational Safety (DOS) enforces regulations governing certain safety-related aspects of the workplace. These regulations govern worksites that manage asbestos, lead, and other high-risk materials.
The OSH Act broadly covers almost all private-sector employers. On March 9, 2018, the governor of Massachusetts signed into law a statute that makes the OSH Act requirements applicable to public-sector employers.
Certain limited entities are exempt from the OSH Act.
The OSH Act applies to almost all private-sector employers and employees, including religious entities to the extent that the workers perform non-religious work.
The limited exemptions from OSHA coverage include:
The OSH Act applies to almost all private-sector employees. Its coverage includes executives and managers. However, in most circumstances, coverage does not extend to employees whose working conditions are regulated by other provisions of federal law, such as:
In several industries, multiple employers perform work at the same worksite. For instance, a construction project may engage a general contractor and numerous subcontractors at the same worksite. To address safety and health issues at multi-employer worksites, OSHA and the courts apply a doctrine to determine when more than one employer may be cited for an unlawful, hazardous condition at a worksite.
OSHA recognizes four circumstances where an employer may be held liable under this doctrine:
The requirements of a controlling employer have been the focus of most discussion by OSHA and the courts. Significantly, the controlling employer has a lesser duty to exercise reasonable care than an employer that must protect its own employees. Various factors affect how frequently and closely a controlling employer must inspect its 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 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 OSHA liability for injuries on the worksite. These steps include:
Covered employers must adhere to a number of general requirements and specific recordkeeping and reporting requirements to comply with the OSH Act.
Employers are responsible for the following under the Occupational Safety and Health Act:
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. However, smaller employers must report any occupational fatalities or catastrophes to OSHA, and they must participate in government surveys on request.
Within eight hours of either:
the employer must report the fatality or hospitalization by using at least one of the following methods:
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 that it learns of the incident.
For each fatality or multiple hospitalization incidents, the employer must provide OSHA with all the following information:
The employer also must prepare and maintain records of "recordable" injuries and illnesses.
An injury or illness is "recordable" when:
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, the employer must review the injury and illness log to verify its accuracy and summarize it on OSHA Form 300A. A company executive must certify Form 300A and the employer must post it 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. These forms are available at:
An employer should follow these steps in the flowchart that follows to determine whether an injury is recordable.
An employer must maintain records of an employee’s exposure to potential toxins and related medical records for the duration of the individual’s employment, plus at least 30 years. The employer must grant access to these records to employees exposed to potential toxins. If the employer has medical examination documents, the employer must treat the documents as confidential and keep them separately from the employee’s personnel file.
The Occupational Safety and Health Administration (OSHA) issues safety and health standards to address specific workplace hazards. These standards require employers to maintain certain conditions and practices to protect their employees. Employers must familiarize themselves with applicable standards and comply with them. For instance, OSHA has issued standards that require employers to provide proper personal protective equipment (with a few exceptions) to employees at no cost. The limited exceptions to this statute include:
When OSHA does not include specific standards, employers must still comply with the OSH Act’s general duty clause.
OSHA’s standards cover numerous workplace hazards. Some of the common hazards that it regulates include:
The OSH Act’s general duty clause requires employers to “furnish … a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.” Accordingly, employers must maintain safe, hazard-free workplace conditions regardless of whether specific standards apply to it. Even if an employer has not discovered a specific hazard, OSHA considers the hazard “recognized” under this clause when its existence and the means to correct it are known in the employer’s industry.
At the request of an employer, OSHA may grant permission to deviate from the requirements of a standard by issuing a variance. Variances may be temporary, permanent or experimental, depending on the circumstances. A temporary variance is one that provides an employer with time to come into compliance with the requirements of a standard. A permanent variance authorizes an alternative to a standard so long as the employees work in a safe and healthy workplace. OSHA issues experimental variances to employers to demonstrate or validate new and improved technology to protect employees.
Employers must meet specific requirements to obtain a variance from OSHA. For instance, to obtain a temporary variance from a newly-issued standard, the employer must demonstrate that it cannot fully comply with the effective date because of a shortage of materials, equipment or technical or professional personnel. When an employer seeks a permanent variance, it must demonstrate that its alternative protects employees to the same degree as the standard.
Failure to comply with OSHA standards exposes an employer to civil and criminal liability. Not only does noncompliance lead to OSHA liability, a party may use it as evidence of negligent or reckless conduct in a subsequent lawsuit.
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:
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.
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.
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:
• 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:
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:
As noted at the beginning of this chapter, the Massachusetts Division of Occupational Safety (DOS) also enforces state regulations concerning workplace health and safety. The agency’s general mission is to protect workers’ safety, health, wages, and working conditions. In addition to its general health and wage oversight, DOS enforces regulations pertaining to asbestos and lead.
DOS provides a free consultation service to assist employers in recognizing and controlling safety and health hazards in the workplace and improving their safety programs. It also assists employers to train employees and, in some cases, to qualify for a one-year exemption from routine OSHA inspections. The service is jointly funded by DOS and DOL, and targets smaller businesses (those with fewer than 250 employees per establishment or 500 employees nationwide) in high-hazard industries, such as manufacturing, healthcare, and construction. This is a confidential service, in which the employer may provide its name and any information concerning healthy working conditions, and it will not be reported routinely to the OSHA inspection staff.
In addition, DOS administers the Commonwealth’s minimum wage law, and issues prevailing wage schedules to cities, towns, counties, districts, authorities, and agencies for construction projects and other types of public work. The prevailing wage schedules include the hourly wage rates that workers must receive when working on a public project.
The DOS regulates occupational asbestos exposure and lead handling. The agency’s regulations impose a number of requirements on employers that handle these substances.
Massachusetts law requires any entity that handles asbestos or lead to obtain a license. The respective applications require the entity to submit a number of additional documents with the application, including copies of specific policies governing its protection of employees who handle the substances (such as a respirator program in the case of asbestos).
License applications are available at:
In addition to licensing requirements, DOS requires certain asbestos workers become certified by DOS to handle asbestos. These workers requiring certification include:
Any individual that handles asbestos or lead must complete periodic training provided by a certified training provider. The requirements of the training depend on the employee’s position. An individual worker (not a supervisor or trainer), must complete an approved four-day training course which should include:
Any employer that handles asbestos or lead must notify DOS before engaging in certain projects. It must provide this notification at least 10 days before the project starts or, in the case of an emergency project, within one working day after starting.
Any entity that handles asbestos or lead must maintain certain records concerning its employees’ trainings and asbestos notifications, among other things. The entity must make these records available to the Director of DOS upon request. Moreover, in the case of asbestos, the entity must retain these documents for a period of 30 years from the date of project or activity completion. Records related to lead program compliance must be retained for 10 years.
When DOS determines that there is a violation of a workplace standard that compromises the protection of the general public or of workers, or of any standard or requirement for licensure, it may order the worksite to be closed. The worksite may include the area where asbestos-related work is performed and other areas of the facility that DOS determines may be hazardous.
Any entity that violates the asbestos or lead regulations may be subject to a fine of between $500 and $1500 for each offense.
OSHA compliance officers may conduct on-site inspections and interviews to determine whether an employer complies with the OSH Act. During an inspection, an OSHA inspector may privately question hourly employees, however, he or she may not insist on private interviews with management or supervisory personnel. In the event that a manager or supervisor meets with an OSHA inspector, he or she should be accompanied by a witness. When an employer fails to cooperate with a request for interviews or records, OSHA may issue a subpoena to obtain the information.
An OSHA officer typically conducts an inspection without advance notice, but it must conduct it at a reasonable time, in a reasonable manner, and within reasonable time limits. Any individual who gives an employer advance notice of an OSHA inspection may be subject to criminal penalties.
An employer has the right to require an OSHA inspector to obtain a search warrant before entering the workplace. However, a search warrant is easy to obtain and may lead to a more meticulous inspection.
OSHA inspections typically include four steps:
To the extent possible, an employer should prepare for an OSHA inspection. Before an inspection takes place, the employer should decide whether it will require a warrant and who should accompany the inspector on the walk.
Violations of the OSH Act expose employers to the risk of civil and criminal penalties. The amount of each penalty depends on the nature of the corresponding violation. In addition, the Department of Justice may bring a criminal action against an employer for certain, specific misconduct or for willful violations that lead to death.
OSHA has the authority to propose penalties for violations of the OSH Act. OSHA determines the amount of the penalty based on the nature and circumstances of the violation. Violations and the corresponding penalties fall into six general categories:
OSHA may reduce the amount of a penalty depending on the circumstances. Moreover, OSHA will not propose a penalty when it reduces the penalty below $100.
The factors used by OSHA to reduce penalties are the:
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.
If an employer disagrees with an OSHA citation, it may challenge it by filing a “notice of contest” within 15 days from the date the employer receives the citation. There is no specific format for the notice of contest, but it must clearly identify the basis for contesting the citation.
During the 15-day window, the employer may request an informal conference with the area director to compromise on the citations before proceeding to litigation. 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.
Alternately, if an employer agrees with the citation, but cannot meet the abatement deadline in the citation, the employer may file a petition for modification of abatement. The employer must file this written petition with the area director no more than one working day after the original abatement date.
After the employer files a notice of contest, OSHA refers the matter to the Office of Solicitor for the U.S. Department of Labor and to the Occupational Safety and Health Review Commission (OSHRC), which is the tribunal that adjudicates the contested citation. The case then proceeds to an administrative proceeding and, absent settlement, concludes with a hearing much like a trial, after which an administrative law judge decides the case. The employer may request that the OSHRC review the final decision. Finally, when the OSHRC issues its ruling, the employer may appeal it in federal court.
An employer may raise a number of defenses to a citation, penalty, abatement deadline, or method of correcting a violation. The employer should raise its defenses when it challenges the alleged violation. These are common employer defenses to OSHA citations:
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