The Occupational Safety and Health Act (OSH Act) is the primary body of law governing workplace safety and health in Minnesota. The federal OSH Act was implemented with the goal of reducing workplace injuries, illnesses, and deaths. It grants the Occupational Safety and Health Administration (OSHA) the authority to establish rules and regulations governing workplace safety and health throughout the country. Section 18 of the OSH Act offers states the option of creating their own occupational safety and health program and agency, in place of federal OSHA, and Minnesota law has established Minnesota’s own OSHA program, which requires employers to comply with both the federal OSHA standards and the additional Minnesota statutes and rules.
Because the Minnesota Occupational Health and Safety Codes adopt by reference the OSH Act standards, the primary focus of this chapter is the OSH Act itself. This chapter outlines the OSH Act’s coverage of employers and employees, employer responsibilities, specific standards, inspections, violations, penalties, and employer defenses. The chapter ends by discussing other “localized” standards Minnesota has adopted to cover some additional hazards that are not covered by the federal OSHA standards.
The OSH Act’s broad coverage includes nearly all private-sector employers and their employees. However, certain employers and employees are exempt from coverage.
The OSH Act extends broad coverage to nearly all private-sector employers, requiring them to provide a safe and healthy workplace for their employees. Religious employers also are covered to the extent that their workers are employed for a secular purpose.
The limited exemptions from OSHA coverage include:
The OSH Act’s broad coverage also extends to nearly all private-sector employees, and includes not just line-level employees, but also managers and executives. Coverage does not extend to employees whose working conditions are regulated by other provisions of federal law, such as mining workers, certain transportation workers, and atomic energy workers, although in some cases OSHA and another federal agency have concurrent jurisdiction over such conditions, bringing these conditions within the scope of coverage under the OSH Act.
The OSH Act provides workers with a broad range of rights, protecting them from employer retaliation. Among the employee acts protected by the OSH Act from retaliation are:
The statute also allows workers to file discrimination complaints with OSHA if they believe their employer has retaliated against them for exercising any of these rights.
An important current issue for OSHA is the effect of employer policies that require employees to report all injuries immediately when the failure to report can result in disciplinary action. OSHA recognizes that employers have a legitimate need to know about workplace injuries, but OSHA is concerned that employees who do not immediately recognize that they have been injured will be dissuaded from making any report at a later time for fear of being disciplined. Employers should be wary of maintaining any rule that might give rise to a retaliation complaint under these circumstances.
On October 11, 2018, OSHA issued a standard interpretation clarifying OSHA’s position on workplace safety incentive programs and post-accident drug testing as it relates to retaliation. A copy can be accessed at the website below:
Where more than one employer is present at a given worksite, an employer may also be held accountable for injuries to another employer’s workers, under certain conditions, according to OSHA’s “multiemployer citation policy” doctrine. An updated copy of this policy can be found in OSHA’s Field Inspection Reference Manual (FIRM), Chapter III, paragraph 6 C and can be obtained on OSHA’s website at:
Although this doctrine applies to all industries, it is most often used in the construction industry, where multiemployer worksites predominate. By their very nature, construction sites are in a constant state of flux, as multiple employers work side by side, making changes to the site simultaneously and making safety violations almost inevitable. In recognition of this reality, OSHA developed the multiemployer worksite doctrine, under which more than one employer can be held accountable for a single safety violation. Under this policy:
can each potentially be subject to citation for the same violation. This policy motivates employers to seek corrective action for safety violations at sites that put the safety and health of other employers’ workers at risk, as well as their own.
Accordingly, it is essential for employers at multiple-employer worksites to take steps to limit the hazards posed to other employers’ workers. These steps include the following:
The Occupational Safety and Health Review Commission has ruled that a general contractor has an obligation to protect others at common worksites, so long as the general contractor has its own employees working there, even if those employees were not exposed to the hazard.
The OSH Act requires employers to provide their employees with a safe and healthy workplace. These requirements can be found in the statute’s General Duty Clause, and in more specific regulations established by OSHA under the Act. Employers can be cited for violating the OSH Act under either set of requirements, although hazards can only be cited under the General Duty Clause where no more specific regulation has issued to address the hazard in question.
The General Duty Clause is, essentially, OSHA’s “catch-all” provision. It can be found at 29 U.S.C. § 654(a)(1), and provides that an employer is required to furnish to 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 to his employees...”
Unlike the General Duty Clause, the regulations address specific hazards posed to employees at work. These regulations from OSHA are available at:
The specific regulations issued by OSHA address health and safety in three separate industries:
The vast majority of employers fit within general industry.
The General Duty Clause can also be used by OSHA to cite for workplace violence incidents. OSHA has published the OSHA Fact Sheet addressing workplace violence, which is available at:
Under the OSH Act and its regulations, employers are responsible for:
All employers are required to keep records of occupational deaths, injuries, and illnesses, and to make certain reports to OSHA. Although this chapter will review some of the most significant recordkeeping obligations, OSHA’s regulations and interpretations on this subject are extensive. In fact, OSHA has published a web-based recordkeeping handbook available at:
Employers are advised to verify whether they are subject to specific recordkeeping requirements based on their own operations and the potential hazards to which their employees are exposed.
For many years, employers have been obligated to report the death of an employee from a work-related incident within eight hours after learning of the death, provided that the death occurred within thirty (30) days of the work-related incident. That requirement continues under the newest OSHA regulations. During normal business hours, the employer must report the death by telephone to the nearest OSHA Area Office. After hours, the report must be made by telephone to the nearest OSHA toll free number:
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 e-mail. If the employer does not learn of the incident right away, it must make the report within eight hours of the time the employer of the incident. OSHA is developing a new means of reporting events electronically, but the system has not yet been implemented.
Employers must also report work-related and inpatient hospitalization, amputation, or the loss of an eye that occurs within 24 hours of a work-related incident. The report must be made within 24 hours after the employer learns of the event. OSHA regulations define an amputation as the traumatic loss of a limb or other external body part. Amputations include:
Employers must report an in-patient hospitalization due to a heart attack, if the heart attack resulted from a work-related incident.
Employers do not have to report on an event if it resulted from a motor vehicle accident on a public street or highway, unless the event happened in a construction work zone. Employers do not have to report on events occurring on a commercial or public transportation system, such as an airplane, subway, bus, ferry, streetcar, train or light rail. Such incidents must however be reported on the employer's OSHA injury and illness records. Employers do not have to report an inpatient hospitalization if it is for diagnostic testing or observation only.
For each reportable incident, the employer must provide OSHA with all of the following information:
In addition to reporting fatalities and multiple hospitalization incidents, employers with 10 or more workers must also prepare and maintain records of “recordable” injuries and illnesses. An injury or illness is “recordable,” and the employer must keep records of the injury or illness, if:
Within seven days of receiving information that a recordable injury or illness has occurred, the employer must enter information regarding the incident on the 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 300A must be certified by a company executive and posted for three months, from February 1 to April 30. All of these forms must be retained for five years following the calendar year to which they relate. Copies of the forms that must be completed are available from the OSHA website at:
Effective February 25, 2019, establishments with 250 or more employees are no longer required to submit to OSHA electronically the injury and illness data kept on OSHA Forms 300 and 301. These establishments continue to be required to record and maintain those records onsite. In addition to reporting required after severe injuries, those establishments will continue to submit information electronically from their Form 300A.
The website for electronic reporting may be accessed at:
Establishments with 20-249 employees in certain high-risk industries must also submit information from their Form 300A electronically. Beginning in 2019 and every year thereafter, the information must be submitted by March 2. A list of the covered high-risk injuries, listed by NAICS codes, may be accessed from OSHA’s website at:
For more information regarding electronic reporting requirements see the OSHA Fact Sheet at:
Although all covered employers are required to report fatalities or the hospitalization of three or more employees, employers are not required to keep OSHA injury and illness records for any establishment classified in certain Standard Industrial Classification (SIC) codes, unless they are asked in writing to do so by OSHA or the Bureau of Labor Statistics. A current list of the exempt SIC codes can be viewed at:
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 flowchart on the following page is useful for determining whether an injury is recordable. In addition, a copy of the required logs, and helpful instructions for their completion, are available at:
OSHA issues safety and health standards for specific workplace hazards. The standards require employers to maintain conditions and practices appropriate to protect employees. Additionally, employers must familiarize themselves with particular standards and ensure compliance with standards. Where there are no specific standards, employers must still comply with the OSH Act’s General Duty Clause.
OSHA has issued regulations covering a multitude of workplace hazards. Below is a list of many of the standards most commonly applicable (and cited), along with an explanation of each standard to help employers evaluate their compliance status and determine whether or not a particular standard applies to their business. The list is not exhaustive. For example, the list does not cover electric hazards, guard rails, battery filling stations, machine guards, load ratings, means of egress, ladders, fall hazards, etc. However, it should prove helpful to employers trying to understand some of their basic compliance needs.
All employers are required to post the OSHA Poster (also known as the OSHA publication 3165) on their employee bulletin boards. This poster provides employees with basic information on their rights and obligations under the Occupational Safety and Health Act. Copies can be ordered or downloaded from the OSHA website at:
Companies with 10 or more employees are required to maintain specific employee injury and illness logs. These logs, OSHA forms 300 and 301, must be filled out each time one of the employees incurs an OSHA-reportable injury or illness. An annual posting requirement also applies. See the Recordkeeping section, above, for more information. Copies can be ordered or downloaded from the OSHA website at:
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. In recent years, OSHA implemented new rules regarding hazard communication to bring the United States into alignment with global standards that and require the use of a single set of criteria for classifying and labeling chemicals. Employers are required to train their workers on the new label elements and the safety data sheets format if those employees may be exposed to hazardous chemicals (under normal operating conditions or in foreseeable emergencies. Office workers who encounter hazardous chemicals only in nonroutine instances are not covered) on the new label elements and the safety data sheets format. Since June 1, 2016, covered employers have been required to update their alternative workplace labeling and hazard communication program as necessary, and provide additional employee training for newly identified physical or health hazards.
Many businesses are surprised to find themselves on the list simply as a result of the cleaning products they use. For example, companies that use ammonia, bleach, lime cleaner, or most stainless steel cleaners would fall within the standard’s ambit. Hence, this standard applies to most businesses. Under the standard, an employer must develop a written hazard communication program, maintain material safety data information sheets, meet certain labeling requirements, and give employees hazard communication training at least annually. Details on the hazard communications requirements are available on the OSHA website at:
If employees perform service or maintenance on equipment that has stored energy capable of being released while they are working (such as a conveyor belt, a crane, a furnace, etc.), then the employer needs to have a lockout tagout program. Implementation of this program involves assessing and implementing methods to lock or tag out all machines at the facility that store hazardous energy, developing a written program, implementing the program, and providing training to employees at least annually. Details on the lockout/tagout requirements are available at:
This standard applies to workplaces that have spaces with restrictive means of entry or exit that are large enough to allow employees to enter but not designed for their continuous occupancy (tanks, storage bins, vaults, pits, etc.), and that also either contains material which could engulf them (such as a silo), has inwardly converging walls or a tapering sloped floor that could trap or asphyxiate them (such as a hopper), or could contain an atmosphere that exposes them to a risk of death, incapacity, impaired ability to escape, injury, or acute illness (for example, a combustion chamber). Numerous measures must be taken to implement a permit-required confined space program, where it applies, including emergency response and air sampling equipment, training, a written program, certain entry protocols, etc. Details on the confined space requirements are available at:
All employers that have employees who need personal protective equipment to perform their job safely (hard hats, work shoes, gloves, aprons, goggles, etc.) need to meet OSHA’s personal protective equipment (PPE) standard. To satisfy the PPE standard, employers must evaluate, among other things, the PPE needs for each job at their facility, develop a written program, provide the PPE, train their employees, and enforce the use of PPE. Details on the PPE requirements are available at:
When employees are exposed to a respiratory health hazard that requires respiratory protective equipment to perform their job safely (beyond mere dust masks), or where an employer “reasonably anticipates” any employee's need to use such equipment at the facility occasionally, OSHA’s respiratory protection standard applies. Among other things, compliance with this standard requires a written program; providing respiratory equipment to employees; enforcing equipment use, cleaning, and maintenance; and training, medical exams, and respirator fit tests annually. Details are available at:
While this standard is essential to health care facilities, OSHA also applies it to employers when first aid is administered by designated employees. In addition, if treatment for injured employees is more than 10 minutes away from the employer, OSHA will expect the employer to designate such employees. The bloodborne pathogen standard requires employers to:
Details are available at:
If there are places in the workplace where people have genuine trouble hearing each other because of the noise level of the equipment around them all day, then the workers are probably close enough to the permissible limit of noise exposure (an eight hour time weighted average of 85 decibels) to obligate the employer to test those work areas to see if the noise level is high enough to trigger application of the OSHA occupational noise standard. If the standard applies, the employer will have to institute a full hearing conservation program, including among other things, work area noise level testing, annual hearing tests, provision of hearing protection and enforcement of its use, a written program, and training. Details are available at:
All employers that have workers using powered industrial trucks (fork lifts or pallet jacks, for example) must meet the obligations of OSHA’s powered industrial truck operation and maintenance standard. The standard requires employees using this equipment to receive formal training before operating the equipment, and it requires employers to meet certain daily and periodic truck maintenance obligations and to put these training and maintenance procedures in writing. Details are available at:
Employers may seek variances from OSHA, which – if granted - grant the employer permission to deviate from the requirements or time frame of a standard. Variances may be temporary, permanent, or experimental, depending on the circumstances. Employers must meet specific requirements in order to ask OSHA for a variance.
When a new standard is published, an employer may seek a variance if it can demonstrate that it cannot fully comply with the effective date due to a shortage of materials, equipment, or technical or professional personnel.
When a 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 by the employer. Therefore, failure to comply with specific standards could expose employers to civil liability and even criminal liability.
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:
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:
OSHA compliance officers are authorized to conduct on-site inspections and interviews to determine whether an employer is in compliance with the OSH Act. An OSHA inspection must take place at a reasonable time, in a reasonable manner, and within reasonable time limits.
Employers should prepare themselves for an OSHA inspection. Employers have the right to require OSHA inspectors to obtain a search warrant before entering the workplace. However, search warrants are easily obtainable and may tip off inspectors to potential violations or lead to a more rigorous or extensive inspection. so whether an employer wants to exercise this right is a highly fact sensitive question.
For example, in USA v. Mar-Jac Poultry, Inc., No. 16-17745 (11th Cir. 2018), the 11th Circuit recently affirmed a lower court’s order quashing an administrative warrant seeking to expand the inspection of a poultry processing plant. OSHA sought to expand the scope of the inspection based on both:
In denying the warrant, the lower court held that OSHA did not have reasonable suspicion of the other hazards as alleged by OSHA based on the 300 Logs and that Mar-Jac had not been selected by neutral criteria under the NEP.
The 11th Circuit affirmed and stated that:
“The existence of a ‘hazard’ does not necessarily establish the existence of a’ violation’ and it is a ‘violation’ which must be established by reasonable suspicion in the application [for the warrant] … [A] hazard does not itself establish a violation.”
The decision could have a real impact on OSHA’s ability to obtain a warrant for purposes of an inspection or for purposes of expanding an inspection and should be considered if OSHA is not reasonable in the scope of its investigation.
Employers should also decide which employees to appoint to accompany the inspector on the walk-around and may want to consider having the inspector sign a trade secret agreement if the inspection will take OSHA personnel to areas of the employer's facility where commercial secrets may be in view. Additionally, the employer should be aware that during inspections, OSHA inspectors may privately question hourly employees, but they may not insist on private interviews with management or supervisory personnel who can bind the employer. As a result, management and supervisory personnel should be accompanied by a witness or the employer's legal counsel during any interviews with an OSHA inspector. When employers do not cooperate with requests for interviews and/or records, OSHA may issue subpoenas to compel depositions and/or production of records.
On April 25, 2017, OSHA withdrew guidance, commonly referred to as the Fairfax Memorandum permitting “workers at a worksite without a collective bargaining agreement” to designate “a person affiliated with a union or community organization to act on their behalf as a walk-around representative” during an OSHA workplace investigation. This practice should no longer be acceptable to employers
Inspections typically occur without advance notice. Anyone who gives an employer advance notice of an OSHA inspection may be subject to criminal penalties. However, OSHA may provide 24 hours’ notice of inspections in limited circumstances. OSHA inspections can occur as a result of:
When the inspection is the result of a fatality or is a product of three or more employees going to the hospital for work-related injuries, OSHA is required by statute to inspect. When a worker has complained to OSHA about health and safety conditions in the workplace, OSHA is required to look into the matter further, but has discretion in choosing whether to follow-up by letter, telephone, or in-person inspection.
OSHA has established the following inspection priorities:
Since 2013, OSHA has targeted general industry employers for inspections in states without their own state occupational safety and health agency. Employers with 20 or more employees are selected based upon the data contained in their OSHA 300 Log.
The primary list includes manufacturing establishments reporting either:
For nonmanufacturing facilities, OSHA will target establishments reporting either:
Employers that did not respond to OSHA’s 2011 Data Initiative Survey, which requested injury and illness data for 2012, will be included on a secondary list.
These site specific inspections are comprehensive, wall-to-wall inspections. Employers that have undergone a comprehensive, wall-to-wall inspection in the prior 36 months are exempt from this program.
An OSHA inspection typically includes six stages:
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 towards OSHA. Finally, employees are not subject to penalty for violations of the OSH Act; instead, 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. Violations and the corresponding penalties fall into the following seven general categories under the OSH Act.
OSHA may reduce the amount of a penalty assessed for a violation depending on the circumstances. Additionally, OSHA will not generally 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 ten 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. The list remains fairly consistent from year to year. For the fiscal year ending September 30, 2020, the top 10 list of most frequently violated standards consisted of:
On June 18, 2010, OSHA launched a program to bring additional enforcement efforts to bear on employers who willfully and repeatedly endanger workers by exposing them to serious hazards. Known as the Severe Violators Enforcement Program (SVEP), this enforcement effort concentrates additional resources if an inspection reveals one or more willful or repeated citations or failure-to-abate notices based on a serious violation related to a death of an employee or three or more hospitalizations. Employers can also face enhanced enforcement if an OSHA inspection reveals two or more willful or repeated violations or failure-to-abate notices based on serious violations related to a high-emphasis hazard.
Under the SVEP, a high-emphasis hazard may arise from OSHA’s fall hazard regulations, its national emphasis programs on amputations, combustible dust, crystalline silica, lead or shipbreaking, or on the OSHA special emphasis program on excavation and trenching hazards. High-gravity serious violations related to hazards resulting from the potential release of a highly hazardous chemical, as defined in the process safety management standard, will also qualify the employer for severe violator enforcement.
Under the SVEP, enhanced enforcement may include mandatory follow-up inspections, increased company and corporate awareness of OSHA enforcement through corporate-wide agreements, enhanced settlement provision, and federal court enforcement. A copy of OSHA’s SVEP is available at:
Following an in-depth evaluation of the program, OSHA published guidance on August 16, 2012, stating that an employer could be removed from the SVEP after a period of three years after the date of final disposition of the SVEP inspection citation items. For this purpose, final disposition may occur through failure to contest, settlement agreement, Review Commission final order, or court of appeals decision. Employers must have abated all SVEP – related hazards affirmed as violations, paid all final penalties, abided by and completed all settlement provisions, and not received any additional serious citations related to the hazards identified in the SVEP inspection at the initial establishment or at any related establishments. At that time the employer’s removal will be at the discretion of the Regional Administrator or designee and shall be based on an additional follow-up inspection. For cases involving national corporate-wide settlement agreements, the Directorate of Enforcement Programs will make the termination of the employer’s exit from the SVEP.
On June 22, 2011, and in the first major overhaul of this program in 20 years, OSHA issued revised guidelines for administering corporate-wide settlement agreements. While the old program focused primarily on employers cited for egregious violations, the new program expands the guidelines to include:
Under these guidelines, OSHA will consider going beyond the subject of existing citations to include additional safety and health program enhancements in the agreement, especially when compliance problems identified in the inspection may be indicative of a broader pattern of noncompliance. OSHA also sees this as an opportunity to negotiate enforcement in one settlement for multisite employers to leverage OSHA’s resources. A copy of the updated guidelines is available at:
OSHA has six months from the date the inspection commences to issue any resulting citation(s) to the employer. Once the citation issues, the employer has 15 business days from the date it received the citation in which to seek to modify or contest the citation’s terms. Unless a “Notice of Intent to Contest” has been filed or a settlement reached within those 15 days, the terms of the citation become fixed by statute and cannot be altered.
If an employer disagrees with some aspect of an OSHA citation, the first step an employer may choose to take is to seek a prompt informal conference with the area director in an effort to reach a compromise on the citation. Regardless of whether the employer decides to try to resolve the contested issue informally with the area director, if the matter is not completely resolved to the employer’s satisfaction within 15 days after the employer receives the OSHA citation, the employer seeking to challenge the citation must do so by filing a “Notice of Intent to Contest.” There is no specific format for the Notice of Intent to Contest, but the notice must clearly identify the basis for contesting the citation, such as a challenge to the citation itself, the penalty assessed, the abatement date stated, or any combination of these factors. Filing the Notice of Intent to Contest timely within the 15-day period commences the judicial review process of the challenged citation.
Once the Notice of Intent to Contest is filed, OSHA refers the matter to the Office of the Solicitor for the Department of Labor (which litigates the case on OSHA’s behalf) and to the Occupational Safety and Health Review Commission (OSHRC) (the tribunal that adjudicates the contested citation). The parties then go through the administrative proceeding and, absent settlement, conclude with a hearing much like a trial, after which an administrative law judge (ALJ) decides the case. The ALJ’s decision is subject to review by the OSHRC (if requested), and OSHRC rulings can be appealed to federal appellate courts.
Alternatively, 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” (PMA) which must be filed in writing with the area director no more than one working day after the original abatement date. In order to demonstrate the employer’s good-faith effort to comply with the original abatement date, the PMA must contain all of the following information before OSHA will consider it:
Employers may raise defenses to citations, penalties, abatement deadlines, and methods of correcting 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:
Employers may also have a defense when:
Workplace safety and health is governed by the law of the state where the worksite is located, not by the state where the employer is located. Hence, if a Minnesota business uses employees at worksites in other states, (such as at additional manufacturing plants or construction sites in other states) then the company will be subjected to the laws of those other states for work performed there. It is therefore important to identify if any of the other states in which the employer has worksites have state OSH plans the employer needs to comply with as well.
Under Section 18 of the OSH Act, states have the option of creating their own occupational safety and health program and agency, in place of “federal OSHA,” so long as their program provides at least as much health and safety to employees within that state as federal OSHA. The state plans have their occupational safety and health agency, and their own separate body of safety and health laws – which apply in place of the federal standard. “State-plan states” have jurisdiction over all general industry and construction industry occupational safety and health issues (except those states noted below whose plans cover only state government employees). Federal OSHA retains jurisdiction over all maritime OSHA matters, even in states where state plans are in effect.
Twenty-six states and teh District of Columbia follow federal OSHA exclusively. Another three states, and one territory, follow federal OSHA almost exclusively; they have state/territorial plans, but their plans cover only their own government employees. (An * next to a state's name indicates that the state has it's own OSH plan for government employees.) The states that follow federal OSHA are:
Alabama Illinois Nebraska Rhode Island
Arkansas Kansas New Hampshire South Dakota
Colorado Louisiana New Jersey* Texas
Connecticut* Maine New York* Virginia
Delaware Massachusetts North Dakota Virgin Islands*
Florida Mississippi Ohio West Virginia
Georgia Missouri Oklahoma Wisconsin
Idaho Montana Pennsylvania
Twenty-one states, and one territory, follow their own occupational safety and health plans exclusively. They are:
Alaska Kentucky North Carolina Vermont
Arizona Maryland Oregon Virginia
California Michigan Puerto Rico Washington
Hawaii Minnesota South Carolina Wyoming
Indiana Nevada Tennessee Iowa New Mexico Utah
Although the OSH Act is the primary body of law protecting workers in Minnesota, it works in connection with Minnesota’s separate, statutory OSHA program. Minnesota employers must ensure that they are complying not only with the federal OSH Act but also the Minnesota OSH statutes. In addition, other laws may apply, such as certain provisions of the environmental protection laws pertaining to asbestos or other environmental contaminants in the workplace, and local building and fire codes.
The Minnesota Occupational Safety and Health Program (MNOSHA) is administered by the Minnesota Department of Labor and Industry. Like the federal program, the stated goal of MNOSHA is to make sure that every worker in Minnesota has a safe and healthful workplace. MNOSHA applies to all public and private sector employers within Minnesota, with the exception of federal employees, the U.S. Postal Service, and certain agricultural operations. Management and administration of MNOSHA, including the inspection and enforcement mechanisms, operate very similarly to the federal program.
Despite their overall similarities, there are some key differences between the federal OSHA program and MNOSHA. Those differences include:
MNOSHA has established the separate MNSTAR program, which recognizes companies where managers and employees work together to develop safety and health management systems that go beyond basic compliance with all applicable OSHA standards and result in immediate and long-term prevention of job-related injuries and illnesses. Key elements of this comprehensive program include: management leadership and employee involvement; an allocation of resources to address safety issues; systems that identify and control workplace hazards; and a plan for employee safety training and education.
The MNSTAR program is modeled after the federal OSHA Voluntary Protection Program (VPP), and there are currently more than 2,000 companies nationwide that have met the VPP program requirements.
A copy of the MNSTAR application materials is available at:
MNOSHA has also established a separate consultation program that offers consultations, upon request, to certain Minnesota employers to help them prevent workplace accidents and diseases. More information about this program, including the online form used to request a Workplace Safety Consultation visit, is available at:
Under the Minnesota Clean Indoor Air Act (MCIAA), and its Freedom to Breathe amendments effective since 2007, smoking is generally prohibited in public places and workplaces in Minnesota. Employers and property/facility managers have the legal obligation under these statutes to control smoking in their place of business, including the requirements that they:
Under the MCIAA, a Minnesota employer cannot fire, refuse to hire, penalize, discriminate against, or retaliate against any employee, applicant, or customer who exercises any right to a smoke-free environment provided under the MCIAA.
Employers should be aware that the MCIAA does not prohibit outdoor smoking, regardless of the distance from building openings such as doors or windows.
More details about the MCIAA and the Freedom to Breathe amendments are available at:
The U.S. Department of Labor provides contact information to assist employers in answering questions about their obligations under OSHA available at:
In addition, the Minnesota Department of Labor maintains a website providing contact information to request information or respond to questions regarding MNOSHA available at:
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Independent contractors — Minnesota
Noncompete agreements and trade secrets — Minnesota
Policies and procedures manuals — Minnesota
Wages and hours — Minnesota
Child labor — Minnesota
Discrimination — Minnesota
Disabilities and reasonable accommodation — Minnesota
Workplace harassment — Minnesota
Benefits — Minnesota
Health insurance reform — Minnesota
Family and medical leave — Minnesota
Military leave — Minnesota
Other types of leave — Minnesota
Performance evaluations — Minnesota
Personnel files — Minnesota
Workplace investigations — Minnesota
Discipline — Minnesota
Termination — Minnesota
Plant closings and mass layoffs — Minnesota
Health insurance continuation coverage — Minnesota
Unemployment compensation — Minnesota
Whistleblower protections — Minnesota
Privacy rights — Minnesota
Health insurance portability and privacy — Minnesota
Protecting electronic information — Minnesota
Social media — Minnesota
Safety and health — Minnesota
Workplace violence — Minnesota
Workers' compensation — Minnesota
Politics in the workplace — Minnesota
Celebrating in the workplace — Minnesota
Federal contractors and affirmative action — Minnesota
Public employers — Minnesota
Unions — Minnesota
Telecommuting — Minnesota
Drugs and alcohol — Minnesota
Diversity in the workplace — Minnesota
Disaster planning — Minnesota
Pandemic outbreaks — Minnesota
Appendix A: Recordkeeping requirements
Appendix B: Posting Requirements