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Safety and health — Minnesota

 

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.

Coverage

The OSH Act’s broad coverage includes nearly all private-sector employers and their employees. However, certain employers and employees are exempt from coverage.

Employers covered

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:

  • state and local government employers
  • the self-employed who themselves are not employing any employees
  • farmers who do not employ workers outside of their immediate family
  • volunteers.

Employees covered

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.

Protected rights

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:

  • filing safety or health complaints with OSHA and seeking an OSHA inspection
  • participating in an OSHA inspection
  • participating or testifying in any proceeding related to occupational safety or
  • reporting an injury or illness to the employer.

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:

Liability for hazards posed to other employers' workers

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:

  • the employer who “created” the hazard
  • the employer who “exposed” workers to the hazard
  • the employer who was responsible for “correcting” the hazard
  • the employer with general supervisory authority to control the worksite (with the power to have safety and health violations corrected)

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:

  • 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, whether they create risks for their own employees or the employees of others at the worksite.

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.

Requirements to maintain a safe and healthy workplace

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:

  • general industry 
  • construction
  • maritime.

The vast majority of employers fit within general industry.

Workplace violence

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:

General requirements

Under the OSH Act and its regulations, employers are responsible for:

  • 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
  • abating 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 below)
  • posting the OSHA’s employee rights poster at a prominent location within the workplace
  • posting OSHA citations and abatement verification notices at or near the worksite involved
  • providing employees, former employees, and their representatives access to the OSHA logs of work-related occupational injuries and illnesses
  • providing employees and others access to their employee medical records and exposure records.

Recordkeeping requirements

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.

Reporting fatalities and severe injuries

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:

  • (800) 321- OSHA (6742)

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:

  • a part, such as a limb or appendage, that has been severed, cut off, amputated (either completely or partially)
  • fingertip amputations with or without bone loss
  • medical amputations resulting from irreparable damage
  • amputations of body parts that have since been reattached.

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:

  • the name of the employer 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 name and telephone number of the employer’s contact person
  • a brief description of the incident.

Other recordkeeping and reporting requirements

Recordable injuries and illnesses

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:

  • the incident is work-related
  • the incident is a new case
  • the incident meets one of the following criteria:
    • the incident resulted in death, loss of consciousness, days away from work, restricted work activity or job transfer, or medical treatment beyond first aid
    • 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.
Note:
COVID-19 is a recordable workplace illness. For more information, visit:

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:

OSHA electronic recordkeeping

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:

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 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:

Safety regulations

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.

Specific standards

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.

OSHA poster

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:

Employee injury and illness logs

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:

Hazard communication

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:

Lockout/tagout

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:

Permit-required confined spaces

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:

Personal protective equipment

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:

Respiratory protection

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:

Bloodborne pathogens

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:

  • have a written program
  • have training
  • implement certain procedural safeguards
  • offer hepatitis B vaccines to its first aid-administering employees.

Details are available at:

Occupational noise exposure

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:

Powered industrial trucks maintenance and training

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:

Variances

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.

Other implications of OSHA standards

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.

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  1. 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.
  2. 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.
  3. 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.
  4. Record and report COVID-19 infections and deaths.
  5. 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.

Additional resources

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:

and include:

  • 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).

Preparing for OSHA inspections

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:

  • a National Emphasis Program (NEP) the agency had focused on poultry processing facilities
  • the company’s recordkeeping forms, such as the 300 logs. 

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

Inspection triggers

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:

  • a major catastrophic event (explosion at the plant, fire, roof collapse, etc.)
  • a worker fatality
  • three or more employees going to the hospital for work-related injuries
  • a worker contacting OSHA with a health or safety complaint
  • random selection from OSHA’s inspection list
  • a high injury rate based on your workers’ compensation figures or as compared to other employers in the same SIC Code.

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:

Priority Category
First Imminent Danger
Second Fatality/Catastrophe
Third Complaints/Referrals
Fourth Programmed Inspections

Site specific targeting

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:

  1. seven or more days away, restricted, or transferred
  2. five or more days away from work for illness or injury.

For nonmanufacturing facilities, OSHA will target establishments reporting either:

  1. 15 or more days away, restricted or transferred
  2. 14 or more days away from work for illness or injury.

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.

Anatomy of an inspection

An OSHA inspection typically includes six stages:

  1. Initial presentation of inspector credentials.
  2. An opening conference, including an explanation of the reason for the inspection as well as the purpose, scope, and procedure of the inspection.
  3. An inspection walk-around.
  4. Witness interviews.
  5. A closing conference, including a discussion of the hazardous conditions and potential violations in the workplace, as well as informing the employer of its rights and obligations.
  6. The issuance of any citations resulting from the inspection, which must occur within six months of the date on which the inspection commenced.

Violations and penalties

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 citations and penalties 

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.

  1. De Minimis Violations - This category includes violations where the employer has made a good faith attempt to comply with OSHA’s rules, but has failed in a way that technically breaches OSHA’s current rules but has no appreciable negative bearing on worker safety and health. For violations of this type, no penalty is assessed, and no citation is issued.
    • Example 1 - The lockout/tagout standard calls for locks or tags to be color X and employer is using color Y. The standard has technically been breached, but with no real detriment to worker health and safety.
    • Example 2 - An employer uses a construction laser that has such a weak beam it poses virtually no threat to worker safety and health, but it technically is missing the safeguards required for lasers by the regulations. The regulations do not distinguish between dangerous lasers and virtually danger-free lasers (such as the one at issue), requiring all lasers to meet the safety protocols for hazardous lasers. The standard has technically been breached, but OSHA concedes that there was no real hazard posed to worker health and safety, so they issued a de minimis violation.
  2. Other-than-Serious Violations - This category includes a violation of OSHA’s rules that would probably not cause death or serious physical harm, but would have some direct, negative relationship to worker health and safety. Each other-than-serious violation may carry a penalty of up to $13,653.
    • Example - A Clorox bleach bottle is missing its label in a wet room in a manufacturing plant. The label was not removed but simply fell off due to the wet conditions in the room, which must be hosed down daily. The bottle is on a shelf next to three other bottles of the same common, household product whose labels are intact. It is obvious that it is a bottle of the same product to the average observer, and so would not likely cause serious harm. OSHA agrees to issue the violation as “other-than-serious.”
  3. Serious Violation - This category includes violations of OSHA’s rules that have a substantial probability of causing cause death or serious physical harm. Each serious violation may carry a penalty of up to $13,653.
    • Example - An employee is working on scaffolding high in the air without being “tied off” and with some railings missing.
  4. Willful Violations - To be categorized as “willful,” an employer knowingly commits a violation of the OSH Act or commits a violation with plain indifference to the law. In these cases, the employer either knows that what it is doing constitutes a violation, or is aware that a hazardous condition existed and made no reasonable effort to eliminate it. A violation meeting this standard need not be committed with a bad purpose or evil intent. Each willful violation may carry a penalty of up to $136,532. Additionally, a willful violation resulting in the death of an employee may expose employers to criminal liability.
    • Example - The employer is aware that carbon monoxide (CO) leaks out of its combustion chamber from time to time near where employees work, that the level of CO it is emitting exceeds OSHA’s allowable limits, and that carbon monoxide is hazardous. Workers have gotten nauseous and lightheaded from working in that area and have reported their symptoms to the employer. The employer intends to fix the hazard, but a great deal of time passes and the employer never gets around to doing anything about it. The violation is willful because the employer knew about the hazard and failed to remedy it.
  5. Repeat Violations - A repeat violation occurs when an employer is found to have violated a standard for which it had been cited at any of its worksites within three years of the date the first citation became a final order or the abatement period ended. To be categorized as a repeat violation, the violation must be a legitimately new violation of the standard. This would not apply if the original violation simply was never abated as required; that would be called a “failure to abate” violation (see number 6). Each repeat violation may carry a penalty of up to $136,532.
    • Example - OSHA standard requires machine guards on all stationary machines with rotating saw blades. Employer is cited in 1997 for failing to have machine guard on one of its table saws. Two years later, employer is cited for repeat violation of the machine guard standard because it failed to have machine guard on one of its table saws in another facility. 
  • In 2018, the Occupational Safety and Health Review Commission addressed the legal standard necessary to establish a repeat violation. OSHA previously had asserted that in order to meet the “substantially similarity” standard to establish a repeat violation, all it had to show was the same type of equipment, process or regulation in the current case and a prior violation. The Commission held that evidence of substantially similarity can be rebutted if the employer demonstrates “disparate conditions and hazards associated with these violations of the same standard.” This decision has opened the door for employers to defend against repeat classifications by showing cumulative abatement efforts which is more nuanced than a rigid application of any test. These cumulative proactive efforts should always be documented and maintained.
  1. Failure to Abate Violations - This category applies where an employer fails to correct cited violations by the abatement deadline.  Each violation that an employer fails to correct may carry a penalty of up to $13,653 for each day beyond the abatement deadline that the violation is not corrected.
  2. Violating posting requirements - Violations of posting requirements may carry a penalty of up to $13,653.

Amount of penalty

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 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.

Criminal penalties

The OSH Act authorizes criminal penalties, including fines and jail time, for:

  • willful violations leading to death
  • falsifying records, reports or applications to OSHA
  • interfering with a compliance officer in the performance of duties.

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.

Most frequently cited violations

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:

  • fall protection - construction
  • hazard communication
  • scaffolding
  • lockout / tagout
  • respiratory protection
  • ladders, construction
  • powered industrial trucks
  • fall protection – electrical, wiring methods
  • machinery and machine guarding
  • electrical, general requirements.

Severe violators enforcement program

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.

Corporate-wide settlement agreements

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:

  • high-profile enforcement cases such as fatalities, “significant” penalties, Severe Violator Enforcement Program citations, and process safety management cases
  • recordkeeping deficiency cases where there are systemic deficiencies or extensive problems
  • cases where “high gravity” citations were issued.

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:

Contesting a citation and petitioning to modify an abatement deadline

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:

  • steps the employer has taken to achieve compliance and the dates those steps were taken
  • a statement of the additional time the employer needs to comply
  • why the employer needs the additional time
  • the interim steps the employer is taking to safeguard employees against the cited hazard(s) until the abatement is complete
  • a certification that the petition has been posted, the date of the posting, and (when appropriate) a statement that the petition has been furnished to an authorized representative of the affected employee. The petition must remain posted for 10 working days, during which employees may file an objection.

Employer defenses

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:

  • No violation - This defense applies when the employer has not violated the General Duty Clause or the applicable regulation alleged in a citation.
  • No hazard - This defense applies when a violation occurs but no hazard resulted from the violation. Accordingly, it applies in situations where either no employee was exposed to the condition or the employer reasonably had no knowledge of the violation.
  • De minimis violation - This defense applies when a violation occurs, but the violation did not create a hazard or did not otherwise compromise the health and safety conditions of the workplace. Additionally, this defense applies to minor, technical violations of the OSH Act when the employer provided adequate alternative protections. There is no penalty for a de minimis violation.
  • Defenses related to the applicable standard - An employer may have a defense when the applicable standard violated was ambiguously worded, improperly issued, or nonbinding. 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 nonbinding 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 regulation or an obligation under the General Duty Clause 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. Additionally, the employer must demonstrate that it is not lagging behind industry standards of compliance. The cost of compliance is not a feasibility defense except in extreme circumstances.
  • Unpreventable 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, an employer attempting to utilize this defense must demonstrate its rigorous enforcement of safety rules and adequate employee safety training.
  • Vagueness - An employer is entitled to fair notice and fair warning of prohibited or required conduct and a reasonably clear standard of culpability.
  • Greater Hazard - The defense has three elements:
    • compliance with the standard that would create greater hazards than noncompliance
    • alternative protective measures were taken or were not available
    • miscellaneous defenses. 

Employers may also have a defense when:

  • 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.

Other requirements

State-run plans and out-of-state activities 

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.

States that follow federal OSHA

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

States that use their own plans

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.

MNOSHA standards

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.

Differences between federal OSHA and MNOSHA

Despite their overall similarities, there are some key differences between the federal OSHA program and MNOSHA. Those differences include:

  • A Workplace Accident and Injury Reduction  program - Employers in certain North American Industrial Classification System (NAICS) codes are required to create and implement a comprehensive written safety and health program called “A workplace accident and injury reduction” (AWAIR) program. The NAICS list includes industries with an incidence rate or a severity rate higher than the Minnesota average. The list is revised every two years.
  • Employee right-to-know - Employee Right-To-Know covers harmful physical agents and infectious agents, as well as hazardous substances, and requires annual refresher training in addition to initial training. The rule covers employees in general industry, construction, maritime operations, and mining, as well as farming operations with more than 10 employees or a temporary labor camp.
  • Employer-paid personal protective equipment (PPE) - Employers must provide and pay for all PPE required for employees to perform their jobs safely. PPE should only be used when all feasible engineering controls, work practices, and administrative controls have been implemented, but are not enough to adequately protect employees.
  • Safety concerns - Certain employers in Minnesota must establish and administer a joint labor-management safety committee. Those employers include:
    • every public or private employer in Minnesota with more than 25 employees
    • every public or private employer in Minnesota with a lost workday cases incidence rate in the top 10% of all rates for employers in the same industry
    • every public or private employer in Minnesota with a workers' compensation premium classification assigned to the greatest portion of the payroll for the employer.
  • Recordkeeping requirements - All Minnesota employers with 11 or more full- or part-time employees must comply with the OSHA recordkeeping requirements (OSHA 300 Log).
  • Confined spaces - Although MNOSHA has adopted the federal Permit-Required Confined Spaces standard for general industry, for the construction industry, Minnesota OSHA enforces Minnesota Rules 5207.0300-.0304, which is available at:
  • Lockout devices in construction - MNOSHA has adopted its own lockout/tagout standard for the construction industry. This standard is in addition to the federal standards and is available at:
  • Permissible exposure limits (PELs) - Air Contaminants - In 1989, federal OSHA revised its PELs, which MNOSHA adopted.  Although federal OSHA has since reverted to the pre-1989 PELs, MNOSHA still enforces the 1989 PELs for substances that are not covered by separate standards.
  • Powered industrial trucks - Federal OSHA has deleted and no longer enforces paragraph (m)(12) of its original provisions. MNOSHA, however, continues to enforce this provision as originally adopted. More information can be found at:

Minnesota's voluntary and cooperative programs

MNSTAR

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:

Workplace Safety Consultation

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:

Smoking

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:

  • make reasonable efforts to prevent indoor smoking
  • post “No Smoking” signs that are available at:
  • ask people who smoke in prohibited areas to refrain from smoking and to leave if they refuse to refrain from smoking
  • use lawful methods consistent with handling disorderly people or trespassers for handling any person who refuses to comply with being asked to leave the premises
  • refrain from providing ashtrays and other smoking equipment
  • refuse to serve noncompliant people.

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:

Where to go for more information

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: