Duties and responsibilities

Section 5(a) of the OSH Act states:

“The basic duties of employers and employees are that:

1. each employer shall furnish to each of its employees employment and a place of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees, and shall comply with occupational safety and healthstandards promulgated under this Act;

     and

2. each employee shall comply with occupational safety and healthstandards and all rules, regulations, and orders issued pursuant to this Act that are applicable to his or her own actions and conduct.”

This basic duty of the employer often is referred to as the employers’ “general dutyclause,” because it creates an obligation to safeguardemployees against any recognized hazards even if no OSHAstandard addresses the issue. This is discussed in detail in Chapter 4, The employer’s general duty.  Every employer is also required to post the OSHA required poster where all employees can see their rights and responsibilities.  See Appendix A, Required postings.

What does OSHA require of employers?

Employers are charged with knowing the OSHA standards and meeting the requirements stated by those regulations. Lack of knowledge of the OSHA standards’ requirements is not a defenseto an alleged violation. The largest groups of these standards address hazards in:

• general industry
• construction
• shipyards
• marine terminals
• longshoring
• agriculture.

A particular hazard could be covered by a specific standard in one type of covered industry group, but not covered specifically in a standard with application to other workplace types. If a “vertical standard” applying to a specific industry (for example, construction) is in effect, then it preempts a “horizontal standard” with broad application over other industries (in other words, general industries). For example: A standardcovering lockout of equipment in construction work preempts the general-industry standard– even the more stringent standard – addressing lockout hazard.  However, if the construction standardis silent with respect to some aspect of that hazard, then the relevant provisions of the general-industry standardapply to the construction employer. Similarly, a new standardcould increase protection in one covered group, but not in others.

Specification standards

Employers should note that some OSHA standards describe the measures required for compliance in meticulous detail. For example, one of these “specification standards” regulates workplace exposure to asbestos in buildings, and it provides exhaustive instructions on matters like:

• frequency and method of air monitoring
• frequency and content of training programs
• work practices that are required and prohibited
• frequency and content of medical examinations
• recordkeeping.

Performance standards

The opposite of a specificationstandardis a “performance standard,” which informs the employer of the expected objective, but does not dictate in minute detail – or, often, in any detail at all – how to achieve it.  All employers must guardmachineryto prevent employee contact with dangerous blades, pinch points, etc., but any effective means can be used.  OSHA does not specify a method.

What records must be kept?

Employers are responsible for creating and maintaining numerous records under various OSHAstandards.  Some of these records are requiredof all employers, unless the exemptionfor small employers applies. Others are mandated by standards on specific hazards or specific work operations. In the usual case, only a minority of employers have recordkeeping duties under one of these hazard-specific or job-specific standards. When such a duty arises, it normally applies only to that subset of the workforce exposed to the hazard or engaged in the job regulated by the standard. (A detailed discussion of employers’ recordkeeping requirementsis found in Chapter 5, OSHA recordkeeping requirements.)

Inspections

As part of an onsite inspection, OSHAfrequently inspects records to assess compliancewith standards and to identify conditions that suggest a violation of the general dutyclause. Of course, the violation of a specific standardcould be “technical,” in the sense that the employer merely failed to do the paperwork properly. In the alternative, the recordkeeping violation could be evidencethat a requiredprogramis seriously defective. In either situation, costly citationsare possible.

Reporting

An employer is requiredto initiate the report to OSHAonly if a catastrophiceventoccurs – one that results in:

• the death of one or more employees
• or
• the hospitalizationof three or more employees from a single workplace incident.

Note

In California, Oregon and Washington state, it only requires the hospitalization of one employee for more than observation to trigger the notification requirement. 

Note

There is a proposed change by OSHA which will reduce the reporting requirement to only the hospitalization of one employee.

The report must be made by telephone or in person within eight hours, to permit timely inspection of the workplace. This requirementapplies if the first death or the third hospitalization occurs within 30 days after the incident that was the cause.

What happens when there are multiple employers on the same job site?

Difficulties often arise when several different employers working at one work site have responsibility under the Act for the health and safetyof not only their employees, but the employees at the site. Such situations occur frequently when employees of various employers share a common work area. This is common on construction sites, as well as industrial facilities that use contracted services of off-site firms for maintenanceand other tasks.

Both employers at a multi-employer site:

• may be citedfor creating or controlling a workplace hazard, even if that employer’s own employees are not exposed to that hazard
• and
• is responsible for its own employees who are either exposed to the hazard or are responsible for correcting a hazard.

Additionally, OSHA can cite two or more employers for the same violation.  It is presumed that an “innocent” or “non-creating” employer can, and should, exert pressure on the employer responsible for the dangerous condition, and thereby effect improvement.

In issuing such multi-employercitations, OSHA considers each employer’s:

• knowledge of and degree of control over the workplace
• the seriousness of the violation cited.

An employer normally can avoid an OSHA citation for a non-serious violation created by another employer, but not for a serious violation to which employees of the “innocent” employer are exposed. An employer can argue that a hazard created by another employer was one that the innocent employer could not discover with reasonable effort, even if the innocent employer had a substantial degree of control.

Who can be cited

OSHAexpects that general contractors, construction managers, and industrial ownersand operatorsshould oversee health and safetyperformanceof contractors and subcontractorson the sites that they control. Citations of a general contractor on a construction siteare common when a subcontractorcreates an OSHA violation. The expansion of this policyinto industrial facilities was a subject of controversy, but OSHA has and continues to cite the owneror operatorof an industrial facility for a contractor’s and vendor’s violation of an OSHA standard.  The Review Commission and Circuit Courts have upheld this policy.

Borrowed employees

The issue of control also is important when a covered employee is “borrowed” from one employer to work for a second employer. In such situations, the employer with the power to direct or supervise the details of the borrowed employee’s work activity probably will receive the OSHAcitation for a violation, but this is not always the determining factor. When the borrowed employee brings special skills and works without detailed oversight, then the loaning employer probably would be citedfor the allegedviolation or safety or healthhazardto which the borrowed employee was exposed. Under the basic principles discussed in this section, a loaning employer would receive a citationif it knowingly loaned employees for work in a dangerous environment. Of course, the borrowingemployer that created the hazardous conditions would be citedas well in this situation.

It is important that every employer make strenuous efforts to protect its own employees from safety and healthhazards created by others. These efforts can include contacting the creating employer and requesting abatementof the hazard, which should be recorded in writingto show OSHAthat the employer attempted to achieve compliance, and to safeguardemployees by alternate means.

What should an employer do if they are unable to comply with a standard?

Employers who are unable to comply fully with an OSHAstandardmay apply for a varianceunder the OSH Act. Rules for varianceapplications in federal jurisdictions and in state plans are similar.

Common reasons for a variancerequest include:

• inability to comply on the effective date of a new standardbecause of the current unavailability of equipment, materials, or specialized expertise
• compliance with the standard is technically or economically unfeasible
• belief that some other means exists to provide protection “at least as effective” as that requiredby the standard.

As a general rule, a temporary variancewill not be granted to an employer who merely cannot afford to pay the costof full compliance. Nor may an employer receive a varianceif its lack of diligence has caused the inability to achieve full and timely compliance.

Applying for a variance

Normally, an employer must apply for a temporary variancewithin a reasonable amount of time prior to the effective date of the standard.  The employer must demonstrate that:

• it has taken steps to safeguardemployees
• and
• it has undertaken a programto achieve full compliancewithin a reasonable time.

An application must identify the standardand the specific portion thereof for which the temporary varianceis requested, and the reason for the inability to comply fully on the effective date. The employer must certify that:

• affected employees have been informed of the varianceapplication
• and
• any authorized representatives of the employees have received a copy
• and
• a copy has been posted in an appropriate location in the workplace.

Length of variance

A temporary variancemay be granted for whichever is shorter of:

• one year
• or
• the period necessary to achieve compliance.

Renewal of temporary variances

Temporary variancesmay be renewed only twice, and neither extension may be longer than six months.

Permanent variances

A permanent varianceis granted if the employer can demonstrate that alternative practices, operations, equipment, etc., are at least as effective as compliancewith the letter of every provision of the standard. Such a variance, issued in writing, will state the specific exceptions granted, as well as the employer’s specific responsibilities for creating and maintaining protection as effective as that expected from full compliance with the standard. The employer must inform the employees of the application and of their right to request a hearingon the matter.

Interim orders

OSHAmight issue an interim orderallowing the employer to continue operation under existing conditions while the application for a permanent varianceis under study. An application for an interim order normally accompanies the application for a permanent variance. Interim orders of federal OSHA are published in the Federal Register. In areas covered by a state plan, normally the Commissioneror Director of labormaintains copies of all final orders for permanent variances. Final orders must be:

• posted appropriately in the workplace
• given as copies to any employee representatives.

What are an employee’s rights and duties?

The OSH Act provides employees with the right to expect safe and healthful working conditions, and for the enforcementof these rights. The OSH Act commits the government to many research and educational programs to achieve safe and healthful work environments, for the benefit of employees.

Although Section 5(a) of the OSH Act requires employers to comply with OSHAsafety and health standards, the OSH Act provides for no OSHA enforcementaction against employees. In fact, it demands relatively little of them.

However, employers may insist upon employees’ compliancewith rules designed to enhance workplace health and safety. An employer that disciplines or terminates an employee because of refusalto comply with, or violation of, safety and/or health rules normally has a strong case, if the action is challenged in courtor administrative proceedings.