After OSHA performs an inspection, it may issue citations for any violations. Citations must be in writing and describe the nature of the violation. Congress created OSHA on Dec. 29, 1970, with Public Law 91-596, “Occupational Safety and Health Act of 1970.” It applies to employers in every state, the District of Columbia and United States territories.
The purpose of the act was as follows: “To [en]sure safe and healthful working conditions for working men and women; by authorizing enforcement of the standards developed under the Act; by assisting and encouraging the States in their efforts to [en]sure safe and healthful working conditions; by providing for research, information, education, and training in the field of occupational safety and health; and for other purposes.”
Most look to the act as an explanation of OSHA’s enforcement, and it is. However, it also is important to note that the act identifies why Congress felt a law was necessary, and it mandated the broad range of activities to fulfill the intended purpose. Congress recognized that occupational injuries and illnesses imposed a substantial burden on business. To alleviate this burden, it created a number of mandates. These ranged from the establishment of the National Institute of Occupational Safety and Health (NIOSH) for performing research, to the creation of the Occupational Safety and Health Review Commission (OSHRC) to adjudicate citations. Of course, the mandates that create the most angst and questions from employers are those that empower OSHA to set standards and enforce them.
OSHA’s abilities and processes
Before looking at the authority granted OSHA under the act, we must look at the duties established for employers. These duties are the basis for the actions OSHA takes against an employer.
Section 5 of the act requires every employer to comply with standards promulgated by OSHA and provide a safe workplace. Compliance with the standards provides finite parameters to OSHA’s power. If OSHA establishes a standard for safety in accordance with the act, an employer must comply with the elements applicable to its operation.
On the other hand, the general requirement for providing a safe workplace, Section 5(1)(a), broadens OSHA’s authority to any aspect of work. This part of the act is known as the “General Duty Clause,” and it gives OSHA jurisdiction over any hazard that is recognizable and for which a remedy is available. However, the burden of proof for general duty rests with OSHA. Enforcement is most often directed at compliance with established standards.
To create a standard, OSHA must execute an exhaustive procedure, which allows for a thorough review of the need. A new standard or change can be initiated by any person, NIOSH or even OSHA itself. It should be based on information that shows such a rule will improve workplace safety and health.
Once initiated, OSHA seeks advice from the advisory committees established under the act. These committees are the National Advisory Committee for Occupational Safety and Health (NACOSH) and the Advisory Committee for Construction Safety and Health (ACCSH). Upon receipt of the recommendation, OSHA can publish a proposed rule. All interested parties may comment on the proposal at hearings OSHA must hold. Comments will be considered and a final standard issued. Each step of the procedure must be completed within the timelines specified by the act and an effective date set, which gives employers time for compliance with the new rule.
For all standards and general duty compliance, OSHA is authorized to perform inspections and investigations. Upon presenting
appropriate credentials, a compliance officer can enter any factory, plant, establishment, construction site or environment where work is performed. The request to enter must be during regular working hours or at another reasonable time, and the employer may challenge the request. The compliance officer must then secure a warrant, and then he has the right to inspect conditions, structures, machines, devices, equipment, materials and records that are pertinent to the safety and health of employees or identified in the scope of the warrant. Employees may be questioned privately. A representative of the employer and a representative authorized by the employees must be given an opportunity to accompany the compliance officer during the inspection.
After OSHA performs an inspection, it may issue citations for any violations. Citations must be in writing and describe the nature of the violation, including a reference to the act and standard, and they must set a reasonable time for the abatement.
Penalties authorized under the act include fines as well as possible imprisonment. A violation that is not considered to be serious, or will not lead to death or serious physical harm, is subject to a fine of up to $7,000. Serious violations also are subject to the same penalties. If the violation is considered willful or a repeated violation, fines can go as high as $70,000 for each occurrence. When a willful violation results in death, the employer can be imprisoned for up to six months. A second conviction can result in imprisonment for up to one year under the act. Failure to correct a violation is subject to fines of up to $7,000 per day.
However, within 15 working days from the receipt of a citation, the employer can file a notice of contest. The OSHRC will appoint an administrative law judge to hear the case and render a decision. An appeal may be made to the OSHRC and to the United States Court of Appeals.
In cases where a danger exists that could cause death or serious physical harm immediately or before the danger can be eliminated through regular enforcement procedures, a restraining order may be sought. This will prohibit the employment or presence of any individual in the locations or under conditions where the danger exists. However, there is a limitation. OSHA cannot issue a citation after six months following the occurrence of any violation.
The federal OSHA can relinquish its jurisdiction to set standards and perform inspections to states. Under Section 18 of the act, a state may submit a plan to develop and operate its own job-safety and health programs. If approved, the federal government will cover up to 50 percent of the state plan’s operating costs. To receive approval, a state must assure OSHA that, within three years, it will have in place the elements necessary for an effective occupational safety and health program. These include appropriate legislation, regulations and procedures for standards setting, enforcement, appeal of citations and penalties, and a sufficient number of qualified enforcement personnel. Once these are in place, the state is eligible for certification.
When it appears that the state is capable of independently enforcing standards, OSHA may enter into an operational status agreement with the state. At this point, OSHA will suspend federal enforcement in all or certain activities covered by the state plan.
The last step is final approval. After at least one year following certification, the state can receive final approval if OSHA determines that it is providing worker protection at least as effective as the protection the federal program provides. Jurisdiction then remains with the state until the state withdraws or OSHA finds, by complaint or other means, that the state plan has failed to maintain an effective program.
States with approved plans are listed in the table above. Connecticut, New Jersey, New York and the Virgin Islands plans cover only public employees. Jurisdiction over private employers remains with the federal OSHA.
Factors outside the act can affect jurisdiction. The act does not prohibit states from developing safety requirements not covered in the OSHA standards. For example, many states enacted chemical right-to-know rules. These were in effect until the Federal Hazard Communication standard was established. Even today, portions of these rules that do not conflict with the federal standard remain in effect.
Congress also has extended or limited OSHA’s jurisdiction by appropriations bills or other legislation. An example of an extension of the rules can be seen in the Medicare Prescription Drug, Improvement, and Modernization Act of 2003. This legislation gave OSHA jurisdiction over public hospitals not otherwise covered under OSHA’s bloodborne pathogen standard.
An example of a limitation caused by appropriations is the restriction on certain enforcement activity toward employers with less than 10 employees. This restriction has generated a lot of confusion among employers. OSHA has jurisdiction over these employers, but the appropriations restriction does not allow OSHA to include those employers in programmed inspections. If an inspection occurs, it must be the result of a complaint or other direct cause.
The limitations and extensions of OSHA’s jurisdiction—as well as the confusion regarding when agencies, such as the Mine Safety and Health Administration or Department of Transportation, cover employees-—can be difficult to determine. The importance of this distinction and the limits the act places on OSHA can make a significant difference in which rights you can exercise. Professional help may be necessary in these circumstances.
Any employer that has questions on jurisdiction should consult their association, legal counsel or other knowledgeable safety professional.
O’CONNOR is with Intec, a safety consulting, training and publishing firm that offers on-site assistance and produces manuals, training videos and software for contractors. Based in Waverly, Pa., he can be reached at 607.624.7159 or email@example.com.