Introduction
The Occupational Safety and Health Administration (OSHA) is responsible for setting and enforcing workplace safety and health standards in the United States. The agency was created in 1970 by the Occupational Safety and Health Act (OSH Act) and is a division of the US Department of Labor.
What does the OSHA do?
Under the OSH Act, the OSHA employs three basic strategies to assist employers and employees in reducing illnesses, injuries, and deaths in the workplace:
- Education and compliance assistance
- Strong, fair, and effective enforcement
- Alliances, partnerships, and other cooperative or voluntary programs
Based on these strategies, the OSHA operates a variety of programs and activities to promote workplace health and safety. Some of the agency’s notable programs and activities include:
- Developing mandatory job safety and health standards
- Encouraging employers and employees to implement new safety and health management systems, and to improve existing programs
- Helping employers reduce workplace injuries and accidents by providing technical and compliance assistance, education, and training
- Enforcing job safety and health standards through worksite inspections, citations, and/or penalties
- Establishing record keeping requirements for workplace illnesses and injuries
- Establishing training programs that effectively increase the competence of occupational safety and health personnel
- Establishing workplace safety rights and responsibilities for both employers and employees
- Monitoring certain occupational illnesses
- Promoting safe and healthful workplace environments through cooperative programs such as OSHA Strategic Partnerships, Voluntary Protection Programs, and Alliances
- Supporting and promoting the development of innovative solutions to workplace hazards
- Supporting the Consultation Programs offered by all 50 states, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana Islands
- Working in close partnership with states that operate their own occupational safety and health programs
State OSH programs
The OSH Act encourages states to set up and maintain their own occupational safety and health programs. “State plans” are governed by state law, but the programs must be approved and monitored by the federal OSHA.
As of 2018, there are 26 states and territories that operate OSHA-approved state plans: Alaska, Arizona, California, Connecticut, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virgin Islands, Washington, and Wyoming.
OSHA coverage
The OSHA has primary jurisdiction over all private sector employers and their employees in the United States and US territories.
The OSHA and its state partners employ more than 2,400 inspectors and 550 state consultants, in addition to a large number of standard-writers, educators, physicians, engineers, and complaint discrimination investigators. Between the federal OSHA and its state partners, there are more than 130 offices throughout the United States.
For federal government agencies and employees, the OSH Act places the primary responsibility for workplace health and safety in the hands of the agency directors. The OSHA has the authority to conduct federal workplace inspections in response to employee complaints, but the agency typically refrains from issuing citations or penalties in such matters.
The notable exception to this rule is the US Postal Service, which was placed under the direct jurisdiction of the OSHA by an amendment to the OSH Act in 1998.
Outside of the private sector and federal government agencies, the OSHA does not cover the following types of employees:
- Self-employed workers
- Family farms that exclusively employ immediate family members
- State and local government employees
- Industries for which other federal agencies have specific jurisdiction over workplace safety conditions (e.g. nuclear weapons manufacturing, nuclear energy, mining, and many sectors of the transportation industries)
Note that while the OSHA doesn’t cover state and local government employees, the OSH Act allows states to establish OSHA-approved state plans for these employees. State plans can cover state and local government employees in addition to private sector employees, or they can institute programs exclusively for state and local government employees.
OSHA standards
The OSHA has a number of standards and regulations for employers to follow. Generally speaking, those standards can be boiled down to three general requirements:
- Be familiar with and comply with the standards applicable to their establishments
- Ensure that employees have and use personal protective equipment when such equipment is required for safety and health
- Maintain conditions or adopt practices that are reasonably necessary and appropriate to protect employees on the job
Workplace hazards are of primary concern to the OSHA, as they represent foreseeable risks that can and should be mitigated. The OSHA issues health and safety standards for a long list of workplace hazards, including:
- Confined spaces
- Dangerous atmospheres
- Electrical hazards
- Falling hazards
- Fire and explosion hazards
- Harmful physical agents
- Having an inspector check for hazards around a crane
- Hazardous waste
- Infectious diseases
- Machine hazards
- Toxic substances
- Trenching hazards
In circumstances where there aren’t any specific OSHA standards that apply, employers are still compelled to provide a safe and healthy workplace by the OSH Act’s General Duty Clause. Section 5(a)(1) dictates that an employer is obligated to “furnish…a place of employment which [is] free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
OSHA guidance
There’s an important distinction between OSHA standards and OSHA guidance. Guidelines are intended to serve as a tool to assist employers in recognizing and controlling hazards.
While standards are regulations that can be enforced, guidelines are voluntary and unenforceable under the OSH Act. Therefore, failure to follow OSHA guidelines is not itself a violation of the OSH Act’s General Duty Clause.
Whistleblower protection
Section 11(c) of the OSH Act prohibits any person from discharging or in any manner retaliating or discriminating against an employee because the employee has exercised their rights under the Act.
These are commonly referred to as protected activities, and can include filing a complaint with the OSHA, requesting an OSHA inspection, and participating in an OSHA inspection. Some examples of employer discrimination or retaliation include:
- Blacklisting
- Demotion
- Denial of benefits
- Denying overtime
- Denying promotions
- Disciplinary action
- Intimidation or harassment
- Reassignment that detrimentally affects prospects for a promotion
- Reduction in hours or pay
- Refusal to hire or rehire
- Termination (fired or laid-off)
To file a whistleblower complaint with the OSHA, you’ll need to contact the local OSHA office within 30 days of the discriminative or retaliatory action. The OSHA will conduct an investigation into your claim, and the agency has the authority to seek remediation on your behalf from the employer. The OSH Act also provides the option for civil action against the employer.
Call our Employment Law team at (480) 464-1111 to discuss your case today.
