Introduction
The Occupational Safety and Health Act (OSH Act) was passed in 1970 to regulate and enforce workplace safety in the United States. The OSH Act is administered by the Occupational Safety and Health Administration (OSHA), a division of the US Department of Labor (DOL).
Private employers
The OSH Act applies to most private sector employers and their employees in all 50 states, the District of Columbia, Puerto Rico, and other United States territories. Under the OSH Act, workplace safety standards may be enforced directly by the OSHA, or by a state program that has been approved by the OSHA.
In cases where any workers are specifically excluded from a state plan (sometimes on military bases or in maritime industries), the OSHA can step in to provide coverage for the excluded workers.
State & local government
Employees with state and local government agencies aren’t covered by the OSHA, but they’re still protected by the OSH Act as long as they work in states where there is an OSHA-approved state program.
States and US territories also have the ability to develop special programs specifically for public sector (state and local government) employees.
Federal government
The OSH Act formed a dedicated program for employees with the federal government. Section 10 of the OSH Act places the responsibility for providing safe and healthy workplace conditions with the head of each federal agency.
The OSHA doesn’t impose fines on federal agencies who violate workplace safety standards, but it does monitor the agencies and will conduct inspections in response to any federal employee’s report of workplace hazards.
The major exception to this rule is the US Postal Service. A 1998 amendment to the OSH Act placed the Postal Service under the jurisdiction of the OSHA as if it were a private sector employer.
Who does the OSH Act not cover?
There are four types of employers/employees that are exempt from the OSH Act:
• Self-employed individuals
• Farms that only employ immediate family members
• Industries for which other federal agencies have jurisdiction over workplace safety conditions, including nuclear weapons manufacturing, nuclear energy, mining, and many sectors of the transportation industries
• State and local government employees (unless they’re covered by an OSHA-approved state program)
Basic requirements and provisions of the OSH Act
The OSHA has two regulatory functions: to set workplace safety standards, and to conduct inspections to ensure that employers are providing safe, healthy workplaces.
Standards that are imposed by the OSHA may require employers to adopt certain methods, means, practices, or processes that are reasonably necessary and appropriate to ensure workplace safety. Employers are obligated to comply with all OSHA standards, and they’re responsible for eliminating or controlling any serious workplace hazards.
An employer’s compliance with OSHA standards may include the following:
• Implementing engineering controls to limit exposure to toxic substances and physical hazards
• Implementing administrative controls
• Ensuring all employees are provided required personal safety equipment
• Ensuring all employees are effectively trained on how to use safety equipment
In any areas where the OSHA hasn’t established any standards to address a specific hazard, employers are still obligated to address the hazard under the OSH Act’s “general duty” clause. Section 5(a)(1) dictates that employers “shall 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.”
State programs
The OSH Act encourages states to develop and operate their own workplace safety and health programs. These “state plans” operate under the authority of state law, though they are approved and monitored by the OSHA. Currently, there are 26 states and 2 territories with OSHA-approved state plants.
Of those, 41 states and one territory operate complete state plans, while five states and one territory only provide coverage for state and local government employees.
Employee Rights
The OSH Act grants employees covered by the law several important rights:
• The right to submit a workplace safety/health complaint
• The right to keep the identity of the whistleblower confidential from the employer (to the extent permitted by law)
• The right to participate in OSHA workplace safety inspections
• The right to be trained in a language that you can understand
• The right to work with safe machinery
• The right to be provided with required safety gear
• The right to be protected from exposure to toxic chemicals
• The right to report injury and illness, and receive copies of your medical records
• The right to see copies of the workplace injury and illness log
• The right to review the records of work-related injuries and illnesses
• The right to receive copies of test results regarding hazards in the workplace
• The right to contest the amount of time the OSHA provides an employer to correct violations of standards
Protection against retaliation
Employees in the private sector who participate in OSHA complaints or inspections are protected against employer reprisal and retaliation. This is commonly referred to as whistleblower protection.
Retaliation/reprisal can include termination, demotion, discipline, harassment, intimidation, discrimination, decreased pay, loss of benefits, and reassignment that negatively impacts your prospects for career advancement within the company.
To submit a whistleblower retaliation complaint, you need to file a formal claim with the OSHA within 30 days of the retaliatory action. The OSHA will investigate your claim, and if the agency discovers evidence of retaliation it will require the employer to take actions to make the whistleblower whole.
If the employer refuses to comply, the OSHA can take legal action against the employer and seek justice through a settlement agreement or court judgement. Regardless of the OSHA’s methods for pursuing justice on behalf of the employee, the employee won’t incur any legal costs.
OSHA-approved state programs also have whistleblower protection provisions. Similar to the OSHA, these programs can launch an investigation into the alleged employer retaliation, require restitution for the whistleblower, and seek justice through a legal settlement or court judgement.
The statute of limitations for filing a whistleblower complaint with a state program is usually 30 days, though some programs offer a longer time period.
The OSH Act allows whistleblowers who have been retaliated against to file a civil lawsuit in federal court against their employer. States with their own programs and/or workplace safety laws typically allow whistleblower retaliation lawsuits in state court, too. In a successful civil action, the whistleblower may receive damages of up to three-times the value of their lost income.
Need Help With An Employment Law Issue?
The state of Arizona is a great place to live and work, but knowing the employment laws will help you a lot. Whether you are a newcomer to the state or a lifelong resident, understanding your workplace protections is good for your career, and the more you know, the better.
Employment law issues can cause extreme distress and can affect productivity on the job. If you are being harassed at work, or dealing with any other employment issue, consider talking to our AZ employment law team to help you settle your case.
Call our Employment Law team at (480) 464-1111 to discuss your case today.
