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OSHA The OSH Act

OSH Act – Section 12 – The Occupational Safety and Health Review Commission

The Occupational Safety and Health Review Commission

The mission of the Occupational Safety and Health Review Commission is to provide fair and timely adjudication of workplace safety and health disputes between the Department of Labor and employers. In doing this, the Commission plays a vital role in encouraging safe and healthy workplaces for American workers.

The cases in which the Review Commission renders decisions arise from inspections conducted by a Federal agency separate from the Review Commission, the Occupational Safety and Health Administration (OSHA), which is a part of the Department of Labor. OSHRC, or the Review Commission, and OSHA were created by the Occupational Safety and Health Act of 1970, but the Act mandated that the Review Commission be an independent agency (i.e., not part of another Federal department) to ensure that parties to agency cases receive impartial hearings.

Upon notification that an employer or affected employees have contested a citation, OSHRC creates a case file. The Review Commission’s Office of the Executive Secretary, which functions much like the court clerk’s office, assigns docket numbers to each contest, or new case, at its National Office in Washington, D.C. All affected parties are then notified by mail of the docketing of the case.

Thereafter, the Chief ALJ assigns the case to a judge in Washington, D.C. or one of the agency’s regional offices, in Atlanta and Denver.

Commission Procedures

OSHRC’s Rules of Procedure provide for two levels of adjudication. The first level is before an Administrative Law Judge. The second level is review of the ALJ’s decisions by the agency’s Commissioners in Washington if one of the parties petitions for review.

The OSHRC Rules of Procedure may be found in Part 2200 of Title 29 of the Code of Federal Regulations, available here for downloading, or copies may be obtained from the Review Commission. These rules govern two types of proceedings. The more formal conventional proceedings involve the use of pleadings, discovery, a hearing and post-hearing briefing or argument. The less formal method, called Simplified Proceedings, employs fewer legal procedures and is permitted in certain less complex cases and can be requested by either party. In Simplified Proceedings, there are no formal pleadings and early discussion among the parties to narrow the disputed issues is required. Details on Simplified Proceedings are in the Rules of Procedure. Guide booklets to both conventional procedures and Simplified Proceedings are available here for downloading and from the Review Commission.

Once a Hearing is Scheduled

Upon receipt of a case by the assigned ALJ, a hearing date is set and a hearing site is selected as close as possible to where the alleged violation(s) occurred. On the hearing date, the ALJ from the Review Commission conducts the adversarial proceedings in accordance with the Commission’s Rules of Procedure.

A cited employer or an affected employee may appear with or without legal counsel. The Secretary of Labor, OSHA’s representative, is represented by a government attorney who bears the burden of proving the violation(s).

Upon hearing all of the evidence, the judge will issue a written decision based on findings of fact and conclusions of law. As part of the judge’s decision, the citation(s) will be either affirmed, modified or vacated. The decision becomes final in 30 days unless within that period one of the parties requests that the decision of the ALJ be directed for review by the three OSHRC Commissioners in Washington, D.C. If one of the three Commissioners directs that the case be reviewed, they review all of the evidence, briefs, arguments and the ALJ’s decisions. Thereafter, they render a decision to affirm, modify or vacate citations and penalties that have been proposed by OSHA.

Commission decisions, including Administrative Law Judge decisions, are available from the Review Commission and more recent decisions can be accessed and downloaded from this web site.

If review of the ALJ decisions by the Commissioners is not directed, the petitioning party may request review by an appropriate U.S. Circuit Court of Appeals. Any person who is adversely affected or aggrieved may also appeal the decision of the three OSHRC Commissioners to an appropriate United States Court of Appeals. Review by a Court of Appeals must be sought within 60 days after the Commission’s final decision is issued.

References:

OSHA. (1970). OSH Act of 1970. https://www.osha.gov/laws-regs/oshact/completeoshact

OSHRC (2006). Occupational Safety & Health Review Commission. https://www.oshrc.gov

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OSHA The OSH Act

OSH Act – Section 10 & 11 – Procedure of Enforcement & Judicial Review

Section 10 – Procedure of Enforcement

After OSHA has conducted an inspection, if the establishment is going to be issued a penalty, it must be done within 6 months of the inspection and be sent via certified mail.

Once the citations are received, the employer has 15 working days to contest the citation and/or proposed penalty. If the employer fails to notify OSHA or misses the 15 day deadline, all proposed penalties will be deemed a final order and not longer allowed to be reviewed by any court or agency.

However, if the employer does notify the agency of its intent to contest the proposed penalty or citation within the 15 days, then the matter is turned over to the Commission. The Commission will then review the inspection, citation, penalties, and issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary’s citation or proposed penalty, or directing other appropriate relief, and such order shall become final thirty days after its issuance.

Upon a showing by an employer of a good faith effort to comply with the abatement requirements of a citation, and that abatement has not been completed because of factors beyond his reasonable control, the Secretary, after an opportunity for a hearing as provided in this subsection, shall issue an order affirming or modifying the abatement requirements in such citation. The rules of procedure prescribed by the Commission shall provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings under this subsection.

Section 11 – Judicial Review

If within 60 days of receiving the Commission’s findings, the establishment may file an appeal with the United States Court of Appeals in the District of Columbia. No objection that has not been urged before the Commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. If any party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Commission, the court may order such additional evidence to be taken before the Commission and to be made a part of the record. The Commission may modify its findings as to the facts, or make new findings, by reason of additional evidence so taken and filed, and it shall file such modified or new findings, which findings with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive, and its recommendations, if any, for the modification or setting aside of its original order. Upon the filing of the record with it, the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the Supreme Court of the United States, as provided in section 1254 of title 28, United States Code.

  1. No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.
  2. Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.
  3. Within 90 days of the receipt of a complaint filed under this subsection the Secretary shall notify the complainant of his determination under paragraph 2 of this subsection.

References:

OSHA. (1970). OSH Act of 1970. https://www.osha.gov/laws-regs/oshact/completeoshact

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OSHA The OSH Act

OSH Act – Section 8 & 9 – Inspections, Investigations, Recordkeeping & Citations

Section 8 – Inspections, Investigations, and Recordkeeping

In Section 8 of the Occupational Safety and Health Act (OSH Act) it spells out exactly how and inspection and investigation will be conducted. The very first thing that the OSH Act states is that “upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized —

  1. to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and
  2. to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.”

The OSH Act also requires that while conducting the inspection may require the attendance, testimony, and production of evidence under oath and goes on to say that failure to produce or cooperate may result in being held in contempt and subject to the court.

We are required to keep records that are required by the OSH Act as well as standards and is spelled out in section c, 1-3:

  1. Each employer shall make, keep and preserve, and make available to the Secretary or the Secretary of Health and Human Services, such records regarding his activities relating to this Act as the Secretary, in cooperation with the Secretary of Health and Human Services, may prescribe by regulation as necessary or appropriate for the enforcement of this Act or for developing information regarding the causes and prevention of occupational accidents and illnesses. In order to carry out the provisions of this paragraph such regulations may include provisions requiring employers to conduct periodic inspections. The Secretary shall also issue regulations requiring that employers, through posting of notices or other appropriate means, keep their employees informed of their protections and obligations under this Act, including the provisions of applicable standards.
  2. The Secretary, in cooperation with the Secretary of Health and Human Services, shall prescribe regulations requiring employers to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job.
  3. The Secretary, in cooperation with the Secretary of Health and Human Services, shall issue regulations requiring employers to maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents which are required to be monitored or measured under section 6. Such regulations shall provide employees or their representatives with an opportunity to observe such monitoring or measuring, and to have access to the records thereof. Such regulations shall also make appropriate provision for each employee or former employee to have access to such records as will indicate his own exposure to toxic materials or harmful physical agents. Each employer shall promptly notify any employee who has been or is being exposed to toxic materials or harmful physical agents in concentrations or at levels which exceed those prescribed by an applicable occupational safety and health standard promulgated under section 6, and shall inform any employee who is being thus exposed of the corrective action being taken.

The OSH Act also allow that a representative of the employer and an authorized employee representative to assist and observe the actual investigation or inspection that is being conducted. Where there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.

  1. Any employees or representative of employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Secretary or his authorized representative of such violation or danger. Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employees or representative of employees, and a copy shall be provided the employer or his agent no later than at the time of inspection, except that, upon the request of the person giving such notice, his name and the names of individual employees referred to therein shall not appear in such copy or on any record published, released, or made available pursuant to subsection (g) of this section. If upon receipt of such notification the Secretary determines there are reasonable grounds to believe that such violation or danger exists, he shall make a special inspection in accordance with the provisions of this section as soon as practicable, to determine if such violation or danger exists. If the Secretary determines there are no reasonable grounds to believe that a violation or danger exists he shall notify the employees or representative of the employees in writing of such determination.
  2. Prior to or during any inspection of a workplace, any employees or representative of employees employed in such workplace may notify the Secretary or any representative of the Secretary responsible for conducting the inspection, in writing, of any violation of this Act which they have reason to believe exists in such workplace. The Secretary shall, by regulation, establish procedures for informal review of any refusal by a representative of the Secretary to issue a citation with respect to any such alleged violation and shall furnish the employees or representative of employees requesting such review a written statement of the reasons for the Secretary’s final disposition of the case.

In Section G, it allows OSHA to publish the findings of any inspection or investigation conducted on any employer and they can be found here: https://www.osha.gov/pls/imis/establishment.html

Section 9 – Citations

Section 9 is where we find a small, but significant section on how citations are handled:

  • (a) If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The Secretary may prescribe procedures for the issuance of a notice in lieu of a citation with respect to de minimis violations which have no direct or immediate relationship to safety or health.
  • (b) Each citation issued under this section, or a copy or copies thereof, shall be prominently posted, as prescribed in regulations issued by the Secretary, at or near each place a violation referred to in the citation occurred.
  • (c) No citation may be issued under this section after the expiration of six months following the occurrence of any violation.

If an establishment is issued a Notice of Proposed citation, the penalty for the citation will fall under the following criteria, based on severity: https://www.osha.gov/penalties

References:

OSHA. (1970). OSH Act of 1970. https://www.osha.gov/laws-regs/oshact/completeoshact

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OSHA The OSH Act

OSH Act – Section 6 & 7 – Standards & Advisory Committee

Section 6 – Occupational Safety & Health Standards

Most people know that the Occupational Safety and Health Administration (OSHA) adopts standards for Construction, but they also adopt standards for General Industry (sites after construction), Agricultural (farming), and Maritime (Ships).

Some of the standards that OSHA adopts are:

  • Trenching & excavation
  • Confined spaces
  • Chemical exposure
  • Machine Guarding
  • Personal protective equipment (PPE)
  • Fall Protection
  • Electrical Safety including lock out / tag out

Another requirement that OSHA has, that is included in the OSH Act, is that the training must be conducted in the language and vocabulary that workers can understand. Meaning, if an employee’s primary language is in Portuguese, then the training must be written and presented in Portuguese. Additionally, the vocabulary part means that extra time must be taken to ensure that complex concepts or phrases must be fully explained so that everyone can understand the concept.

For example, Authorized Person:

General Industry Definition:

29 CFR 1910.21(b) states, “Authorized means an employee who the employer assigns to perform a specific type of duty, or allows in a specific location or area.”

Construction Definition:

29 CFR 1910.32(d) states, “Authorized person” means a person approved or assigned by the employer to perform a specific type of duty or duties or to be at a specific location or locations at the job site.”

So what does this mean? Well, when you see a sign like this:

It means that only employees of the company or subcontractor are allowed to enter this place. If your employer hasn’t “authorized” you, and you are injured, or worse, they are not liable because you entered without permission.

The Standards-Setting Process

OSHA has the authority to issue new or revised occupational safety and health standards. The OSHA standards-setting process involves many steps and provides many opportunities for public engagement. OSHA can begin standards-setting procedures on its own initiative or in response

to recommendations or petitions from other parties, including:

• The National Institute for Occupational Safety and Health (NIOSH), the research agency for occupational safety and health. (For more information, call 1-800-CDC-INFO (1-800-232-4636) or visit the agency’s website at www.cdc.gov/niosh);

  • State and local governments;
  • Nationally recognized standards-producing organizations;
  • Employer or labor representatives; and
  • Any other interested parties.

When OSHA is considering whether to develop a new or revised standard, the Agency often publishes a Request for Information (RFI) or an Advance Notice of Proposed Rulemaking (ANPRM) in the Federal Register to obtain information and views from interested members of the public. OSHA will also frequently hold stakeholder meetings with interested parties to solicit information and opinions on how the Agency should proceed with the regulation. When OSHA publishes an RFI or ANPRM, interested parties can submit written comments at www.regulations.gov, where all information and submissions are made public.

If OSHA decides to proceed with issuing a new or revised regulation, it must first publish a Notice of Proposed Rulemaking (NPRM) in the Federal Register and solicit public comment. The NPRM contains a proposed standard along with OSHA’s explanation of the need for the various requirements in that proposed standard.

Interested parties are invited to submit written comments through www.regulations.gov and OSHA will often hold public hearings in which stakeholders can offer testimony and provide information to assist the Agency in developing a final standard. After considering all of the information and testimony provided, OSHA develops and issues a final standard that becomes enforceable.

Each spring and fall, the Department of Labor publishes in the Federal Register a list of all regulatory projects underway. The Regulatory Agenda provides a projected schedule for these projects to inform stakeholders of the Agency’s regulatory priorities and enable interested parties to take advantage of opportunities to participate in the regulatory process. Current and past issues of the Regulatory Agenda can be accessed on OSHA’s Law and Regulations page at www.osha.gov/ law-regs.

Input from Small Business

The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) gives small businesses help in understanding and complying with OSHA regulations and allows them a voice in developing new regulations. Under SBREFA, OSHA must:

  • Produce Small Entity Compliance Guides for some agency rules;
  • Be responsive to small business inquiries about complying with the Agency’s regulations;
  • Submit final rules to Congress for review;
  • Have a penalty reduction policy for small businesses; and
  • Involve small businesses in developing proposed rules expected to significantly affect a large number of small entities through Small Business Advocacy Review Panels.

More information about OSHA standards and the standards-setting process is available on OSHA’s website at www.osha.gov. Standards can be viewed on OSHA’s Law and Regulations page at www.osha.gov/law-regs.

Section 7 – Advisory Committee

In Section 7 of the Occupational Safety and Health Act of 1970 (OSH Act) it covers how OSHA will assist in the standard-setting functions under Section 7 of the OSH Act. The Advisory Committee consists of no more than 15 members that shall be appointed by the secretary and if they come from private industry must be paid as consultants. All meets are open to the public and OSHA has a page that is accessible from the internet for the Committees on Construction, General Industry, and Maritime and can be found here: https://www.osha.gov/advisorycommittees

Each such committee shall consist of not more than fifteen members and shall include as a member one or more designees of the Secretary of Health and Human Services, and shall include among its members an equal number of persons qualified by experience and affiliation to present the viewpoint of the employers involved, and of persons similarly qualified to present the viewpoint of the workers involved, as well as one or more representatives of health and safety agencies of the States

References:

OSHA. (1970). OSH Act of 1970. https://www.osha.gov/laws-regs/oshact/completeoshact

Engaging the Adult Learner

For many adults, sitting in a training classroom is something to be avoided at all costs. However, training is a necessary part of today’s workplace. Companies must provide training to their employees. To help the reluctant learner, trainers can use a variety of techniques that will get the students interested and eager to participate in the training

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OSHA The OSH Act

OSH Act – Section 5 – The General Duties Clause

OSH Act – The General Duties Clause

Section 5 of the Occupational Safety and Health Act (OSH Act) is probably the most well-known part of the OSH Act. When the Occupational Health & Safety Administration (OSHA) does not have a specific standard or a necessary part of a standard to the site, they will use the General Duty Clause (OSH Act (5)(a)(1)). Another way to look at the General Duty Clause is the mother of all catch-alls!

The General Duty Clause in the OSH Act is actually titled Section 5 – Duties and reads,

“(a) Each employer —

(1) shall furnish to each of his employee’s 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;

(2) shall comply with occupational safety and health standards promulgated under this Act.

(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct. (OSHA, 1970)”

Just to clarify 5(a)(1): who can “recognize” a hazard? Anyone! The employer, employee, insurance carrier, consultant, anyone. Once the employer is informed of a hazard, it then becomes their duty to correct it as soon as possible.

For 5(a)(2) and (b) the employer shall (will) comply with occupational safety and health standards as adopted AND their employees must also comply with the same standards. So what does this mean? It means that all employers AND employees must play by the same set of rules.

If employers do not follow the rules, then they are subject to fines and penalties from OSHA. If employees do not follow the rules, they are subject to disciplinary action, including termination of their employment.

Does OSHA issue citations to employees?

The short answer is NO, but if you stopped reading the OSH Act at 5(b), you might think so. However, in Section 9 of the OSH Act (written about later) clearly limits OSHA’s ability to cite only the employer. You can also find a Letter of Interpretation (LOI) here: https://www.osha.gov/laws-regs/standardinterpretations/1990-10-05

Is the employer required to issue disciplinary action?

No and care should be taken when disciplinary action is taken. In fact, an OSHA administrator gave a speech a 2018 and stated, “Employee misconduct is NOT a root cause. An employee not following a rule might certainly be a cause, but you can’t end your investigation there. What part of your safety and health program failed to catch this, tolerated the deviation, or perhaps even condoned it?”

Make sure that your safety culture isn’t causing or allowing your employees to work unsafely. Site and work inspections should be conducted to ensure all procedures are being followed. When deficiencies are noted, they should be documented and the affected employees should have documented retraining. Then if the problem persists, then disciplinary action should be considered with the help of your Human Resources Department.

Remember, as outlined in the ISHN research conducted in 2017, “found that 69 percent want supervisors (usually the ones at the sharp end of discipline confrontations) to be more safety leaders, not just enforcers. Almost all readers (97 percent) want supervisors to inspire and influence worker engagement. Nine in ten (90 percent) say supervisors must give positive reinforcement to employees. Less than one-third (32 percent) say it’s important to develop supervisors’ abilities to deal with resistant, confrontational or apathetic workers. Most of those who do want aggressive discipline tactics are executive managers, not safety professionals – evidence of an old-fashioned, top-down, command and control culture.”(ISNH, 2018)

References:

ISNH, (2018), Employee safety discipline ain’t what it used to be. The focus is on “what failed?” not “who failed?” https://www.ishn.com/articles/109664-employee-safety-discipline-aint-what-it-used-to-be

OSHA. (1970). OSH Act of 1970. https://www.osha.gov/laws-regs/oshact/completeosha

Leadership Mindset

High-level leadership has always been a heightened challenge; even more so during these times.

Battling Distractions, Peer Pressure and Complacency