Chapter 16 OSHA PDF

Chapter 16: Occupational Safety and Health Act Regulatory Agency Responsibilities ◼ Environmental Protection Agency (EPA) ◼ Hazardous materials that enter the environment ◼ Air ◼ Water ◼ Waste ◼ Occupational Safety and Health Administration (OSHA)...

Chapter 16: Occupational Safety and Health Act Regulatory Agency Responsibilities ◼ Environmental Protection Agency (EPA) ◼ Hazardous materials that enter the environment ◼ Air ◼ Water ◼ Waste ◼ Occupational Safety and Health Administration (OSHA) ◼ Hazardous materials and conditions within the facility ◼ OSHA/EPA MOU – information sharing http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=238 &p_table=mou Occupational Safety and Health Act ◼ The OSHAct was enacted in 1970 ◼ It created the Occupational Safety and Health Administration (OSHA) https://www.youtube.com/watch?v=b1N48Z 5HerA (stop at 12:28) ◼ Also created NIOSH – p. 1040 ◼ Now under CDC ◼ And created the OSHRC ◼ Coverage – p. 1009-1010 Not Covered List ◼ Who is not covered – p. 1010 ◼ 10 or fewer employees do not need to keep injury/illness records (book is not correct) ◼ OSHA 300 log https://www.osha.gov/sites/default/files/OSHA- RK-Forms-Package.pdf ◼ 1904.1 - Partial exemption for employers with 10 or fewer employees https://www.osha.gov/laws- regs/regulations/standardnumber/1904/1904.1 ◼ Partially exempt industries https://www.osha.gov/recordkeeping/presentations/exempttable ◼ Federal, state, and municipal employees Not Covered List ◼ Federal Railroad Administration (p. 1010) ◼ Maritime that is under Coast Guard regs ◼ MSHA ◼ Surface and underground mines ◼ FAA (sort of) ◼ OSHA has jurisdiction for occupational safety on the ground and FAA takes over when the aircraft is “in operation” https://www.osha.gov/laws-regs/mou/2000-08-09 However, https://nypost.com/2023/06/16/airline-fined-15625-after-ground-crew-worker- ingested-into-plane-engine/ https://www.osha.gov/news/newsreleases/region4/06212023 ◼ OSHA and FAA signed an additional MOU to help protect flight attendants from hazard communication, bloodborne pathogens and noise http://www.faa.gov/news/press_releases/news_story.cfm?newsId=15074 Military Operations ◼ OSHA has jurisdiction in military operations that are not "uniquely military" ◼ Executive Order 12196-Occupational Safety and Health Programs for Federal Employees extends OSHA jurisdiction to all federal agencies "except military personnel and uniquely military equipment, systems, and operations” https://www.archives.gov/federal- register/codification/executive-order/12196.html Military Operations ◼ OSHA’s Field Operations Manual says "uniquely military equipment" includes equipment and systems designed by the Department of Defense that are unique to the national defense mission such as: Military aircraft, ships, and submarines; Artillery, tanks, and tactical vehicles; Naval operations, military flight operations, and associated research test and development activities; Missiles and missile sites; Military space systems; and Field maneuvers https://www.osha.gov/enforcement/directives/cpl-02-00-163/chapter-13 Military Operations ◼ However, OSHA has jurisdiction over workplaces and operations in the military that are similar to private sector industries, such as: Vessel, aircraft, and vehicle repair, overhaul, or modification (except for equipment trials); Construction; Medical services; Civil engineering or public works; Supply services; and Office work. State/Other Agencies ◼ Federal Agency Employees ◼ 1980 Executive Order 12196, Occupational Safety and Health Programs for Federal Employees ◼ Codified at 29 CFR 1960 ◼ OSHA cannot fine federal agencies for violations Postal Service ◼ On September 28, 1998, Congress amended the Occupational Safety and Health Act to make it applicable to the U.S. Postal Service in the same manner as any other employer subject to the Act ◼ “Public Law 105-241 the “Postal Employees Safety Enhancement Act” ◼ “What is most troubling about the Postal Service's safety record, however, is its annual workers' compensation payments. From 1992 to 1997, the Postal Service paid an annual average of $505 million in workers' compensation costs--placing them once again at the top of the Federal Government's list. Moreover, the Postal Service's annual contribution to workers' compensation amounts to almost one-third of the Federal program's $1.8 billion price tag. These facts are simply inexcusable and clearly justify the need for legislation. Better yet, this legislation would likely decrease the annual expenditures for workers' compensation because of a reduction in workplace injuries, illnesses, lost time and fatalities.” Senator Mike Enzi in introducing the law. https://www.congress.gov/congressional-record/volume-144/issue-67/senate-section/article/S5434-3 State/Other Agencies ◼ State/Local Government Employees ◼ State Plan States https://www.osha.gov/stateplans ◼ “There are currently 22 State Plans covering both private sector and state and local government workers, and seven State Plans covering only state and local government workers.” ◼ Oklahoma Department of Labor Public Employee Occupational Safety and Health (PEOSH) Refusal to Work (p. 1033) ◼ https://www.osha.gov/workers/right-to- refuse ◼ https://www.osha.gov/laws- regs/regulations/standardnumber/1977/ 1977.12#1977.12(b)(2) Whistleblower (p. 1033) ◼ https://www.osha.gov/sites/default/files /publications/OSHA3638.pdf Consultation ◼ Separate from OSHA Inspection Program ◼ https://www.osha.gov/consultation/dire ctory-text ◼ In Oklahoma, the OSHA Consultation Office is within the Oklahoma Department of Labor https://oklahoma.gov/labor/safety-and- health/workplace-safety/osha.html OSHA Standards ◼ General Industry – 29 CFR 1910 ◼ Construction – 29 CFR 1926 ◼ Agriculture – 29 CFR 1928 ◼ Maritime ◼ Shipyard – 29 CFR 1915 ◼ Marine Terminals – 29 CFR 1917 ◼ Longshoring – 29 CFR 1918 ◼ Gear Certification – 29 1919 OSHA Standards ◼ General Industry Standards (29 CFR 1910) https://www.osha.gov/laws-regs/regulations/standardnumber/1910 ◼ Construction Standards (29 CFR 1926) https://www.osha.gov/laws-regs/regulations/standardnumber/1926 ◼ Health Standards and Permissible Exposure Limits (PELs) (29 CFR 1910 Subpart Z) https://www.osha.gov/laws- regs/regulations/standardnumber/1910 ◼ Recordkeeping (29 CFR 1904) Requirements for employers to maintain logs of work-related injuries and illnesses ◼ Worker Rights and Protections ◼ The right to training, the right to know about workplace hazards, and the right to file complaints without retaliation Examples of OSHA Standards ◼ Performance Standards ◼ Asbestos in General Industry 1910.1001 https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.1001 ◼ Asbestos in Construction 1926.1101 https://www.osha.gov/laws-regs/regulations/standardnumber/1926/1926.1101 ◼ Specification Standards ◼ Ladders in General Industry 1910.1023 https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.23 OSHA Inspections ◼ Prompted by: ◼ Imminent danger ◼ Catastrophes – fatalities or hospitalizations ◼ Fatalities must be reported within 8 hours ◼ Inpatient hospitalization, amputation, loss of eye within 24 hours ◼ Worker complaints (or their representative) ◼ Referrals ◼ Targeted inspections – particular hazards, high injury rates ◼ Follow-up inspections Inspections https://www.youtube.com/watch?v=HA6bixDzeLY https://www.osha.gov/sites/default/files/publications/factsheet- inspections.pdf ◼ Presentation of Credentials ◼ Opening Conference ◼ Walkaround ◼ Correct what can be corrected right away ◼ Closing Conference Inspections ◼ Employer rights: ◼ To verify inspector credentials ◼ To ask for a warrant (p. 1029) ◼ To limit the inspection to the area of the complaint ◼ To follow along with the inspector and make copies of any photographs/evidence collected ◼ To collect side-by-side samples ◼ During any management interviews, the employer has a right to be present ◼ During any other employee interviews, the employer does not have the right to be present ◼ To contest any citations or findings ◼ To an opening and closing conference Post Inspection ◼ If a citation is issued, it has to be posted for 3 days where employees can see it ◼ Even if the employer contests the citation ◼ 15 days to contest ◼ May request an information conference with OSHA Area Director ◼ May ask for clarification ◼ May ask for extension for abatement ◼ Area Director may reduce the fines Violations ◼ In order of increasing seriousness: ◼ de minimis ◼ other-than-serious ◼ serious ◼ willful ◼ repeat ◼ failure to correct prior violations ◼ Found in 29 CFR Part 190 ◼ 2023 costs https://www.osha.gov/penalties OSHRC (p. 1039) ◼ Employers must challenge a citation within 15 days ◼ Admistrative law judge appointed to hear case ◼ Cases and outcomes published at https://www.oshrc.gov/ ◼ Search for cases at https://www.oshrc.gov/decisions-search/ OSHRC ◼ The court system and case law have helped frame the interpretation of regulations when there is a disagreement between the regulator and the regulated and a lawsuit entails. Often, the wording in the regulation is vague, or the employer interprets a section of a regulation one way and the regulator expects another. When these cases are heard, the judicial branch is supposed to seek to identify the congressional intent of the law, and the final judicial interpretation of what the regulations actually mean becomes case law. From that point forward, the case law interpretation becomes enforceable. https://web.archive.org/web/20150312225936/http://eil.stanfor d.edu/regnet/RegulatoryProcessA.htm OSHA's General Duty Clause ◼ There are two areas of OSHA law that you might find in developing your case briefs that should be clarified. The first is OSHA's General Duty Clause. In order for OSHA to invoke the General Duty Clause, when there is not an existing OSHA regulation that addresses the hazard, the following conditions must all be present: 1. whether a hazard exists; 2. whether that hazard is recognized; 3. whether the hazard is causing, or is likely to cause, serious physical harm to employees; and 4. whether a feasible means exists to reduce the hazard. General Duty Clause ◼ Tuberculosis exposures ◼ Heat stress ◼ Ergonomics ◼ Ergo document in Canvas Congressional Review Act and Ergonomics ◼ The CRA was enacted as part of the Small Business Regulatory Enforcement Fairness Act in 1996 ◼ The CRA requires agencies to submit their rules to both houses of Congress and the Government Accountability Office (GAO) before they may take effect ◼ The CRA provides Congress with special procedures, in the form of a joint resolution of disapproval, under which to consider legislation to overturn rules. If a CRA joint resolution of disapproval is approved by both houses of Congress and signed by the President, or if Congress successfully overrides a presidential veto, the rule at issue cannot go into effect or continue in effect. Congressional Review Act and Ergonomics ◼ In addition, a rule subject to an enacted joint resolution of disapproval “may not be reissued in substantially the same form, and a new rule that is substantially the same … may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution.” Employee Misconduct ◼ The second is an often-used defense of “employee misconduct.” The argument typically goes that the employer told the employee to do it properly and it isn’t the employer’s fault the employee chose not to do so. ◼ The “unpreventable employee misconduct defense” is a hard case to prove, but here is a summary https://www.workforcebulletin.com/2012 /10/24/osha-faq-series-faq-2-unpreventable- employee-misconduct-defense/ of the issue from a law point of view. Employee Misconduct ◼ To summarize, there must also be four conditions: 1. The employer had in place a work rule adequate to prevent the violation; 2. The employer effectively communicated the rule to employees; 3. The employer established methods for discovering violations of work rules, and yet did not know about an isolated violation of the work rules; and 4. The employer can show documented enforcement of the rule when violations were discovered. Homework