Environmental science

Occupational Safety and Health Law Handbook Second Edition

authors

Melissa A. Bailey Margaret S. Lopez Eric J. Conn Marshall Lee Miller Frank D. Davis John B. O’Loughlin, Jr. William K. Doran Arthur G. Sapper Katie A. Duggin Rachel Schaffer John B. Flood Francina M. Segbefia Lauren Handel Kenneth B. Siepman Michael T. Heenan

of:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. McDermott Will & Emery LLP Baise & Miller, P.C. Weil, Gotshal & Manges, LLP

Government Institutes An imprint of

The Scarecrow Press, Inc. Lanham, Maryland • Toronto • Plymouth, UK

2008

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Published in the United States of America by Government Institutes, an imprint of The Scarecrow Press, Inc. A wholly owned subsidiary of The Rowman & Littlefield Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200 Lanham, Maryland 20706 http://govinst.scarecrowpress.com

Estover Road Plymouth PL6 7PY United Kingdom

Copyright © 2008 by Government Institutes

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of the publisher.

The reader should not rely on this publication to address specific questions that apply to a particular set of facts. The author and the publisher make no representation or warranty, express or implied, as to the completeness, correctness, or utility of the information in this publication. In addition, the author and the publisher assume no liability of any kind whatsoever resulting from the use of or reliance upon the contents of this book.

�™ The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48-1992. Manufactured in the United States of America.

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Occupational Safety and Health Law Handbook Second Edition

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Summary Contents

Chapter 1 Occupational Safety and Health Act . . . . . . . . . . . . . 1

Marshall Lee Miller

Chapter 2 OSHA: The Rulemaking Process . . . . . . . . . . . . . . . . 49

Margaret S. Lopez and Francina M. Segbefia

Chapter 3 The Duty to Comply with Standards . . . . . . . . . . . . . 65

Arthur G. Sapper

Chapter 4 The General Duty Clause . . . . . . . . . . . . . . . . . . . . . 83

William K. Doran and Katie A. Duggin

Chapter 5 Recordkeeping . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

Melissa A. Bailey

Chapter 6 Employers’ and Employees’ Rights . . . . . . . . . . . . . 143

John B. O’Loughlin, Jr.

Chapter 7 Refusal to Work and Whistleblower Protection . . . . 155

Kenneth B. Siepman

Chapter 8 Hazard Communication . . . . . . . . . . . . . . . . . . . . . 169

John B. Flood

Chapter 9 Voluntary Safety and Health Self-Audits . . . . . . . . . 191

Michael T. Heenan and Margaret S. Lopez

Chapter 10 Inspections and Investigations . . . . . . . . . . . . . . . . 207

Eric J. Conn

Chapter 11 Understanding and Contesting OSHA Citations . . . 221

Lauren Handel

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Chapter 12 Criminal Enforcement of Violations . . . . . . . . . . . . 243

Marshall Lee Miller

Chapter 13 Judicial Review of Enforcement Actions . . . . . . . . 251

John B. O’Loughlin, Jr.

Chapter 14 Imminent Danger Inspections . . . . . . . . . . . . . . . . 263

Frank D. Davis

Chapter 15 OSHA-Approved State Plans . . . . . . . . . . . . . . . . . . 279

Rachel Schaffer

Appendix: Occupational Safety and Health Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331

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Contents

Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xix

About the Authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxi

Chapter 1 Occupational Safety and Health Act . . . . . . . . . . . . . 1

1.0 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Comparison of OSHA and EPA . . . . . . . . . . . . . . . . . . . . . . . . 2 OSHA, the Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2.0 Legislative Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Purpose of the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Coverage of the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Exemptions from the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Telecommuting and Home Workplaces . . . . . . . . . . . . . . . . . . . 6

3.0 Scope of OSHA Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Areas Covered by the OSHA Standards . . . . . . . . . . . . . . . . . . . 7 Overview of Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Overview of Health Standards . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Overview of Safety Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

4.0 Standard Setting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Consensus Standards: Section 6(a) . . . . . . . . . . . . . . . . . . . . . . 11 Standards Completion and Deletion Processes . . . . . . . . . . . . . 12 Permanent Standards: Section 6(b) . . . . . . . . . . . . . . . . . . . . . . 12 Emergency Temporary Standards . . . . . . . . . . . . . . . . . . . . . . . 15 General Duty Clause, 5(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Feasibility and the Balancing Debate . . . . . . . . . . . . . . . . . . . . 16

5.0 Variances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Temporary Variances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Permanent Variances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

6.0 Compliance and Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Field Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Role of Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Training and Competence of Inspectors . . . . . . . . . . . . . . . . . . 22 Citations, Fines, and Penalties . . . . . . . . . . . . . . . . . . . . . . . . . 22 OSHA Citation and Penalty Patterns . . . . . . . . . . . . . . . . . . . . 23 Communicating and Enforcing Company Rules . . . . . . . . . . . 25 Warrantless Inspections: The Barlow Case . . . . . . . . . . . . . . . . 26

7.0 Recordkeeping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Accident Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Monitoring and Medical Records . . . . . . . . . . . . . . . . . . . . . . . 28

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Hazard Communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Access to Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Programmatic Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

8.0 Refusal to Work and Whistle-blowing . . . . . . . . . . . . . . . . . . . . 30 Refusal to Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Protection of Whistle-blowing . . . . . . . . . . . . . . . . . . . . . . . . . 30

9.0 Federal and State Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Federal Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 State Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

10.0 State OSHA Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Critiques . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

11.0 Consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Alliances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

12.0 Overlapping Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

13.0 Occupational Safety and Health Review Commission . . . . . . . 37 OSHRC Appeal Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Limitations of the Commission . . . . . . . . . . . . . . . . . . . . . . . . 38

14.0 National Institute for Occupational Safety and Health . . . . . . 39 In Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 In Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

15.0 Hazard Communication Regulations . . . . . . . . . . . . . . . . . . . 40 Reason for the Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Scope and Components . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Hazard Evaluation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Trade Secrets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Federal Preemption Controversy . . . . . . . . . . . . . . . . . . . . . . . 44

16.0 Ergonomics Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Scope of the Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Scope of the Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

17.0 Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Chapter 2 The Rulemaking Process . . . . . . . . . . . . . . . . . . . . . . 49

1.0 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

2.0 The Rulemaking Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Petitions for Rulemaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 NIOSH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Advisory Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

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NACOSH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 FACOSH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Advisory Committee on Construction Safety and Health . . . . 52 Identifying Potential Hazards . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Request for Information and Advanced Notice of

Rulemaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Notice of Proposed Rulemaking (NPRM) . . . . . . . . . . . . . . . . 53 Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 The Final Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

3.0 Negotiated Rulemaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

4.0 Other Applicable Statutes Concerning Rulemaking . . . . . . . . . 56

5.0 Delays in Rulemaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

6.0 Emergency Temporary Standards . . . . . . . . . . . . . . . . . . . . . . . 59

7.0 Variances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Temporary Variance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Permanent Variance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Interim Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

8.0 State Law Standards/Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . 61 State Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

9.0 Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

Chapter 3 The Duty to Comply with Standards . . . . . . . . . . . . . 65

1.0 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

2.0 Applicability of OSHA Standards . . . . . . . . . . . . . . . . . . . . . . . 65 The General Principle of Preemption . . . . . . . . . . . . . . . . . . . . 65 Special Applicability Problems . . . . . . . . . . . . . . . . . . . . . . . . . 66

3.0 General Principles of the Duty to Comply . . . . . . . . . . . . . . . . 67 The Exposure Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 To Whose Employee Does the Duty Run? . . . . . . . . . . . . . . . . 69 The Multi-Employer Worksite Liability Rules . . . . . . . . . . . . . 69 General Construction Contractors . . . . . . . . . . . . . . . . . . . . . . . . 70 Legal Status of the Multi-Employer Liability Rules . . . . . . . . . . . 71 Nonconstruction Applications of the

Multi-Employer Liability Rules . . . . . . . . . . . . . . . . . . . . . 71 Multi-Employer Worksite Defense Rules . . . . . . . . . . . . . . . . . 72

4.0 Actual or Constructive Knowledge . . . . . . . . . . . . . . . . . . . . . . 73

5.0 Additional Elements That OSHA Must Sometimes Prove . . . . . 73

6.0 The Employer’s Substantive Affirmative Defenses . . . . . . . . . . . 74 Infeasibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

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The Infeasibility Element of the Defense . . . . . . . . . . . . . . . . . 75 The Alternative Measures Element of the

Infeasibility Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 The Greater Hazard Defense . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Unpreventable Employee Misconduct . . . . . . . . . . . . . . . . . . . 78 Invalidity of the Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Violation of Statutory Procedural Requirements . . . . . . . . . . . 79 Violation of Constitutional Requirement of

Fair Notice of Standard’s Requirements . . . . . . . . . . . . . . 79 De Minimis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Chapter 4 The General Duty Clause . . . . . . . . . . . . . . . . . . . . . 83

1.0 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

2.0 Who Is Protected by the General Duty Clause? . . . . . . . . . . . . . 86

3.0 The Existence of a Hazard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

4.0 Recognized Hazard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Industry Recognition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Employer Recognition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 Obvious Hazard Recognition . . . . . . . . . . . . . . . . . . . . . . . . . . 93

5.0 Causing or Likely to Cause Death or Serious Physical Harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

6.0 Feasible Measures to Correct the Hazard . . . . . . . . . . . . . . . . . . 95

7.0 Practical Enforcement of the General Duty Clause . . . . . . . . . . 97

8.0 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Chapter 5 Recordkeeping . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

1.0 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

2.0 Statutory Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

3.0 Injury and Illness Recordkeeping . . . . . . . . . . . . . . . . . . . . . . 103 History of the Recordkeeping Requirements . . . . . . . . . . . . . 103 OSHA’s Authority for Requiring Employers to

Keep Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 Identifying Injuries and Illnesses that Must be Recorded . . . . 104 Determining Whether an Injury or Illness Has Occurred . . . 105 Defining “Work-Related”: The Geographic Presumption . . . . 105 Preexisting Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 The Employer’s Obligation to Determine

Work-Relatedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Exceptions to Work-Relatedness . . . . . . . . . . . . . . . . . . . . . . . 108

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Injuries or Illnesses that Occur While Traveling . . . . . . . . . . . 111 Injuries and Illnesses Resulting from Work at Home . . . . . . . 112 New Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 Recording Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Special Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Hearing Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Needlestick Injuries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 Medical Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Tuberculosis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 Recordkeeping Forms and Retention Periods . . . . . . . . . . . . . 125 Employee Involvement and Access to Records . . . . . . . . . . . . 126 Privacy Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 Reporting Injuries and Fatalities . . . . . . . . . . . . . . . . . . . . . . . 128 Exemptions from Recordkeeping Requirements . . . . . . . . . . . 129

4.0 OSHA Standards Requiring Written Documents . . . . . . . . . . 130 Safety Standard Recordkeeping Requirements . . . . . . . . . . . . 130 The Health Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 The Typical Health Standard . . . . . . . . . . . . . . . . . . . . . . . . . 134 Health Standards Applicable to General Industry . . . . . . . . . . 135 Health Communication and Bloodborne Pathogens . . . . . . . 136 Hazard Communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 Bloodborne Pathogens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 The Access to Employee Exposure and Medical Records

Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

5.0 Using Records to Prove Compliance . . . . . . . . . . . . . . . . . . . . 140

Chapter 6 Employers’ and Employees’ Rights . . . . . . . . . . . . . 143

1.0 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

2.0 Employers’ Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 Inspections and Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 Challenging Citations and Civil Penalties . . . . . . . . . . . . . . . 145 Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 Participation in Rulemakings . . . . . . . . . . . . . . . . . . . . . . . . . 146 Protection of Trade Secrets . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

3.0 Employees’ Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 Refusal to Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Protection from Discrimination . . . . . . . . . . . . . . . . . . . . . . . 150 Participation in Inspections and Enforcement . . . . . . . . . . . . 151 Access to Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152

4.0 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

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Chapter 7 Refusal to Work and Whistleblower Protection . . . . 155

1.0 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

2.0 Refusal to Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 Federal Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 Occupational Safety and Health Act . . . . . . . . . . . . . . . . . . . 156 Enforcing Rights under OSHA . . . . . . . . . . . . . . . . . . . . . . . . . 157 Secretary’s Burden in Litigation . . . . . . . . . . . . . . . . . . . . . . . . 158 Burden Shifting Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 National Labor Relations Act . . . . . . . . . . . . . . . . . . . . . . . . . 159 Protection under Section 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Comparison of Section 7 and Section 502 . . . . . . . . . . . . . . . . . 161 Cooperation between OSHA and the NLRB . . . . . . . . . . . . . . . 161 Arbitration and Collective Bargaining Agreements . . . . . . . . . 161 Collective Bargaining Agreements . . . . . . . . . . . . . . . . . . . . . . . 161 Arbitration not under a Collective Bargaining Agreement . . . . . 162 Deferral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 State Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 Common Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

3.0 Whistleblowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 Federal Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 Occupational Safety and Health Act . . . . . . . . . . . . . . . . . . . 166 Preemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 State Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Common Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

4.0 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

Chapter 8 Hazard Communication: Moving toward a Globally Harmonized System in the 21st Century . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

1.0 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

2.0 The Hazard Communication Standard . . . . . . . . . . . . . . . . . . 171 Key Purpose and Scope of Application . . . . . . . . . . . . . . . . . . 171 Key Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 Labels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174 Material Safety Data Sheets . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Training and Information for Employees . . . . . . . . . . . . . . . . 177 Hazard Communication Program . . . . . . . . . . . . . . . . . . . . . 178

3.0 Continued Problems with the HCS as the Impetus for Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179

4.0 The Global Harmonization System . . . . . . . . . . . . . . . . . . . . . 183 Overview of the GHS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

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Scope of Potential Changes under the GHS . . . . . . . . . . . . . . 184 When Will GHS Be Implemented and

Key Areas of Concern . . . . . . . . . . . . . . . . . . . . . . . . . . 187

5.0 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189

Chapter 9 Voluntary Safety and Health Self-Audits . . . . . . . . . 191

1.0 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191

2.0 The Significance of Voluntary Safety and Health Auditing . . . 192 Overview of Audits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 The Audit Team . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 Scope of the Audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Audit Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Auditing Tips . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 Take Steps to Protect Confidentiality of

Audit Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 Be Prepared to Promptly Respond to Every Hazard

Identified in the Audit . . . . . . . . . . . . . . . . . . . . . . . . . . 194 Document Every Significant Step Taken to Respond to

Hazards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 Do Not Censor the Auditors . . . . . . . . . . . . . . . . . . . . . . . . . 195 Attribute Appropriate Gravity to Audit Findings and

Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

3.0 OSHA’s Voluntary Self-Audit Policy . . . . . . . . . . . . . . . . . . . . 196 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196 Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196 Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 Use of Self-Audits in Agency Inspections . . . . . . . . . . . . . . . . 197 No Citation for Corrected Conditions . . . . . . . . . . . . . . . . . . 197 Protection from Use of Self-Audits to Show Willfulness . . . . . 198 Penalty Reduction for Good Faith . . . . . . . . . . . . . . . . . . . . . 198 Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198 Critique . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 “Routine” Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 Use of Audit Information to Supplement Other

Evidence Already Found . . . . . . . . . . . . . . . . . . . . . . . . . 199 Penalty Reduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199

4.0 Privileges and Protections from Disclosure of Audit Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 The Self-Audit Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 The Common Law Audit Privilege . . . . . . . . . . . . . . . . . . . . 200 General Description . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 Factors Used in Determining Whether to Apply the

Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

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Other Limitations in Application of the Audit Privilege . . . . . . . 202 Statutory Audit Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 The Attorney/Client Privilege . . . . . . . . . . . . . . . . . . . . . . . . 203 Attorney Work Product Doctrine . . . . . . . . . . . . . . . . . . . . . . 204

5.0 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205

Chapter 10 Inspections and Investigations . . . . . . . . . . . . . . . . 207

1.0 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207

2.0 Types of Inspections and Investigations . . . . . . . . . . . . . . . . . . 208 Imminent Danger Inspections . . . . . . . . . . . . . . . . . . . . . . . . 208 Accident and Fatality Investigations . . . . . . . . . . . . . . . . . . . . 208 Complaint or Referral Investigations . . . . . . . . . . . . . . . . . . . 208 Routine, Scheduled, or Programmed Inspections . . . . . . . . . . 209

3.0 OSHA’s Inspection and Investigation Rights . . . . . . . . . . . . . . 209 OSHA’s Right to Inspect . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 No Advance Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 Warrant Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 Exceptions to Warrant Requirement . . . . . . . . . . . . . . . . . . . 212 Interviews, Documents, and Subpoenas . . . . . . . . . . . . . . . . . 213 Audio and Video Recording . . . . . . . . . . . . . . . . . . . . . . . . . . 214 Monitoring Devices on Employees . . . . . . . . . . . . . . . . . . . . . 215

4.0 Employers’ Constitutional and Statutory Rights . . . . . . . . . . . 215 Challenging a Warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215 Right to Accompany Inspector . . . . . . . . . . . . . . . . . . . . . . . . 216 Employer and Employee Interview Rights . . . . . . . . . . . . . . . 217 Challenging the Conduct of the Inspection . . . . . . . . . . . . . . 217

5.0 Stages of OSHA Inspections and Investigations . . . . . . . . . . . 218 Presentation of Credentials . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 Opening Conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 Walk Around Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 Closing Conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219

Chapter 11 Understanding and Contesting OSHA Citations . . . 221

1.0 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221

2.0 Why Should an Employer Contest a Citation? . . . . . . . . . . . . 221 Abatement Costs Can Be Significant and Long Term . . . . . . 222 Uncontested Citations Can Result in “Repeated”

Violations Later . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222 Citations Can Be Used Against an Employer in

Tort Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222

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Citations Can Interfere with Business Opportunities and Damage Reputations . . . . . . . . . . . . . . . . . . . . . . . . . . . 223

3.0 Procedural Requirements for Issuance of a Citation . . . . . . . . 224 OSHA’s Time to Issue a Citation Is Limited . . . . . . . . . . . . . 224 OSHA Must Adequately Describe the Violation . . . . . . . . . . 224

4.0 The Elements of OSHA Citations: What Can Be Contested? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 The Alleged Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 “Willful” Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 “Repeated” Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 “Serious” Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 “Other-than-Serious” Violations . . . . . . . . . . . . . . . . . . . . . . . 227 “De Minimis” Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 The Penalty Amount and Characterization of Violation . . . . 228 Factors Considered by OSHA in Calculating Proposed

Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 Gravity of the Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 Size of the Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 Good Faith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 Violation History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 Multiplied Penalties for “Egregious” Violations . . . . . . . . . . . 230 The Abatement Requirements . . . . . . . . . . . . . . . . . . . . . . . . 231

5.0 Contesting OSHA Citations: From Notice of Contest to Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231 The Notice of Contest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232 Fifteen Working Day Contest Period . . . . . . . . . . . . . . . . . . . 232 Essential Contents of the Notice of Contest . . . . . . . . . . . . . . 233 Review by an Administrative Law Judge of the Review

Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 Rules of Procedure and Evidence . . . . . . . . . . . . . . . . . . . . . . 233 Pre-Hearing Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 Hearing Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234 Post-Hearing Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235 Simplified Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235 Review by the Commission . . . . . . . . . . . . . . . . . . . . . . . . . . 236 Interlocutory Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236 Appellate-Type Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236 Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237 Recovery of Attorneys’ Fees and Costs . . . . . . . . . . . . . . . . . . 238

6.0 Resolving Citations through Settlement with OSHA . . . . . . . 239 Pre-Citation Settlements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 Informal Settlements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 Formal Settlements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239

7.0 Employee Participation in Challenges to Citations . . . . . . . . . 240

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Chapter 12 Criminal Enforcement of Violations . . . . . . . . . . . . 243

1.0 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243

2.0 Federal Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244 Definition of “Employee” . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245 Willful Violations Causing Death to Employee . . . . . . . . . . . 245 False Statements and Advance Notice . . . . . . . . . . . . . . . . . . . 246

3.0 State Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247

4.0 Prosecution under Environmental Statutes . . . . . . . . . . . . . . . 248

5.0 Recent Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249

Chapter 13 Judicial Review of Enforcement Actions . . . . . . . . 251

1.0 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251

2.0 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252 Parties Who Have Standing to Bring an Appeal . . . . . . . . . . . 252 Courts That Have Jurisdiction over Appeals . . . . . . . . . . . . . . 254

3.0 Timing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254 Final Commission Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . 254 Exhaustion of Administrative Remedies . . . . . . . . . . . . . . . . . 255 Constitutional Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . 257

4.0 Scope of Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 Procedural Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 Standard of Review for Conclusions of Law . . . . . . . . . . . . . . 258 Standard of Review for Findings of Fact . . . . . . . . . . . . . . . . . 259 Precedential Effect of Judicial Decisions . . . . . . . . . . . . . . . . . 261

5.0 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261

Chapter 14 Imminent Danger Inspections . . . . . . . . . . . . . . . . 263

1.0 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263

2.0 Imminent Danger Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . 264

3.0 Nuts and Bolts of an Inspection . . . . . . . . . . . . . . . . . . . . . . . 264

4.0 The On-Site Visit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266

5.0 Employee Representatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269

6.0 Opening Conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269

7.0 The Walk Around . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270

8.0 Notices of Imminent Danger and Temporary Restraining Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271

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9.0 Closing Conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272

10.0 Citations and Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272

11.0 Abatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273

12.0 MSHA Imminent Danger Inspections . . . . . . . . . . . . . . . . . 274

13.0 Employee Rights and Labor Unions . . . . . . . . . . . . . . . . . . . 276

14.0 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277

Chapter 15 OSHA-Approved State Plans . . . . . . . . . . . . . . . . . . 279

1.0 Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279

2.0 Establishing State Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279 Developmental Phase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279 Probationary Phase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280 Rejection and Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . 281

3.0 Preemption Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281

4.0 Approved State Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286

Appendix: Occupational Safety and Health Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331

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Preface

Nothing in the workplace is more important than employee safety and health. Good safety and health conditions and practices are maintained by the dedica- tion of all employees with the help of supervisors, management, and safety pro- fessionals.

A major component of safety and health management is compliance with the regulations and standards of the Occupational Safety and Health Administration (OSHA) within the U.S. Department of Labor. This handbook provides impor- tant information regarding legal requirements and compliance responsibilities re- lated to OSHA enforcement of safety and health requirements under the Occu- pational Safety and Health Act of 1970.

All the authors of the handbook are experienced in occupational safety and health law. All are able to bring unique insights to the issues addressed. Together they provide in this handbook a comprehensive analysis of the issues that arise under federal and state OSHA programs.

The handbook begins with a review of the basic requirements of law, who is covered, who is not, how safety and health standards are developed, how affected parties may participate, and how variances may sometimes be obtained when fi- nal standards conflict with other safety considerations at particular employment locations.

The mechanism and details of enforcement are reviewed in the handbook, including those pertaining to jurisdiction, inspections, the authority of inspec- tors, citations, and monetary penalties. The implications of specific standards and the General Duty Clause established in the Occupational Safety and Health Act are analyzed. Criminal law enforcement is also addressed.

Rights of employers and employees are detailed and explained. These include rights to contest enforcement actions by the enforcing agency and protection of employees against unlawful discrimination related to protected safety activity. Employee rights to know and employer recordkeeping and reporting obligations are also explained.

All of these subjects are of critical importance to employers and employees. It is hoped that the users of this handbook will find themselves greatly aided in ensuring good safety and health compliance and as well as fair and even-handed enforcement by authorities.

Margaret S. Lopez Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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Melissa A. Bailey

Melissa Bailey has an extensive background in govern- ment relations and labor and employment law, including substantial litigation experience in occupational safety and health matters. Ms. Bailey provides counseling and litigates occupational safety and health cases before federal agencies and courts, represents clients in government in- spections and investigations, and performs audits and compliance counseling. Ms. Bailey represents employers in a wide range of industries, including chemical, manu- facturing, mining, construction, automotive, health and hospitality services. Ms. Bailey advises employers and trade associations about strategies to minimize liability during government inspections, and she assists employers in developing effective compliance plans.

About the Authors

E-mail melissa.bailey@ ogletreedeakins.com

Web site www.ogletreedeakins .com

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E-mail econn@mwe.com

Web site www.mwe.com

Frank D. Davis

Frank Davis represents management exclusively in the area of labor and employment law throughout the United States. His extensive experience includes the handling of representation proceedings before the National Labor Re- lations Board, labor arbitrations, unfair labor practice charges, union campaigns, employment contracts, dis- crimination, harassment, retaliation, wage and hour com- pliance, leave issues, and workplace safety. Mr. Davis also has obtained summary judgments or dismissals on behalf of clients in dozens of cases filed in state and federal courts.

E-mail frank.davis@ ogletreedeakins.com

Web site www.ogletreedeakins .com

Eric J. Conn

Eric J. Conn is a partner in the Washington, D.C., office of McDermott Will & Emery LLP. As a member of the OSHA, MSHA & Catastrophe Response Practice Group, Mr. Conn focuses his practice on workplace safety and health law and has extensive experience defending em- ployers after catastrophic industrial and construction workplace accidents, such as refinery explosions, con- struction collapses, chemical releases, and airline acci- dents. Mr. Conn also represents clients during inspections and investigations by various state and federal agencies, including OSHA, the U.S. Chemical Safety and Hazard Investigation Board (CSB), the National Transportation Safety Board (NTSB), Mine Safety and Health Adminis- tration (MSHA), and the Environmental Protection Agency (EPA). Mr. Conn is a contributing editor to Oc- cupational Hazards Magazine and has published articles in the field of OSHA law. Mr. Conn earned his J.D. from the University of Virginia Law School in 2000.

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About the Authors ❖ xxiii

William K. Doran

William Doran’s practice is concentrated in safety and health law, labor law, employment law, and litigation. Mr. Doran represents and advises companies with respect to issues arising under federal and state safety and health statutes. Mr. Doran represents companies in accident in- vestigations, special investigations, audits, and discrimina- tion investigations conducted by OSHA, MSHA, and state agencies. He represents companies in litigation be- fore the Occupational Safety and Health Review Com- mission, the Federal Mine Safety and Health Review Commission and the federal courts. He also represents companies and trade associations on local and national is- sues within the purview of federal agency administrators.

E-mail william.doran@ ogletreedeakins.com

Web site www.ogletreedeakins .com

Katie A. Duggin

Katie Duggin is an associate in Ogletree, Deakins’ Wash- ington, D.C., office, where her practice is concentrated in workplace safety and employment law. Ms. Duggin re- ceived her J.D. in 2005 from the Georgetown University Law Center. Throughout law school, she worked in the human resources field, which led her to labor and em- ployment Law. Ms. Duggin also served as an instructor in Georgetown’s Street Law Community clinical program.

E-mail katie.duggin@ ogletreedeakins.com

Web site www.ogletreedeakins .com

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John B. Flood

John B. Flood is an experienced litigator who practices in the areas of safety and health law and employment litiga- tion. Mr. Flood represents clients in litigation before the Mine Safety and Health Administration, the Occupa- tional Safety and Health Administration, as well as in fed- eral and state courts at the trial and appellate levels. He represents clients in a wide variety of industries, including defense contracting, mining, real estate, and retail sales.

Mr. Flood obtained a J.D. in 1993 from Oklahoma City University School of Law, and an LL.M. in 2002 from Georgetown University in labor and employment law.

xxiv ❖ Occupational Safety and Health Law Handbook

E-mail John.Flood@odnss.com

Web site www.ogletreedeakins .com

Lauren Handel

Lauren Handel is an associate in McDermott Will & Emery LLP’s New York office. Ms. Handel represents clients primarily in environmental and toxic tort litiga- tion. She also counsels clients on compliance with federal, state, and local environmental and workplace safety regu- lations and represents clients in all aspects of environ- mental agency and OSHA enforcement actions. Ms. Handel earned her J.D. from Georgetown University Law Center in 2002.

E-mail lhandel@mwe.com

Web site www.mwe.com

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Michael T. Heenan

Michael T. Heenan’s law practice focuses on governmen- tal investigations, inspections, audits, and related litiga- tion, particularly with respect to mine safety and occupa- tional safety and health. He counsels companies on preventing problems in the workplace. He represents management in federal and state accident investigations and special investigations into possible violations of fed- eral or state civil and criminal laws. He also represents companies in litigation related to governmental enforce- ment actions.

About the Authors ❖ xxv

E-mail michael.heenan@ ogletreedeakins.com

Web site www.ogletreedeakins .com

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Margaret S. Lopez

Margaret S. Lopez is a Shareholder in the Washington, D.C., office of Ogletree, Deakins, Nash, Smoak and Stewart, P.C. Her practice is concentrated in occupational safety and health, employment law, and nonprofit associ- ation law. Ms. Lopez regularly advises companies on fed- eral safety and health regulatory matters, including leg- islative, regulatory, and compliance issues arising under the Occupational Safety and Health Act and the Federal Mine Safety and Health Act. Ms. Lopez represents com- panies in litigation challenging enforcement action taken by OSHA and MSHA and assists companies in agency in- vestigations. Ms. Lopez also represents employers in cases in state and federal district and appellate courts on a wide variety of workplace safety and employment matters. Ms. Lopez is a frequent speaker and writer on occupational safety and health topics. Among her publications are “Ap- plication of the Audit Privilege to Occupational Safety and Health Audits: Lessons Learned from Environmental Audits” in the Journal of Natural Resources and Environ- mental Law (12 J. Nat. Resources & Envtl. L. 211 [1996–1997]), “Self-Audits” in Occupational Safety and Health Law Handbook 197 (Government Institutes ed., 2001), and MSHA’s Excessive History Policy: Avoiding the Civil Penalty Quagmire (2003).

xxvi ❖ Occupational Safety and Health Law Handbook

E-mail margo.lopez@ ogletreedeakins.com

Web site www.ogletreedeakins .com

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Marshall Lee Miller

Marshall Miller is a partner in the Washington, D.C., of- fice of the law firm Baise & Miller, where he specializes in the areas of environmental law, occupational health and safety, and international transactions. Mr. Miller was pre- viously special assistant to the first administrator of the U.S. Environmental Protection Agency, chief EPA judi- cial officer, associate deputy attorney general in the U.S. Department of Justice, and deputy administrator and act- ing head of the Occupational Safety and Health Adminis- tration. He was educated at Harvard, Oxford, Heidelberg, and Yale.

About the Authors ❖ xxvii

E-mail miller@baisemiller.com

John B. O’Loughlin, Jr.

John B. O’Loughlin, Jr., is counsel with the Washington, D.C., office of Weil, Gotshal & Manges LLP. Mr. O’Loughlin’s practice covers a wide range of environmen- tal, safety, and health matters. He advises clients on envi- ronmental, safety, and health regulatory requirements and represents corporations in litigation and in administrative proceedings before regulatory agencies such as the Food and Drug Administration (FDA), the Consumer Product Safety Commission (CPSC), the EPA, the National High- way Traffic Safety Administration (NHTSA), OSHA, and the Federal Trade Commission (FTC). Mr. O’Loughlin is admitted to practice in Maryland and the District of Co- lumbia. He was educated at Towson University and Rich- mond University in London. He holds an M.A. from Boston University’s international relations program in Brussels and a J.D. from the University of Maryland School of Law.

E-mail john.oloughlin@weil.com

Web site www.weil.com

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Arthur G. Sapper

Arthur G. Sapper is a partner in the OSHA Practice Group of McDermott, Will & Emery in Washington, D.C. Mr. Sapper regularly represents employers and ma- jor trade associations in OSHA cases before the federal ap- pellate courts and the Occupational Safety and Health Review Commission and has participated in ground- breaking cases in the field. For nine years, he was an ad- junct professor at Georgetown University Law Center, where he taught a graduate course in OSHA law. Mr. Sapper was a member of the Committee on Model Agency Procedural Rules of the Administrative Confer- ence of the United States. Previously, he was the deputy general counsel of the Occupational Safety and Health Review Commission, and the special counsel to the Fed- eral Mine Safety and Health Review Commission. Mr. Sapper has several times testified before Congress on oc- cupational safety and health issues, has published numer- ous articles in the field of OSHA law, and is a contribut- ing editor of Occupational Hazards magazine. Mr. Sapper was awarded a J.D. from Georgetown University Law Center.

xxviii ❖ Occupational Safety and Health Law Handbook

E-mail asapper@mwe.com

Web site www.mwe.com

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Rachel Schaffer

Rachel Schaffer’s practice has focused on representing em- ployers in all aspects of OSHA and MSHA civil and crim- inal enforcement actions, including federal and state OSHA and MSHA inspections and citation contests be- fore administrative law judges, the Occupational Safety and Health Review Commission, Mine Safety and Health Review Commission, state agencies, and rulemakings re- lated to proposed OSHA standards. Ms. Schaffer has as- sisted clients in evaluating their OSHA and MSHA com- pliance status and has counseled employers in developing and implementing safety and health policies and strategic plans. In recent years, Ms. Schaffer has devoted a signifi- cant portion of her practice to OSHA construction litiga- tion matters across the United States. She has represented general contractors, subcontractors, owners, and engi- neers on a whole host of OSHA issues. Ms. Schaffer also has been a frequent speaker on OSHA construction is- sues. Ms. Schaffer is admitted to practice in the District of Columbia and Florida. She also is admitted to practice be- fore the United States Court of Appeals for the District of Columbia Circuit, United States District Court for the District of Columbia, United States Court for the Middle District of Florida, United States District Court for the District of Maryland, and United States District Court for the District of Colorado.

About the Authors ❖ xxix

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Francina M. Segbefia

Francina M. Segbefia represents and counsels manage- ment in labor relations, employment matters, mine safety, and occupational safety and health. Prior to joining Ogle- tree Deakins, Ms. Segbefia represented design profession- als in construction-related litigation, corporate transac- tions, and employment matters. Ms. Segbefia has experience in reviewing and negotiating complex com- mercial contracts, as well as in litigation and alternative dispute resolution. She was also a law clerk and associate with the law firm of Fitzpatrick & Associates, where she represented and counseled both plaintiff and manage- ment clients in employment-related matters.

xxx ❖ Occupational Safety and Health Law Handbook

E-mail francina.segbefia@ ogletreedeakins.com

Web site www.ogletreedeakins .com

Kenneth B. Siepman

Mr. Siepman has represented and advised public and pri- vate employers in virtually all areas of labor and employ- ment law for fifteen years. Mr. Siepman regularly serves as lead counsel for employers in arbitrations, federal and state trial and appellate courts, and administrative agen- cies such as the Equal Employment Opportunity Com- mission, the National Labor Relations Board, the Occu- pational Safety and Health Administration, and the Indiana and United States Departments of Labor. He has considerable experience representing public employers in defense of the first and fourteenth amendments and other constitutional and civil rights cases.

E-mail Kenneth.Siepman@ ogletreedeakins.com

Web site www.ogletreedeakins .com

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Chapter 1

Occupational Safety and Health Act Marshall Lee Miller, Esq. Baise & Miller, P.C. Washington, D.C.

1.0 Overview

The U.S. Occupational Safety and Health Administration (OSHA) was once called the most unpopular agency in the federal government. It was criticized for its confusing regulations, chronic mismanagement, and picayune enforcement. With somewhat less accuracy, business groups likened it to an American gestapo, while labor unions denounced it as ineffective, unresponsive, and bureaucratic.

Most damning of all, OSHA was often simply ignored. It no longer is. Al- though OSHA still has its weaknesses and many of its standards are sadly out- moded, its penalties have sharply increased in severity. This has caught the attention of labor and management alike. Moreover, the agency has gradually improved its general reputation. A few years ago, the prestigious Maxwell School of Government at Syracuse University graded a number of federal agencies and gave OSHA a B mi- nus, the same grade as the Environmental Protection Agency (EPA). A decade or two ago, the grade would likely have been D plus or C minus, so this is a step up.1

It is not often recognized, however, that OSHA is also perhaps the most im- portant environmental health agency in the government. Even EPA, with far greater resources and public attention, deals with a smaller range of much less hazardous exposures than does OSHA. After all, individuals are more likely to be

1 “Report Card In on Government Agencies,” Associated Press (AP), 2 February 1999. Nevertheless, in an- other study, OSHA tied with the Internal Revenue Service for the lowest ranking among federal agencies in terms of customer approval. University of Michigan Business School, “American Customer Satisfaction Re- port,” 15 December 1999. Not everything has improved. A detailed critique of OSHA prepared by an out- going senior official a quarter-century ago could regrettably be reissued today with relatively few changes. See “Report on OSHA: Regulatory and Administrative Efforts to Protect Industrial Health,” January 1977, 108 pp., by the author of this chapter.

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exposed to high concentrations of dangerous chemicals in their workplaces than in their backyards.

1.1 Comparison of OSHA and EPA

There are several distinct differences between OSHA and EPA, besides the obvi- ous occupational jurisdiction.

First, OSHA has major responsibility over safety in the workplace as well as health. Second, OSHA is essentially an enforcement organization, with a major- ity of its employees as inspectors, performing tens of thousands of inspections a year. This “highway patrol” function, inspecting and penalizing thousands of businesses large and small, has been the major reason for OSHA’s traditional un- popularity. At EPA, on the other hand, inspections and enforcement are a rela- tively smaller part of the operation.

Third, whereas EPA is an independent regulatory agency, albeit headed by presidential appointees, OSHA is a division of the Department of Labor. This or- ganizational arrangement not only provides less prestige and less independence for OSHA, but also has posed an internal conflict of whether OSHA should be primarily a health (and safety) or a labor-oriented agency. Nevertheless, OSHA and EPA regulate different aspects of so many health issues—asbestos, vinyl chlo- ride, carcinogens, hazard labeling, and others—that it is reasonable to regard them as overlapping environmental organizations.2

1.2 OSHA, the Organization

OSHA has a staff of 2,200 throughout the country in ten regional offices and scores of area offices. Almost exactly half of the personnel are safety and health inspectors. Around 600 workers are located at OSHA headquarters in Washing- ton, D.C., near Capitol Hill. The budget is $336 million.

The organization is administered by the Assistant Secretary of Labor for Oc- cupational Safety and Health since February 2006, Edwin G. Foulke Jr., a South Carolina labor lawyer who was also chairman of the quasi-judicial Occupational Safety and Health Review Commission (OSHRC) in the 1990s. His predecessor who resigned in December 2004, John L. Henshaw, was an official in the North Carolina Department of Labor and the department’s chief lobbyist on occupa- tional safety and health matters with the state legislature.

2 ❖ Occupational Safety and Health Law Handbook

2 To prevent this overlap from causing jurisdictional confusion, the two agencies developed a Memorandum of Understanding (MOU) in 1990 to delineate and coordinate their respective activities. OSHA-EPA MOU, 23 November 1990.

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The head of OSHA has traditionally been aided by one to three deputy as- sistant secretaries, as well as by a number of other senior personnel who head of- fices such as health standards, safety standards, enforcement, policy planning, and federal programs.3

This chapter emphasizes the health aspects of OSHA, because most press at- tention and the agency’s own public emphasis since the mid-1970s has been on toxic hazards. Nevertheless, OSHA is predominantly an occupational safety or- ganization. The two parts of the organization are quite distinct: There are sepa- rate inspectors and standards offices for each, and the two groups are different in terms of background, education, and age. There are also far more safety inspec- tors than health inspectors.

In the most recent fiscal year, the agency conducted 34,000 inspections and proposed penalties of around $90 million. Over half of the inspections were in the construction area, and a quarter were in manufacturing. The number of in- spections is only about half of what it was in some earlier years, but this fact alone is not a particularly reliable indicator of agency effectiveness. State OSHA in- spections average a little fewer than 60,000 a year, but with only $50 million in proposed penalties.

2.0 Legislative Framework

OSHA was created in December 1970—the same month as EPA—with the enact- ment of the Occupational Safety and Health Act (OSH Act)4 and officially began operation in April 1971. Compared with other environmental acts, the OSH Act is very simple and well drafted. This does not mean that one necessarily agrees with the provisions of every section, but it is clearly and concisely written so that details can be worked out in implementing regulations. And unlike the other environmen- tal laws that have been amended several times, becoming more tangled each time, the OSH Act has scarcely been amended or modified since its original passage.5

2.1 Purpose of the Act

The Act sets an admirable but impossible goal: to assure that “no employee will suffer material impairment of health or functional capacity” from a lifetime of

Occupational Safety and Health Act ❖ 3

3 In the fifteen-month interval between Henshaw and Foulke, a Deputy Assistant Secretary, Texas lawyer Jonathan Snare, served as acting Assistant Secretary.

4 Occupational Safety and Health Act of 1970, PL 91-596, 84 Stat. 1590. 5 This lack of change could obviously also be considered a negative factor, but a comparison with some of

EPA’s ponderously detailed legislation shows the benefits of keeping the basic statute simple. OSHA annual appropriations legislation, however, has been modified several times to restrict OSHA authority over small businesses, farming, hunting, and other subjects.

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occupational exposure.6 It does not require—or even seem to allow—a balanc- ing test or a risk-benefit determination.7 The supplementary phrase in the OSH Act, “to the extent feasible,” was not meant to alter this. This absolutist position, comparable only to one provision in the Clean Air Act,8 reflects Congress’s dis- pleasure at previous overly-permissive state standards, which traditionally seemed always to be resolved against workers’ health. In fact, the concession to feasibil- ity was added almost as an afterthought.

Business groups did obtain two provisions in the law as their price for sup- port. First, industry insisted that states should be encouraged to assume primary responsibility for implementation, in order to minimize the role of the federal OSHA. Second, because of their distrust for the allegedly pro-union bias of the Department of Labor, responsibility for first-level adjudication of violations would be vested in an independent Occupational Health and Safety Review Commission (OHSRC) with a three-member panel of judges named by the pres- ident and approved by the Senate.

Congress did reject an industry effort to separate the standard-setting au- thority from the enforcement powers of the new organization, but it gave a spe- cial role to the National Institute for Occupational Safety and Health (NIOSH), located in another government department, the Department of Health and Hu- man Services, in the standard-setting process.

Thus, the three main roles of OSHA are

1. setting of safety and health standards,

2. their enforcement through federal and state inspectors, and

3. employer and employee education and consultation.

2.2 Coverage of the Act

In general, coverage of the Act extends to all employers and their employees in the fifty states and all territories under federal government jurisdiction.9 An em- ployer is defined as any “person engaged in a business affecting commerce who has employees but significantly does not include the United States or any State or po- litical subdivision of a State.”10 Coverage of the Act was clarified by regulations

4 ❖ Occupational Safety and Health Law Handbook

6 OSH Act § 6(b)(5); emphasis added. 7 This issue will be discussed in detail in section 4.6 of this chapter. 8 Clean Air Act § 112, 42 U.S.C. § 1857, the National Emission Standards for Hazardous Air Pollutants

(NESHAP). 9 OSH Act § 4(a)–4(b)(2). 10 OSH Act § 3(5). Congress’s annual appropriations language has excluded several “peripheral” categories of

employers in the past few years.

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published in the Federal Register in January 1972.11 These regulations interpret coverage as follows:

1. The term employer excludes the United States and states and political sub- divisions.

2. Any employer employing one or more employees is under its jurisdiction, including professionals, such as physicians and lawyers; agricultural em- ployers; and nonprofit and charitable organizations.

3. Self-employed persons are not covered.

4. Family members operating a farm are not regarded as employees.

5. To the extent that religious groups employ workers for secular purposes, they are included in the coverage.

6. Domestic household employment activities for private residences are not subject to the requirements of the act.

7. Workplaces already protected by other federal agencies under other fed- eral statutes (discussed later) are also excluded.

In total, OSHA directly or indirectly covers more than 100 million workers in six million workplaces.

2.3 Exemptions from the Act

The OSH Act and regulations exempt a number of different categories of em- ployees. The most important exemption is for workplaces employing 10 or fewer workers. What often is not recognized is that this exemption is only partial; these smaller establishments are still subject to accident and worker complaint investi- gations and the hazard communication requirements (discussed below).

Federal and state employees are also exempted from direct coverage by OSHA. As discussed below, however, the former are subject to OSHA rules under OSH Act Section 19 and several presidential executive orders, and most states with their own state OSHA plans also cover their state and local government workers.

Workers are also exempted if they are covered under other federal agencies, such as railroad workers under the Federal Railroad Administration or maritime

Occupational Safety and Health Act ❖ 5

11 37 FR 929, 21 January 1972, codified at 29 Code of Federal Regulations (C.F.R.) § 1975.

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workers subject to Coast Guard regulations. This exemption has sometimes gen- erated intergovernmental friction where the other agency has general safety and health regulations but not the full coverage of OSHA regulations. In other words, is the exemption absolute or only proportional?

Under OSH Act Section 9, OSHA is supposed to defer to the other agency if it can better protect the workers and, similarly, the other agency is expected to recede when the situation is reversed. Of course, considerations of turf and poli- tics are often paramount.12

2.4 Telecommuting and Home Workplaces

Workplaces are workplaces, even if they are in a private home. That was at least the principle OSHA relied on in 1999 to attempt to exert its authority over the growing number of white collar workers who use their modems rather than their motor cars to commute to work. This is a good example of the type of political furor OSHA can create, often unintentionally.

Of course, OSHA had always claimed (if rarely exercised) jurisdiction over “sweat shops” and other industries, even if operated from someone’s home. Therefore, when OSHA was asked for a simple interpretation about its coverage of home office workers, it applied the same logic. In an interpretative ruling from the Office of Compliance Programs in November 1999, the agency stated that OSHA would hold employers responsible for injuries to employees at home.13

This triggered a political explosion.

The National Association of Manufacturers declared, “We see this as the long arm of OSHA coming into people’s homes.”14 The chairman of a powerful con- gressional committee warned that the policy would put “home workers in the po- sition of having to comply with thousands of pages of OSHA regulations.”15

What OSHA had failed to realize was these new workers were not someone’s employees needing protection from exploitive bosses. They were their own

6 ❖ Occupational Safety and Health Law Handbook

12 EPA learned this lesson back in 1984 when Deputy Administrator James Barnes quite properly deferred to OSHA on certain asbestos workplace matters. Congressional critics, who believed OSHA would not treat the matter seriously or competently, raised such furor that EPA retained jurisdiction. Even earlier, in 1973, OSHA and EPA had an acrimonious dispute over which agency should have primary jurisdiction over pro- tecting farm workers from pesticides. EPA won.

13 Richard Fairfax, director of the Office of Compliance Programs, opinion letter to CSC Credit Services of Houston, Texas, 15 November 1999. Lest one think this was merely a hasty OSHA response, note that the company’s request for an opinion was submitted in August 1997, 27 months before.

14 Jenny Krese, director of NAM’s employment policy, Bureau of National Affairs (BNA), OSHA Reporter, 6 January 2000, p. 5.

15 Rep. Pete Hoekstra (R-Mich.), chairman of the House Oversight and Investigations Subcommittee of the House Education and Workforce Committee, id., 13 January 2000, p. 22.

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bosses, or they certainly saw themselves as such. And they saw OSHA interven- tion not as protective but intrusive.

On January 5, 2000, the Secretary of Labor, Alexis Herman, announced the cancellation of the short-lived OSHA policy.

3.0 Scope of OSHA Standards

To give the reader an idea of the areas covered by the standards, the following is a subpart listing from the Code of Federal Regulations, Part 1910, Occupational Safety and Health Standards. Note that the listings are mostly safety standards. The health standards are all contained in Subpart Z, except for Subparts A, C, G, K, and R, which cover both categories.

3.1 Areas Covered by the OSHA Standards

• Subpart A: General (purpose and scope, definitions, applicability of stan- dards, etc.)

• Subpart B: Adoption and Extension of Established Federal Standards (con- struction work, ship repairing, long shoring, etc.)

• Subpart C: General Safety and Health Provisions (preservation of records)

• Subpart D: Walking-Working Surfaces (guarding floor and wall openings, portable ladders, requirements for scaffolding, etc.)

• Subpart E: Means of Egress (definitions, specific means by occupancy, sources of standards, etc.)

• Subpart F: Powered Platforms, Manlifts, and Vehicle-Mounted Work Plat- forms (elevating and rotating work platforms, standards, organizations, etc.)

• Subpart G: Occupational Health and Environmental Control (ventilation, noise exposure, radiation, etc.)

• Subpart H: Hazardous Materials (compressed gases, flammables, storage of petroleum gases, effective dates, etc.)

• Subpart I: Personal Protective Equipment (eye/face, respiratory, electrical devices, etc.)

Occupational Safety and Health Act ❖ 7

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• Subpart J: General Environmental Controls (sanitation, labor camps, safety color code for hazards, etc.)

• Subpart K: Medical and First Aid (medical services, sources of standards)

• Subpart L: Fire Protection (fire suppression equipment, hose and sprinkler systems, fire brigades, etc.)

• Subpart M: Compressed Gas and Compressed Air Equipment (inspection of gas cylinders, safety relief devices, etc.)

• Subpart N: Materials Handling/Storage (powered industrial trucks, cranes, helicopters, etc.)

• Subpart O: Machinery and Machine Guarding (requirements for all ma- chines, woodworking machinery, wheels, mills, etc.)

• Subpart P: Hand and Portable Powered Tools and Other Hand-Held Equipment (guarding of portable power tools)

• Subpart Q: Welding, Cutting, and Brazing (definitions, sources of stan- dards, etc.)

• Subpart R: Special Industries (pulp, paper and paperboard mills, textiles, laundry machinery, telecommunications, etc.)

• Subpart S: Electrical (application, National Electrical Code)

• Subpart T: Commercial Diving Operations (qualification of team, pre- and postdive procedures, equipment, etc.)

• Subpart U–Y: [Reserved]

• Subpart Z: Toxic and Hazardous Substances (air contaminants, asbestos, vinyl chloride, lead, benzene, etc.)

3.2 Overview of Standards

When OSHA was created, Congress realized that the new agency would require years to promulgate a comprehensive corps of health and safety standards. The OSH Act therefore provided that for a two-year period ending in April 1972, the agency could adopt as its own the standards of respected professional and

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trade groups. These are the consensus standards issued under Section 6(a) of the statute.16 Nobody could have imagined that three decades later, these imperfect and outdated standards would still form the overwhelming majority of OSHA regulations.

3.3 Overview of Health Standards

Health issues, notably environmental contaminants in the workplace, have in- creasingly become a national concern over the past few years. Health hazards are much more complex, more difficult to define, and—because of the delay in de- tection—perhaps more dangerous to a larger number of employees. Unlike safety hazards, the effects of health hazards may be slow, cumulative, irreversible, and complicated by nonoccupational factors.

If a machine is unequipped with safety devices and maims a worker, the dan- ger is clearly and easily identified and the solution usually obvious. However, if workers are exposed for several years to a chemical that is later found to be car- cinogenic, there may be little help for those exposed.

In the nation’s workplaces, there are tens of thousands of toxic chemicals, many of which are significant enough to warrant regulation. Yet OSHA only has a list of fewer than 500 substances, and these are mostly simple threshold limits adopted under Section 6(a) from the recommended lists of private industrial hy- giene organizations back in the 1960s and early 1970s. This list is being updated now but with glacial slowness.

The promulgation of health standards involves many complex concepts. To be complete, each standard needs medical surveillance requirements, recordkeeping, monitoring, and multiple physical reviews, just to mention a few. At the present rate, promulgation of standards on every existing toxic substance could take centuries.

Ironically, an attempt to update the health standards for hundreds of sub- stances in one regulatory action by borrowing newer figures from respected health professional organizations was opposed by the labor unions (and industry) and struck down by an appellate court in 1992.17

3.4 Overview of Safety Standards

Safety hazards are those aspects of the work environment that, in general, cause harm of an immediate and sometimes violent nature, such as burns, electrical

Occupational Safety and Health Act ❖ 9

16 These consensus standards are discussed in sections 3.4 and 4.1 of this chapter. 17 The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) v. OSHA, 965 F.2d

962 (11th Cir. 1992).

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shock, cuts, broken bones, loss of limbs or eyesight, and even death. The distinc- tion from health hazards is usually obvious; mechanical and electrical are consid- ered safety problems, while chemicals are considered health problems. Noise is difficult to categorize; it is classified as a health problem.

The Section 6(a) adoption of national consensus and other federal agency stan- dards created chaos in the safety area. It was one thing for companies to follow in- dustry or association guidelines that, in many cases, had not been modified in years; it was another thing for those guidelines actually to be codified and enforced as law. In the two years that the Act provided for OSHA to produce standards derived from these existing rules, the agency should have examined these closely, simplified them, deleted the ridiculous and unnecessary ones, and promulgated final regula- tions that actually identified and eliminated hazards to workers. But in the com- motion of organizing an agency from scratch, it did not happen that way.

Nor did affected industry groups register their objections until later. During the entire two-year comment period, not a single company or association filed an objection with OSHA.

Almost all of the so-called Mickey Mouse standards were safety regulations, such as the requirements that fire extinguishers be attached to the wall exactly so many inches above the floor. Undertrained OSHA inspectors often failed to recognize ma- jor hazards while citing industries for minor violations “which were highly visible, but not necessarily related to serious hazards to workers’ safety and health.”18

Section 6(g) of the OSH Act directs OSHA to establish priorities based on the needs of specific “industries, trades, crafts, occupations, businesses, work- places, or work environments.” The Senate report accompanying the OSH Act stated that the agency’s emphasis initially should be put on industries where the need was determined to be most compelling.19 OSHA’s early attempts to target inspections, however, were sporadic and, for the most part, unsuccessful. The sit- uation has improved somewhat in recent years, for both health and safety, in part because of the recent requirement that some priority scheme be used that could justify search warrants. But, as we shall see, that has brought its own problems.

4.0 Standard Setting

Setting standards can be a complex and protracted process. There are thousands of chemical substances, electrical problems, fire hazards, and many other danger-

10 ❖ Occupational Safety and Health Law Handbook

18 Statement of Basil Whiting, Deputy Assistant Secretary of Labor for OSHA, before the Committee on La- bor and Human Resources, U.S. Senate, 21 March 1980, pp. 5–6.

19 For the legislative history of the Act, see especially the Conference Report 91-1765 of 16 December 1970, as well as H.R. 91-1291 and S.R. 91-1282.

20 See Marshall v. Barlow’s Inc., 436 U.S. 307 (1978), which is discussed later in this chapter.

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ous situations prevalent in the workplace for which standards needed to be de- veloped.

To meet the objectives defined in the Act, three different standard-setting procedures were established:

1. Consensus Standards, under Section 6(a)

2. Permanent Standards, under Section 6(b)

3. Emergency Temporary Standards, under Section 6(c)

4.1 Consensus Standards: Section 6(a)

Congress realized that OSHA would need standards to enforce while it was de- veloping its own. Section 6(a) allowed the agency, for a two-year period that ended on 25 April 1973, to adopt standards developed by other federal agencies or to adopt consensus standards of various industry or private associations.21 This resulted in a list of around 420 common toxic chemicals with maximum permit- ted air concentrations specified in parts per million (ppm) or in milligrams per cubic meters (mg/M3).

There are several problems inherent in these standards. First, these threshold values are the only elements in the standard. There are no required warning la- bels, monitoring, or medical recordkeeping, and they do not generally distinguish between the quite different health effects in eight-hour, 15-minute, peak, annual average, and other periods of exposure.

Second, being thresholds, they are based on the implicit assumption that there are universal no-effect levels, below which a worker is safe. For carcinogens, this assumption is quite controversial.

Third, most of the standards were originally established not on the basis of firm scientific evidence but, as the name implies, from existing guidelines and lim- its of various industry, association, and governmental groups. Before OSHA’s cre- ation, they were intended to be general, nonbinding guidelines, and had been in circulation for a number of years with no urgency to keep them current. Conse- quently, neither industry nor labor bothered to comment when OSHA first pro- posed the consensus standards. Many of these “interim” standards were out of date by the time they were adopted by OSHA, and they are now frozen in time until OSHA goes through the full Section 6(b) administrative rulemaking process.

Fourth, OSHA consensus standards often involve “incorporation by refer- ence,” especially in the safety area. In some cases, these pre-1972 publications

Occupational Safety and Health Act ❖ 11

21 39 FR 23502, 27 June 1974.

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were not standards or even formal association guidelines but mere private associ- ation pamphlets that are no longer in print and not easily obtainable. For exam- ple, the general regulation on compressed gases merely states that the cylinders should be in safe condition and maintained “in accordance with Compressed Gas Association pamphlet P-1-1965” and several similar documents.22

Fifth, not all of these “toxics” are on the list because they really pose a health hazard. Although that has been the unquestioned assumption of certain later rulemakings, such as the requirement for Material Safety Data Sheets, some chemicals, such as carbon black, were listed because of “good housekeeping” practices—a facility with even a small amount of this intrusive black substance will look filthy—and not because it was hazardous at the levels set.

Nevertheless, Congress was undoubtedly correct in requiring the compila- tion of such a list. Otherwise, there would have been no OSHA health standards at the beginning. There are virtually no others even now.

4.2 Standards Completion and Deletion Processes

The agency has attempted to deal with one of the shortcomings of the consensus standards by what is called the Standards Completion Process. Over a number of years, OSHA has taken some threshold standards and added various medical, monitoring, and other requirements.23 At least a broader range of protection is offered to exposed workers.

The agency has also sought to reduce the number of safety standards. This is done by eliminating the so-called “Mickey Mouse” standards that accomplish lit- tle but impose voluminous requirements. More often, the simplification has come by removing redundant sections and cross-references. This eliminates pages but not a lot more.

Nevertheless, OSHA is proud of its compliance with the presidential directive that federal agencies review and remove duplicative or repetitive regulations.24

4.3 Permanent Standards: Section 6(b)

Permanent standards must now be developed pursuant to Section 6(b). This is the familiar standard-setting and rule-making process followed by most other federal agencies under the Administrative Procedure Act.25

12 ❖ Occupational Safety and Health Law Handbook

22 29 C.F.R. § 1910.101. 23 Since the 6(a) process ended in April 1972, the standards promulgated thereunder cannot be modified or

revised without going through the notice and comment administrative procedures under Section 6(b). 24 See, for example, the OSHA press release of 19 June 1998: “OSHA Eliminates Over 1,000 Pages of Regu-

lations to Save Employers Money, Reduce Paperwork, and Maintain Protection.” 25 5 U.S.C. § 553 et seq.

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Permanent standards may be initiated by a well-publicized tragedy, court action, new scientific studies, or the receipt of a criteria document from NIOSH, an organization described later in this chapter. The criteria document is a compilation of all the scientific reports on a particular chemical, including epidemiological and animal studies, along with a recommendation to OSHA for a standard. The recommendation, based supposedly only on scientific health considerations, includes suggested exposure limits (eight-hour average, peaks, etc.) and appropriate medical monitoring, labeling, and other proscrip- tions.

Congress assumed that NIOSH would be the primary standard-setting arm of OSHA, although the two are in different government departments— Health and Human Services (HHS) and Labor, respectively. According to this model, OSHA would presumably take the scientific recommendations from NIOSH, factor in engineering and technical feasibility, and then promulgate as similar a standard as possible. However, the system has never worked this way. Instead, OSHA’s own standards office has generally regarded NIOSH’s contribution as just one step in the process—and not one entitled to a great deal of deference.26

Following receipt of the criteria document or some other initiating action, OSHA will study the evidence and then possibly publish a proposed standard. Most candidate standards never get this far: The hundreds of NIOSH docu- ments, labor union petitions, and other serious recommendations have resulted in only a few new health standards since 1970.27

The proposed standard is then subjected to public comment for (typically) a 90-day period, often extended, after which the reactions are analyzed and in- formal public hearings are scheduled. In a few controversial instances, there may be more than one series of hearings and comments. Then come the post- hearing comments, which are perhaps the most important presentations by the parties. After considerable further study, a final standard is eventually promul- gated. The entire process might theoretically be accomplished in under a year, but in practice it takes a minimum of several years or, as with asbestos, even decades.

Occupational Safety and Health Act ❖ 13

26 NIOSH criteria documents vary considerably in quality, depending in part on to whom they were subcon- tracted, but another problem is that too often they are insufficiently discriminating in evaluating question- able studies. That is, one scientific study is regarded as good as any other study, without regard to the qual- ity of the data or the validity of the protocols. Of course, another factor in OSHA’s attitude just might be the “not invented here” syndrome. This is discussed in detail in section 14 of this chapter.

27 This meager number of chemicals does not reflect OSHA’s scientific judgment that the other candidates are unworthy or that the agency has sharply different priorities, although these may be partial factors. More im- portant reasons are poor leadership, technical inexperience, and a bit of politics.

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The following is a list of some of the final health standards that OSHA has promulgated to date:

1. Asbestos

2. Fourteen carcinogens

—4-Nitrobiphenyl —benzidine

—alpha-nephthylamine —ethyleneimine

—methyl chloromethyl ether —beta-propiolactone

—3,3’-dichlorolenzidine —2-acetylaminofluorene

—bis-chloromethyl ether —4-dimethylaminozaobenzene

—beta-naphthylamine —N-nitrosodimethylamine

—4-aminodiphenyl —(MOCA stayed by court action)

3. Vinyl chloride

4. Inorganic arsenic

5. Lead

6. Coke-oven emissions

7. Cotton dust

8. 1,2-dibromo-3-chloropropane (DBCP)

9. Acrylonitrile

10. Ethylene oxide

11. Benzene

12. Field sanitation

And, most recently, in February 2006,

13. Hexavalent chromium

14 ❖ Occupational Safety and Health Law Handbook

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The list is obviously incredibly short for three and a half decades of OSHA stan- dard setting.

4.4 Emergency Temporary Standards

The statute also provides for a third standard-setting approach, specified for emergency circumstances where the normal, ponderous rulemaking procedure would be too slow. Section 6(c) gives the agency authority to issue an emergency temporary standard (ETS) if necessary to protect workers from exposure to grave danger posed by substances “determined to be toxic or physically harmful or from new hazards.”28

Such standards are effective immediately upon publication in the Federal Register. An ETS is only valid, however, for six months. OSHA is thus under con- siderable pressure to conduct an expedited rulemaking for a permanent standard before the ETS lapses. For this reason, a quest for an emergency standard has been the preferred route for labor unions or other groups seeking a new OSHA standard. These ETSs have not fared well, however, when challenged in the courts; virtually all have been struck down as insufficiently justified.

4.5 General Duty Clause, 5(a)(1)

There is actually a fourth type of enforceable standard, one that covers situations for which no standards currently exist.

Since OSHA has standards for only a few hundred of the many thousands of potentially dangerous chemicals and workplace safety hazards, there are far more situations than the rules cover. Therefore, inspectors have authority under the General Duty Clause to cite violations for unsafe conditions even where specific standards do not exist.29 Agency policy has shifted back and forth between en- couraging the use of “Section 5(a)(1),” as the clause is often termed, since this en- sures that unsafe conditions will be addressed, and discouraging its use on the theory that employers should be liable only for compliance with specific stan- dards of which they are given knowledge.

However, the agency has acknowledged that many of the standards that do exist are woefully out of date and thus cannot be relied upon for adequate pro- tection of worker safety and health. The traditional notion was that compliance with an existing specific standard—even if demonstrably unsafe—precluded an

Occupational Safety and Health Act ❖ 15

28 OSH Act § 6(c)(1). 29 OSH Act § 5(a)(1); 29 U.S.C. § 654(a)(1).

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OSHA citation.30 This has been called into question by the courts. In April 1988, a federal appellate court allowed OSHA to cite for violations of the General Duty Clause even where a company was in full compliance with a specific numerical standard on the precise point in question.31 Bare compliance with the standards on the books, therefore, might not be responsible management.

4.6 Feasibility and the Balancing Debate

There has been a continuing debate over feasibility and balancing in OSHA en- forcement. The important issues include the following:

• Can OSHA legally consider economic factors in setting health or safety standards levels?

• If so, is this consideration limited only to extreme circumstances?

• Does the Occupational Safety and Health Act provide for a balancing of costs and benefits in setting standards?

• Can OSHA mandate engineering controls although they alone would still not attain the standard?

• Can OSHA require engineering controls even if personal protective equip- ment (such as ear plugs) could effectively, if often only theoretically, reduce hazards to a safe level and at a much lower cost?

These questions have been extensively litigated before the Occupational Safety and Health Review Commission (OSHRC) and the courts. Most of the debate has been over the interpretation of feasibility in Section 6(b)(5) of the Act.

One must remember that OSHA legislation was originally seen by Congress in rather absolutist terms: Any standard promulgated should be one “which most

16 ❖ Occupational Safety and Health Law Handbook

30 This is exemplified by Phelps Dodge Corporation (OSHRC Final Order, 1980), 9 OSHC 1222, which found no violation of the Act to expose workers to “massive amounts of sulphur dioxide for short periods of time” since there was no maximum ceiling value in the standard and the employer was complying with the eight- hour average value required in the specific sulphur dioxide regulation. The citation for violation of § 5(a)(1) was therefore vacated.

31 International Union, UAW v. General Dynamics Land System Division, 815 F.2d 1570, 13 OSHC 1201 (CADC 1988). The Court held that employer’s knowledge was the crucial element; if he knew that the OSHA standard was not adequate to protect workers from a hazard, he could not claim he was maintain- ing a safe workplace within the meaning of § 5(a)(1), even if he were adhering to a standard he knew was outmoded. The Court thereby dismissed the argument that the employer would not know what is legally expected of him; he was expected to maintain a safe workplace, specific regulations notwithstanding. There was no specific provision in the statute that prevented a general duty citation when a specific standard ex- isted. Note, however, that no other court has since used this rationale.

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adequately assumes . . . that no employee will suffer material impairment of health.” Only late in the congressional debate was the Department of Labor able to insert the phrase “to the extent feasible” into the text. This was intended to pre- vent companies having to close because unattainable standards were imposed on them, but it was not spelled out to what extent economic as well as technical fea- sibility was included.32

Since the term feasibility was not clearly defined, there has been much con- fusion over how to interpret what Congress intended, as the earlier cases show. In Industrial Union Department, AFL v. Hodgson, the D.C. Circuit accepted that economic realities affected the meaning of feasible, but only to the extent that “a standard that is prohibitively expensive is not ‘feasible.’”33 It was Congress’s in- tent, the court added, that this term would prevent a standard unreasonably “re- quiring protective devices unavailable under existing technology or by making fi- nancial viability generally impossible.” The court warned, however, that this doctrine should not be used by companies to avoid needed improvements in their workplaces:

Standards may be economically feasible even though, from the stand- point of employers, they are financially burdensome and affect profit margins adversely. Nor does the concept of economic feasibility neces- sarily guarantee the continued existence of individual employers.34

A similar view was adopted in 1975 by the Second Circuit in The Society of the Plastics Industry v. OSHA, written by Justice Clark, who cited approvingly the case above.35 He held that feasible meant not only that which is attainable tech- nologically and economically now, but also that which might reasonably be achievable in the future. In this case, which concerned strict emissions controls on vinyl chloride, he declared that OSHA may impose “standards which require improvements in existing technologies or which require the development of new technology, and . . . is not limited to issuing standards based solely on devices al- ready fully developed.”36

Occupational Safety and Health Act ❖ 17

32 This account of the behind-the-scenes machinations is based on this author’s personal discussions with the late Congressman William Steiger (R-Wisc.), a principal author of the Act, and Judge Lawrence Silberman, now of the Court of Appeals for the District of Columbia Circuit, who was then solicitor of labor. The legislative history is relatively unhelpful on this subject. See, for example, hearings before the Select Sub- committee on Labor, Committee on Education and Labor, “Occupational Safety and Health Act of 1969,” two vols., 1969.

33 499 F.2d 467, 1 OSHC 1631 (D.C. Cir., 1974). 34 1 OSHC 1631 at 1639. 35 509 F.2d 1301, 2 OSHC 1496 (2nd Cir., 1975), cert. den. 421 U.S. 922. 36 509 F.2d at 1309, 2 OSHC at 1502 (2nd Cir., 1975).

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Neither court undertook any risk-benefit analysis, such as attempting to compare the hundreds of millions of dollars needed to control vinyl chloride with the lives lost to angiosarcoma of the liver. Those who have attempted to develop such equations have generally concluded the task is undoable, at least for most such chronic health effects.37

A third federal appeals court, however, took a strongly contrary position in a case involving noise. In Turner Co. v. Secretary of Labor, the Seventh Circuit Court of Appeals decided that the $30,000 cost of abating a noise hazard should be weighed against the health damage to the workers, taking into con- sideration the availability of personal protective equipment to mitigate the risk.38

This holding is not unreasonable, but is based on a highly tenuous interpre- tation of the law. The court, without providing any clear rationale for its view, held that “the word ‘feasible’ as contained in 29 C.F.R. § 1910.95(6)(1) must be given its ordinary and common sense meaning of ‘practicable.’” (This may be so, but is of no analytical value.) From this the court concluded:

Accordingly, the Commission erred when it failed to consider the rela- tive cost of implementing engineering controls . . . versus the effective- ness of an existing personal protective equipment program utilizing fit- ted earplugs.39

This interpretation does not follow from the analysis. In fact, since the Turner Company had both the financial resources and the technical capability to abate the noise problem, compliance with the regulation would appear to be “practica- ble.” The court, however, considered this term to mean that a cost-benefit com- putation should be made.

In 1982, the U.S. Court of Appeals for the Ninth Circuit, in the case of Donovan v. Castle & Cooke Foods and OSHRC,40 also held that the Noise Act and the regulations permit consideration of relative costs and benefits to determine what noise controls are feasible.

OSHA gave the plant a citation on the grounds that, although Castle & Cooke required its employees to wear personal protective equipment, its failure

18 ❖ Occupational Safety and Health Law Handbook

37 See, for example, the conclusions of the National Academy of Sciences report, “Government Regulation of Chemicals in the Environment,” 1975.

38 561 F.2d 82, 5 OSHC 1970 (7th Cir., 1977). The Occupational Safety and Health Review Commission (OSHRC) decisions on Turner and the related Continental Can case can be found at 4 OSHC 1554 (1976) and 4 OSHC 1541 (1976), respectively.

39 5 OSHC 1790 at 1791. 40 692 F.2d 641, 10 OSHC 2169 (1982).

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to install technologically feasible engineering and administrative controls41 con- stituted a violation of the noise standard, and that the violation could only be abated by the implementation of such controls. OSHA argued that engineering and administrative controls should be considered economically infeasible only if their implementation would so seriously jeopardize the employer’s economic con- dition as to threaten continued operation.

On appeal, OSHA argued that neither the OSHRC nor the courts are free to interpret economic feasibility, because its definition is controlled by the Supreme Court’s decision in American Textile Manufacturers Institute, Inc. v. Donovan.42

The appeals court, however, decided that the Supreme Court’s interpretation of the term feasible made in American Textile was not deemed controlling for the noise standards. It also affirmed that economic feasibility should be determined through a cost-benefit analysis, and that in the case of Castle & Cooke the costs of economic controls did not justify the benefit that would accrue to employees. Thus, the decision to vacate the citation was upheld.

5.0 Variances

Companies that complain that OSHA standards are unrealistic are often not aware that they might be able to create their own version of the standards. The alternative proposed has to be at least as effective as the regular standard, but it can be different.

5.1 Temporary Variances

Section 6(b)(6)(A) of the OSH Act establishes a procedure by which any em- ployer may apply for a “temporary order granting a variance from a standard or any provision thereof.” According to the Act, the variance will be approved when OSHA determines that the requirements have been met and establishes:

Occupational Safety and Health Act ❖ 19

41 Engineering controls are those that reduce the sound intensity at the source of the noise. This is achieved by insulation of the machine, by substituting quieter machines and processes, or by isolating the machine or its operator. Administrative controls attempt to reduce workers’ exposure to excess noise through use of variable work schedules, variable assignments, or limiting machine use. Personal protective equipment in- cludes such devices as ear plugs and ear muffs provided by the employer and fitted to individual workers.

42 101 S. Ct. 2478, 9 OSHC 1913 (17 June 1981). In this case, representatives of the cotton dust industry challenged proposed regulations limiting permissible exposure levels to cotton dust. Section 6(b)(5) of the Act requires OSHA to “set the standard which most adequately assures, to the extent feasible . . . that no employee will suffer material impairment of health….” The industry contended that OSHA had not shown that the proposed standards were economically feasible. However, the Supreme Court upheld the cotton dust regulations, holding that the “plain meaning of the word ‘feasible’ is capable of being done, executed, or effected,” and that a cost-benefit analysis by OSHA is not required.

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• that the employer is unable to meet the standard “because of unavailabil- ity of professional or technical personnel or of materials and equipment,” or because alterations of facilities cannot be completed in time;

• that he is “taking all available steps to safeguard” his workers against the hazard covered by the standard for which he is applying for a variance; and

• that he has an “effective program for coming into compliance with the standard as quickly as practicable.”43

This temporary order may be granted only after employees have been notified and, if requested, there has been sufficient opportunity for a hearing. The vari- ance may not remain in effect for more than one year, with the possibility of only two six-month renewals.44 The overriding factor an employer must demonstrate for a temporary variance is good faith.45

5.2 Permanent Variances

Permanent variances can be issued under Section 6(d) of the OSH Act. A permanent variance may be granted to an employer who has demonstrated “by a preponderance” of evidence that the “conditions, practices, means, methods, op- erations or processes used or proposed to be used” will provide a safe and health- ful workplace as effectively as would compliance with the standard.

6.0 Compliance and Inspections

OSHA is primarily an enforcement organization. In its early years both the com- petence of its inspections and the size of the assessed fines were pitifully inadequate; they were the primary reason OSHA was not taken seriously by either labor unions or the business community. That picture has now changed significantly.

6.1 Field Structure

The Department of Labor (DOL) has divided the territory subject to the OSH Act into ten federal regions, the same boundaries that EPA also uses. Each region con- tains from four to nine area offices. When an area office is not considered necessary because of a lack of industrial activity, a district office or field station may be estab- lished. Each region is headed by a regional administrator, each area by an area direc-

20 ❖ Occupational Safety and Health Law Handbook

43 OSH Act § 7(b)(6)(A). 44 Id. 45 E. Klein, Variances, in Proceedings of the Occupational Health and Safety Regulations Seminar (Washington,

D.C.: Government Institutes, 1978), p. 74.

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tor. In the field, compliance officers represent area offices and inspect industrial sites in their vicinity, except in situations where a specialist or team might be required.

6.2 Role of Inspections

The only way to determine compliance by employers is inspections, but inspect- ing all the workplaces covered by the OSH Act would require decades. Each year there are tens of thousands of federal inspections, and as many or more state in- spections, but there are several million workplaces. Obviously, a priority system for high-hazard occupations is necessary, along with random inspections just to keep everyone “on his toes.”

Inspections are supposed to be surprises; there are criminal penalties for any- one alerting the sites beforehand. The inspections may occur in several ways: They may be targeted at random, triggered by worker complaints, set by a priority sys- tem based on hazardous probabilities, or brought on by events such as a fatality or explosion. Inspectors expect admittance without search warrants, but a company has the constitutional right to refuse admittance until OSHA obtains a search war- rant from a federal district court.46 Such refusal is frankly not a good idea except

Occupational Safety and Health Act ❖ 21

Figure 1.1 Inspections and Violations

46 See a later section in this chapter on the Supreme Court’s Barlow’s decision interpreting the Fourth Amend- ment to the U.S. Constitution.

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in very special circumstances, such as when the additional delay would allow a quick cleanup of the workplace to bring it into compliance.

6.3 Training and Competence of Inspectors

There has been a major problem with OSHA inspectors in the past—the train- ing program did not adequately prepare them for their tasks, and the quality of the hiring was uneven. In the early days there was tremendous pressure from the unions to get an inspection force on the job as soon as possible, so recruitment was often hurried and training was minimal. Inspectors would walk into a plant where, for example, pesticide dust was so thick workers could not see across the room, yet, because there was no standard as such, the inspectors would not think there was a problem.47 Yet, had there been a fire extinguisher in the wrong place, and had the inspector been able to see it through the haze, he would have cited the plant for a safety violation. This early bumbling was the source of much of the animus against OSHA that persists even today.

Competence among staff has markedly improved since the early days of the program. Both in-house training efforts by OSHA and increased numbers of pro- fessional training programs conducted by colleges and universities have con- tributed to these improvements. There is also a greater sensitivity towards work- ers and their representatives.48

6.4 Citations, Fines, and Penalties

If the inspector discovers a hazard in the workplace, a citation and a proposed fine may be issued. Citations can be serious, nonserious, willful, or repeated. By one count, there are at least nine types of penalty findings under the OSH Act. They are as follows:

• De minimis—These are technical violations, but they pose insignificant risk and for which no monetary penalty is warranted.

• Nonserious—This is the basic type of penalty. No risk of death or serious injury is posed, but the violation might still cause some harm.

• Serious—The hazard could lead to death or serious injury.

• Failure to correct—Violations when found must be remediated within a certain period of time. If a subsequent reinspection finds this has not been

22 ❖ Occupational Safety and Health Law Handbook

47 This happened with kepone in the notorious Hopewell, Virginia, incident in 1975, and with asbestos for years at a plant in Tyler, Texas.

48 Statement of Lane Kirkland, president, AFL-CIO, before the Senate Committee on Labor and Human Re- sources on Oversight of the Occupational Safety and Health Act, 1 April 1980.

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done, or the violation has been allowed to recur, this fairly serious citation is in order.

• Repeated—These are continuous violations, discussed below.

• Willful—These are intentional violations, discussed below.

• Criminal—These violations are applicable under the OSH Act only for cases involving death.49

• Egregious—These are supposedly heinous situations, discussed below.

• Section 11(c)—These are penalties for company retaliation against com- plainers and whistle-blowers, discussed at length below.

6.5 OSHA Citation and Penalty Patterns

OSHA now averages over 35,000 inspections a year.50 These are focused on the industries and sectors where statistics indicate greater potential hazards. Contrary

Occupational Safety and Health Act ❖ 23

Figure 1.2 Serious Violations as a Proportion of Total Violations

49 This is discussed in a separate chapter later in this book. 50 In 2006 there were 38,579 federal OSHA inspections resulting in 83,913 violations, of which 61,337 (73.1

percent) were categorized as “Serious”: state occupational safety and health agencies did another 58,058 in- spections finding 127,284 violations, of which 45.3 percent was classified as Serious.

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to the common assumption that most inspections are in manufacturing, in fact that sector accounts for only about one-fourth of the inspections. Over half are in the construction industry, with another quarter distributed over all other types of workplaces.

Specially targeted sectors in the manufacturing area, with four-digit Standard Industrial Classification (SIC) codes, have most recently been designated51:

• Plastic products (3089)

• Sheet metalwork (3444)

• Fabricated structural metal (3441)

• Metal stampings (3469)

• Fabricated metal products (3499)

• Motor vehicle parts (3714)

• Construction machinery (3431)

• Shipbuilding and repair (3731)52

24 ❖ Occupational Safety and Health Law Handbook

51 The SIC codes are officially being supplanted by something called the North American Industry Classifi- cation System (NAICS), but the transition is a gradual one.

52 “Top Ten Federal OSHA Targeted SIC Codes,” Manufacturing Sector, 4th Quarter 1998, OSHA.

Figure 1.3 Penalties

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6.6 Communicating and Enforcing Company Rules

Many accidents—arguably even most—are due to human negligence, often in- volving an act that is contrary to company policy. Merely claiming a company policy, however, is not enough, for OSHA does not look very favorably upon this defense. For employers to plead employee misconduct as a defense to an OSHA citation, the company must first demonstrate three things:

• First, of course, is to prove the existence of such rules.53

• Second, an employer must prove that these rules were effectively commu- nicated to the employees. Proof can include written instructions, evidence of required attendance at education sessions, the curriculum of training programs, and other forms that should be documented.54

• Third, many companies that can demonstrate the above two principles fall short on the third, namely that there should be evidence the policies are ef- fectively enforced.55 For this, evidence of disciplinary action taken against infractions of the rules, though not necessarily the precise rule that would have prevented the accident under investigation, is necessary. The closer to

Occupational Safety and Health Act ❖ 25

53 The Carborundum Company (OSHRC Judge, 1982), 10 OSHC 1979. 54 Schnabel Associates, Inc. (OSHRC Judge, 1982), 10 OSHC 2109. Moreover, employers should retain copies

of training curriculum, tests, and other evidence of the educational program, recommends Susan M. Olan- der, counsel for the Federated Rural Electric Insurance Exchange. BNA, OSHA Reporter, 19 October 200, pp. 933–934.

55 Galloway Enterprises, Inc. (OSAHRC Judge, 1984), 11 OSHC 2071.

Figure 1.4 Contest Rate

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the actual circumstance, of course, the more that proof of active company enforcement is dispositive.56

If the above three principles can all be demonstrated, they constitute a reasonable defense to charges of violating the regulations, even in cases of death or serious injury.

Note that this defense is not limited to the misconduct of a low-ranking em- ployee. Misconduct of a supervisor, although it may suggest inadequate company policy and direction, can also be shown as an isolated and personal failing. Ac- cording to an appellate court, the proper focus of a court is on the effectiveness of the employer’s implementation of his safety program and not on whether the unforeseeable conduct was by an employee or by supervisory personnel.57

6.7 Warrantless Inspections: The Barlow Case

Litigants have challenged OSHA’s constitutionality on virtually every conceivable grounds, from the First Amendment to the Fourteenth.58 The one case that has succeeded has led to the requirement of a search warrant, if demanded, for OSHA inspectors.

The Supreme Court in Marshall v. Barlow’s Inc.,59 decided that the Fourth Amendment to the Constitution, providing for search warrants, was applicable to OSHA, thereby declaring unconstitutional Section 8(a) of the act, in which Con- gress had authorized warrantless searches.60

While the court held that OSHA inspectors are required to obtain search warrants if denied entry to inspect, it added that OSHA must meet only a very minimal probable cause requirement under the Fourth Amendment in order to obtain them. As Justice White explained:

Probable cause in the criminal sense is not required. For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing vi-

26 ❖ Occupational Safety and Health Law Handbook

56 Bethlehem Steel Corporation, Inc. (OSAHRC Judge, 1985), 12 OSHC 1606. Dover Electric Company, Inc. (OSAHRC Judge, 1984), 11 OSHC 2175.

57 Brock v. L. E. Myers Company, 818 F.2d 1270, 13 OSHC 1289 (6th Cir., 1987). 58 A good, if dated, summary of these challenges is found in Volume I of A Practical Guide to the Occupational

Safety and Health Act, by Walter B. Connolly and David R. Cromwell, II, (New York: New York Law Jour- nal Press, 1977).

59 436 U.S. 307 (1978). 60 There are non-OSHA circumstances in which warrants are not required, such as federal inspection of liquor

dealers, gun dealers, automobiles near international borders, and in other matters with a long history of fed- eral involvement.

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olation but also on a showing that “reasonable legislative or administra- tive standards for conducting an . . . inspection are satisfied with respect to a particular [establishment].”61

Moreover, if too many companies demanded warrants, so that the inspection program was seriously impaired, the Court indicated that it might reconsider its ruling. This ironically would make enjoyment of a Constitutional right partly contingent on few attempting to exercise it. It is therefore not surprising that commentators, both liberals and conservatives, were critical of the decision. Con- servative columnist James J. Kilpatrick declared flatly:

If the Supreme Court’s decision in the Barlow case was a “great victory,” as Congressman George Hansen proclaims it, let us ask heaven to pro- tect us from another such victory anytime soon.62

7.0 Recordkeeping

For an agency that seems grounded in practical workplace realities, OSHA’s reg- ulations increasingly emphasize recordkeeping and paperwork requirements. Moreover, recent OSHA enforcement efforts have been directed heavily toward paperwork violations.

7.1 Accident Reports

Any workplace accident requiring treatment or resulting in lost work time must be recorded within six working days on an OSHA Form 300. This is officially en- titled the Log and Summary of Recordable Occupational Injuries and Illnesses, although no one uses that longer term. This document is supposed to provide in- sight into accident types and causes for both the company and OSHA inspectors. It must be retained for five years. Criminal penalties apply to any “knowing false representation” on these and other required records.63

There is a new document, Form 300A, which provides additional informa- tion and supposedly makes it easier for employers to calculate injury incidence rates.

A third document is the OSHA Form 301, which describes in detail the na- ture of each of the recorded accidents. All the supporting information does not have to be on this one form, provided that the material is available in the file.

Occupational Safety and Health Act ❖ 27

61 Marshall v. Barlow’s Inc., supra, quoting Camara v. Municipal Court, 387 U.S. 523 at 538 (1967). 62 Washington Star, 2 June 1978. 63 OSH Act § 17(g).

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This form is officially called the Supplementary Record of Occupational Injuries and Illnesses.

A fourth required document is the Annual Summary of accidents and ill- nesses, statistics based on the Form 300 data. This summary must be signed by a responsible corporate official and posted in some conspicuous place by the fol- lowing 1st of February each year.64

7.2 Monitoring and Medical Records

OSHA’s health standards increasingly contain provisions calling for medical records, monitoring of pollution, and other information. Safety, as well as health standards, may also require periodic inspections of workplaces or equipment, and these inspections must be recorded. These medical and exposure records must be retained for a staggering 30 years. A company going out of business or liquidat- ing must transfer these records to NIOSH.65

For example, the OSHA noise standards mandate baseline and periodic hear- ing tests,66 the lead standard requires measuring of blood-lead levels and other data that can be the basis for removal from the workplace until the levels go down; and the ionizing radiation regulation requires careful recording of expo- sure and absorption information.

A host of safety (and some health) regulations requires (1) written safety pro- grams, (2) specified training, or (3) documented routine inspections, or combi- nations of all three.

There is no clear pattern to these requirements; they must be checked sepa- rately for each regulation. For example, the safety standard on derricks does not call for the first but does call for the second and third requirements, while cranes require only the third.67 Some safety standards, such as fire protection, lock- out/tagout, process safety management, and employee alarms, require all three.68

The health standards tend to require all three as well, including those for blood- borne pathogens and for hazard communications.69

28 ❖ Occupational Safety and Health Law Handbook

64 Recordkeeping requirements are set forth generally in 29 C.F.R. 1904. 65 29 C.F.R. § 1910.20. 66 OSHA’s noise monitoring and recordkeeping requirements for hearing loss and standard threshold shift (STS,

previously “significant threshold shift”) are particularly complex and have been subject to considerable liti- gation.

67 29 C.F.R. § 1910.181, and § 1910.178–179. 68 29 C.F.R. §§ 1910.156 et seq., 1910.147, 1910.119, and 1910.165. 69 29 C.F.R. § 1910.1030, and 29 C.F.R. § 1200.

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OSHA has increasingly levied substantial fines for failure to comply with these recordkeeping regulations. For example, in October 2000 a Texas steel- maker was fined $1.7 million, much of it for “purposefully” not recording work- place injuries and illnesses.71

7.3 Hazard Communication

The OSHA hazard communication (hazcom) program, which is described more fully later in this chapter, requires companies making or using hazardous chemi- cals to provide information to their workers on possible exposure risks. The pro- gram provides for these measures:

1. Toxic chemical labeling,

2. Warning signs and posters,

3. Material Safety Data Sheets (MSDSs) on hazardous chemicals,

4. A written policy setting forth the company’s handling of issues under the hazcom program; and

5. A list of hazardous chemicals on premises.71

7.4 Access to Records

Employees and their designated legal or union representatives have the right to obtain access to their records within 15 working days. They may not be charged for duplication or other costs. Former employees are also given this access.

There are certain limited exceptions to disclosure dealing with psychiatric evaluation, terminal illness, and confidential informants. Otherwise the view is that even the most secret chemical formulas and business information must be re- vealed to the employees or former employees if they are relevant to exposure and toxicity. This could be a godsend for industrial espionage, but so far there have been few claims that this is a practical problem.

OSHA inspectors also have access to these records. From time to time some company challenges this access as a violation of the Fourth Amendment, but an inspector has little difficulty in obtaining a search warrant.

Occupational Safety and Health Act ❖ 29

70 BNA, OSHA Reporter, 26 October 2000, p. 951. 71 29 C.F.R. 1910.1200.

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7.5 Programmatic Standards

OSHA is giving more attention to programmatic standards. The controversial er- gonomics proposed standard, for example, was based on companies providing ev- idence that they have set up a specific program rather than having OSHA dictate what the detailed content of that program should be. Although these are perhaps not recordkeeping in the absolute sense, their reliance on paperwork and docu- mentation merits their mention in this recordkeeping section.

8.0 Refusal to Work and Whistle-blowing

Employees have a right to refuse to work when they believe conditions are unsafe. OSHA rules protect them from discrimination based on this refusal. And if em- ployees see unsafe or unhealthy workplace conditions, they have a right to report them to OSHA without fear of reprisals or discrimination.

8.1 Refusal to Work

OSHA has ruled, and the Supreme Court has unanimously upheld, the OSHA principle that workers have the right to refuse to work in the face of serious in- jury or death.72 The leading case was a simple one. Two workers refused to walk on the thin wire mesh screens suspended high above the workplace through which several workers had fallen partway through and, two weeks before, another worker had fallen to his death. When reprimanded, the workers complained to OSHA. The Supreme Court had no difficulty in finding that the workers had been improperly discriminated against by their employer in this case.

How a court would rule in less glaring circumstances is harder to predict. In- terestingly, there has not been a swarm of such cases in the two decades since this decision, despite dire predictions of wholesale refusal and consequent litigation.

8.2 Protection of Whistle-blowing

If a worker is fired or disciplined for complaining to governmental officials about unsafe work conditions, he has a legal remedy under the OSH Act for restoration of his job or loss of pay.73 Similar provisions, administered also by OSHA’s “11(c)” staff, have been inserted into 13 other federal statutes, including EPA’s Emergency Planning and Community Right-to-Know Act (EPCRA) in the Superfund legis-

30 ❖ Occupational Safety and Health Law Handbook

72 29 C.F.R. § 1977.12 (1979); Whirlpool Corp. v. Marshall, 445 U.S. 1, 8 OSHC 1001 (1980). This case also stands as a textbook example of when not to appeal a lower court’s ruling.

73 OSH Act § 11(c), 29 U.S.C. § 660; 29 C.F.R. § 1977.

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lation, as well as ones that have little to do with environmental or occupational protection.74

Congress assumed that the employees in a given workplace would be best ac- quainted with the hazards there. It therefore statutorily encouraged prompt OSHA response to worker complaints of violations.75 Since this system could be undermined if employers penalized complaining employees, the Act in Section 11(c) provides sanctions against such retaliation or discrimination:

No person may discharge or in any manner discriminate against any em- ployee 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 af- forded by this Act.76

If discrimination occurs, particularly if an employee is fired, a special OSHA team intervenes to obtain reinstatement, back wages, or—if return to the com- pany is undesirable—a cash settlement for the worker. If agreement cannot be reached, the agency resorts to litigation.

This entire system has not worked quite as expected. First, worker com- plaints have surprisingly not been a very fruitful source of health and safety in- formation. Far too many of the complaints came in bunches, coinciding with la- bor disputes in a particular plant.77 OSHA therefore finally had to abandon its policy of trying to investigate every single complaint.78

Second, the Title 11(c) process has worked slowly and uncertainly, so even though an employee may receive vindication, the months (or even years) of de- lay and anguish are a strong disincentive for workers to report hazards.

Third, it is often difficult to determine whether a malcontented worker was fired for informing OSHA or for a number of other issues that might cloud the employer-employee relationship. Does the complaint have to be the sole

Occupational Safety and Health Act ❖ 31

74 Title III of the Superfund Amendment and Reauthorization Act of 1986 (SARA). These amendments are designed to “prevent future Bhopals” (the 1984 chemical disaster that killed thousands of residents of the city of Bhopal, India) by informing community fire and emergency centers what chemicals a company has on site. Dominique Lapierre and Javier Moro, Five Past Midnight in Bhopal: The Epic Story of the World’s Deadliest Industrial Disaster (New York: AOL Time Warner, 2002).

75 OSH Act § 8(f )(1). 76 OSH Act § 11(c)(1). 77 A contrary view by Peg Seminario, AFL-CIO’s director of Health and Safety, is that “Historically OSHA

inspections conducted as a result of a complaint produce just as significant results in identifying serious vi- olations and uncovering hazards as the general scheduled inspections.” Quoted in BNA, OSHA Reporter, 16 March 2000, p. 202.

78 OSHA has nevertheless strengthened the workers’ role in the on-site consultation process. 29 C.F.R. § 1908 (December 2000).

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cause of dismissal or discrimination, or can some (fairly arbitrary) allocation be made?

Fourth, there is continuing controversy over whether 11(c) should protect workers complaining of hazards to those other than OSHA, even if the direct or indirect result is an OSHA inspection.

In the famous Kepone tragedy of 1975, an employee complained of hazard- ous chemicals to his supervisor, was fired, and only then went to OSHA. Not only was he declared unprotected by the Act, but his complaint, no longer a worker complaint, was not even investigated at the time. Although agency offi- cials have sworn not to repeat that mistake, the issue of what triggers 11(c) pro- tection, either (a) a complaint of unsafe workplace conditions, or (b) reporting that matter to OSHA, is a continuing one.

A related current issue is whether an employee who reports a hazard to the press, whose ensuing publicity triggers an OSHA investigation, is protected by 11(c). In one notable instance, OSHA regional officials decided in favor of the worker and won the subsequent litigation in federal district court. The solicitor of labor, how- ever, disagreed and attempted to withdraw the agency from a winning position.79

Still, in one recent case, a Brooklyn bookstore worker supposedly dismissed for whistle-blowing in March 2006 was reinstated with a small cash settlement by August. More typical was an airline worker in Puerto Rico who took four years to litigate through the district court and court of appeals before being awarded a somewhat larger amount.80 So a worker can never really be sure how he might fare if he does complain.

9.0 Federal and State Employees

The exclusion of federal and state employees has been the topic of much discus- sion and debate.

9.1 Federal Agencies

Federal employees are not covered directly by OSHA, at least not to the extent that federal agencies are subject to fines and other penalties. However, the pre- sumption was that the agencies would follow OSHA regulations in implement- ing their own programs. Section 19 of the OSH Act designates the responsibility for providing safe and healthful working conditions to the head of each agency.

32 ❖ Occupational Safety and Health Law Handbook

79 Washington Post, “About Face Considered in OSHA Suit,” 20 October 1982. 80 Occupational Hazard, news for 2 August 2006 and 10 March 2006, respectively, at www.occupationalhaz-

ard.com.

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A series of presidential executive orders has emphasized that this role should be taken seriously. Nevertheless, many commentators feel the individual agencies’ programs are inadequate and inconsistent.

In 1980 the leading presidential executive order81 was issued, which broad- ened the responsibility of federal agencies for protecting their workers, expanded employee participation in health and safety programs, and designated circum- stances under which OSHA will inspect federal facilities. In the operation of their internal OSHA programs, agency heads have to meet requirements of basic pro- gram elements issued by the Department of Labor and comply with OSHA stan- dards for the private sector unless they can justify alternatives.

9.2 State Employees

The OSH Act excludes the employees of state governments. Virtually all states with their own OSHA programs—about half—however, cover their state and lo- cal employees. Some labor unions believe this exclusion of state workers is one of the most serious gaps in the OSH Act, and several congressional bills have sought in vain to remedy the perceived omission. In light of recent Supreme Court de- cisions, however, such bills even if enacted might not be constitutional.

10.0 State OSHA Programs

The federal OSHA program was intended by many legislators and businesses only to fill the gaps where state programs were lacking. The states were to be the primary regulatory control. It has not happened that way, of course, but approx- imately two dozen state programs are still important.82

10.1 Concept

The OSH Act requires OSHA to encourage the states to develop and operate their own job safety and health programs, which must be “at least as effective as” the federal program.83 Until effective state programs were approved, federal en- forcement of standards promulgated by OSHA preempted state enforcement,84

Occupational Safety and Health Act ❖ 33

81 Executive Order 12196, signed 26 February 1980, 45 FR 12769, superseding E.O. 11807 of 28 Septem- ber 1974.

82 There are 21 states and one territory with complete state plans for the private and public sectors, and three states and one territory that cover only public employees. Around 10 others have withdrawn their programs over the past three decades, but the number has never been more than half the states.

83 OSH Act §§ 2(b)(11) and 18(c)(2). 84 OSH Act § 18(a).

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and continue to do so where state laws have major gaps. Conversely, state laws re- main in effect when no federal standard exists.

Before approving a submitted state plan, OSHA must make certain that the state can meet criteria established in the Act.85 Once a plan is in effect, the Sec- retary may exercise “authority . . . until he determines, on the basis of actual op- erations under the State plan, that the criteria set forth are being applied.”86 But he cannot make such a determination for three years after the plan’s approval. OSHA may continue to evaluate the state’s performance in carrying out the pro- gram even after a state plan has been approved. If a state fails to comply, the ap- proval can be withdrawn, but only after the agency has given due notice and op- portunity for a hearing.

10.2 Critiques

The program has not developed as anticipated into an essentially state-oriented system, although almost half the states have their own system.

Organized labor has never liked the state concept, both because of its poor experience with state enforcement in the past and because it realized that its strength could more easily be exercised in one location—Washington, D.C.— than in all fifty states and the territorial capitals, many of which are traditionally hostile to labor unions. This has meant, ironically, that some of the better state programs, in areas where unions had the most influence, were among the first re- jected by state legislators under strong union pressure.

Industry has cooled to the local concept, which requires multistate compa- nies to contend with a variety of state laws and regulations instead of a uniform federal plan. Furthermore, state OSHAs are often considerably larger than the lo- cal federal force, so there can be more inspections.

It was therefore never clear what incentive a state had to maintain its own pro- gram, since a governor could always terminate his state’s plan and save the budget- ary expenses, knowing that the federal government would take up the slack. Cali- fornia’s Governor George Deukmejian, for example, came to this conclusion in 1987 and terminated the state Cal-OSHA. However, the idea did not stick; California’s state program was soon reestablished and, surprisingly, the notion did not spread.

Organized labor and industry are not alone in their criticism of the state pro- grams. Health research organizations, OSHA’s own national advisory committee (NACOSH), and some of the states themselves have also voiced disapproval of the state program policy. Ineffective operations at the state level, disparity in federal

34 ❖ Occupational Safety and Health Law Handbook

85 OSH Act § 18(c)(1–8). 86 OSH Act § 18(c).

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funding, and the lack of the necessary research capability are just a few of the crit- icisms lodged.87

There is some defense of state control, however: “To the extent that local control increases the responsiveness of programs to the specific needs of people in that area, this [a state plan] is a potentially good policy.”88 But reevaluation and revision will be necessary in the next several years if OSHA’s policy for state pro- grams is to be accepted by all the factions involved.

11.0 Consultation

Employers subject to OSHA regulation, particularly small employers, would ben- efit from on-site consultation to determine what must be done to bring their workplaces into compliance with the requirements of the OSH Act. This was par- ticularly true during the agency’s formative years. Although OSHA’s manpower and resources are limited, this assistance, where rendered, should be free from ci- tations or penalties.

In FY 2005 the agency recorded 31,500 consultative visits to smaller busi- nesses, and almost 900 (mostly larger) companies were recognized in the Safety and Health Achievement Recognition Program (SHARP).89

As in so many other areas of OSHA regulation, there has been a great deal of controversy surrounding the consultation process. Union leaders have always feared that OSHA could become merely an educational institution rather than one with effective enforcement. But Section 21(c) of the Act does mandate con- sultation with employers and employees “as to effective means of preventing oc- cupational injuries and illnesses.”90

11.1 Education

Along with the consultation provisions, the statute provides for “programs for the education and training of employers and employees in the recognition, avoid- ance, and prevention of unsafe or unhealthful working conditions in employ- ments covered” by the Act.91 OSHA produces brochures and films to educate

Occupational Safety and Health Act ❖ 35

87 Robert Hayden, “Federal and State Rules” in Proceedings of the Occupational Health and Safety Regulation Seminar (Washington, D.C.: Government Institutes, 1978), pp. 9–10.

88 Nicholas A. Ashford, Crisis in the Workplace: Occupational Disease and Inquiry (Boston: MIT Press, 1976), p. 231.

89 “OSHA: 2005, 2006 and Beyond,” in Occupational Hazards, news for 26 January 2006,at www.occupa- tionalhazards.com.

90 OSH Act § 21(c)(2). 91 OSH Act § 21(c)(1).

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employees about possible hazards in their workplaces. But there are problems at every stage of the information process, from generation to utilization.

Back in 1979, OSHA began experimenting with a New Directions Training and Education Program, which made available millions in grants to support the de- velopment and strengthening of occupational safety and health competence in busi- ness, employee, and educational organizations. This program supported a broad range of activities, such as training in hazard identification and control; workplace risk assessment; medical screening and recordkeeping; and liaison work with OSHA, the National Institute for Occupational Safety and Health, and other agen- cies. “The goal of the program was to allow unions and other groups to become fi- nancially self-sufficient in supporting comprehensive health and safety programs.”89

This program, criticized by some as a payoff to constituent groups, especially labor unions, was a natural target of the budget cutters during the Reagan administration, but the concept of increased consultation has been given even greater emphasis.

There is also a provision that state plans may include on-site consultation with employers and employees to encourage voluntary compliance.93 The per- sonnel engaged in these activities must be separate from the inspection person- nel, and their existence must not detract from the federal enforcement effort. These consultants not only point out violations, but also give abatement advice.

11.2 Alliances

Much of OSHA’s focus over the past decade has been in arranging “alliances” with trade associations, businesses, professional groups, and even universities. The present program, initiated in March 2002, attempts to enlist other organi- zations in the safety fight and also serves to make the public image of OSHA less confrontational. Whether this will result in better workplace safety and health than, say, reviving the near-dead standard-setting effort remains to be seen.

12.0 Overlapping Jurisdiction

There are other agencies involved with statutory responsibilities that affect occu- pational safety and health. These agencies indirectly regulate safety and health matters in their attempt to protect public safety.

One example of an overlapping agency is the Department of Transportation and its constituent agencies, such as the Federal Railroad Administration and the Federal Aviation Administration. These agencies promulgate rules concerned

36 ❖ Occupational Safety and Health Law Handbook

92 U.S. Department of Labor, “OSHA News,” 12 April 1978. 93 29 C.F.R. § 1902.4(c)(2)(xiii).

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with the safety of transportation crews and maintenance personnel, as well as the traveling public, and consequently overlap similar responsibilities of OSHA.

Section 4(b)(1) of the OSH Act states that when other federal agencies “ex- ercise statutory authority to prescribe or enforce standards or regulations affect- ing occupational safety or health,” the OSH Act will not apply to the working conditions addressed by those standards. MOUs between these agencies and OSHA have eliminated much of the earlier conflict.

The Environmental Protection Agency is the organization that overlaps most frequently with OSHA. When a toxic substance regulation is passed by EPA, OSHA is affected if that substance is one that appears in the workplace. For in- stance, both agencies are concerned with pesticides, EPA with the general envi- ronmental issues surrounding the pesticides and OSHA with some aspects of the agricultural workers who use them. During the early 1970s, there was a heated interagency conflict over field reentry standards for pesticides, a struggle that spilled over into the courts and eventually had to be settled by the White House in EPA’s favor.94 The OSHA-EPA MOU of 1990 and similar such agreements hopefully will prevent repetitions of such problems.

Thus, although the health regulatory agencies generally function in a well-de- fined area, overlap does occur. As another example, there are toxic regulations un- der Section 307 of the Federal Water Pollution Control Act, Section 112 of the Clean Air Act, and under statutes of the Food and Drug Administration (FDA) and Consumer Product Safety Commission (CPSC). These regulatory agencies realized the need for coordination, particularly when dealing with something as pervasive as toxic substances, and under the Carter administration combined their efforts into an interagency working group called the Interagency Regulatory Liaison Group (IRLG). Although the IRLG was abolished at the beginning of the Reagan admin- istration, the concept of interagency working groups is a good one. The federal agencies involved in regulation should rid themselves of the antagonism and rivalry of the past and cooperate with one another to meet the needs of the public.

13.0 Occupational Safety and Health Review Commission

The OSH Act established the Occupational Safety and Health Review Com- mission (OSHRC) as “an independent quasi-judicial review board”95 consisting of three members appointed by the president to six-year terms. Any enforcement

Occupational Safety and Health Act ❖ 37

94 Florida Peach Growers Assn. v. Dept. of Labor, 489 F.2d 120 (5th Cir., 1974). To avoid this type of con- frontation, in 1976 Congress provided in Section 9 of the Toxic Substances Control Act for detailed coor- dination procedures to be followed when jurisdictional overlap occurs.

95 Ashford, Crisis, p. 145.

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actions of OSHA that are challenged must be reviewed and ruled upon by the Commission.96

13.1 OSHRC Appeal Process

Any failure to challenge a citation within fifteen days of issuance automatically re- sults in an action of the Review Commission to uphold the citation. This decision by default is not subject to review by any court or agency. When an employer chal- lenges a citation, the abatement period, or the penalty proposed, the Commission then designates a hearing examiner: an administrative law judge who hears the case; makes a determination to affirm, modify, or vacate the citation or penalty; and re- ports his finding to the Commission.97 This report becomes final within thirty days unless a Commission member requests that the Commission itself review it.

The employer or agency may then seek a review of the decision in a federal appeals court.

13.2 Limitations of the Commission

One of the major problems with the Review Commission is the question of its jurisdiction: “The question has arisen of the extent to which the Commission should conduct itself as though it were a court rather than a more traditional ad- ministrative agency.”98 The Commission cannot look to other independent agen- cies in the government for a resolution of this problem “because its duties and its legislative history have little in common with the others.”99 It cannot conduct in- vestigations, initiate suits, or prosecute; therefore, it is best understood as an ad- ministrative agency with the limited duty of “adjudicating those cases brought be- fore it by employers and employees who seek review of the enforcement actions taken by OSHA and the Secretary of Labor.”100

Another problem inherent in the organization of the Commission is the sep- aration from the president’s administration. There has been a question of where the authority of the administration ends and the authority of the Commission begins. Because of the autonomous nature of the Review Commission, it cannot always count on the support of the Executive agencies. In fact, OSHA has gen- erally ignored Review Commission decisions, and few inspectors are even aware of the Commission interpretations on various regulations. With the present head of OSHA, Edwin Foulke, a former commissioner (1990–1995) and chairman of

38 ❖ Occupational Safety and Health Law Handbook

96 OSH Act § 12(a)–(b). 97 OSH Act § 12(j). 98 Ashford, Crisis, p. 145. 99 Id., pp. 281-82. 100 Id.

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the Review Commission for five years of his six-year term, it will be interesting to see if the pattern changes.

14.0 National Institute for Occupational Safety and Health

The standard-recommending arm of OSHA is actually in a totally separate gov- ernment department. This procedure has never worked well, even at best during the late 1970s, and has now ceased to work at all.

14.1 In Theory

Under the OSH Act, the Bureau of Safety and Health Services in the Health Ser- vices and Mental Health Administration was restructured to become the National Institute for Occupational Safety and Health (NIOSH), so as to carry out HEW’s responsibilities under the Act.101 (HEW—the Department of Health, Education, and Welfare—has since become the Department of Health and Human Services, HHS.) For the past two decades NIOSH has reported, illogically, to the Centers for Disease Control (CDC), and the two organizations have headquarters in Atlanta.

Since mid-1971, NIOSH has claimed the training and research functions of the Act, along with its primary function of recommending standards. For this lat- ter task, NIOSH provides recommended standards to OSHA in the form of cri- teria documents for particular hazards. These are compilations and evaluations of all available relevant information from scientific, medical, and (occasionally) en- gineering research.

The order of hazards selected for criteria development is determined several years in advance by a NIOSH priority system based on severity of response, pop- ulation at risk, existence of a current standard, and advice from federal agencies (including OSHA) as well as involved professional groups.102 The criteria docu- ments may actually have some value apart from the role in standards-making. Even though they do not have the force of law, they are widely distributed to in- dustry, organized labor, universities, and private research groups as a basis to con- trol hazards. The criteria documents also serve as a “basis for setting international permissible limits for occupational exposures.”103

14.2 In Practice

To the extent that certain criteria documents may be deficient, as discussed earlier, this expansive role for them among laymen poses a real problem. This problem

Occupational Safety and Health Act ❖ 39

101 OSH Act § 22(a). 102 John F. Finklea, “The Role of NIOSH in the Standards Process,” in Proceedings of the Occupational Health

and Safety Regulation Seminar, p. 38. 103 Id., p. 39.

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may unfortunately become worse if NIOSH declines in both funds and morale. Nevertheless, there is arguably some small benefit in having the two organizations separate. NIOSH has on occasion criticized OSHA for regulatory decisions that the former believed were scientifically untenable.

A review of NIOSH criteria projects shows that virtually all date from the 1970s and still await OSHA action. Almost no new documents have emerged in the past two decades.

Since OSHA does not react to its recommendations, the agency has tried to reinvent itself as a guide to the public. For example, in 2006, the U.S. Chemical Safety and Hazard Investigation Board (CSB) proposed that NIOSH include re- search on chemical production safety in the National Occupational Research Agenda (NORA). This suggestion would focus the organization on ways to prevent, for ex- ample, the series of deadly explosions at oil refineries in Texas and elsewhere.104

Not under consideration is the idea of just eliminating the moribund agency.

15.0 Hazard Communication Regulations

OSHA’s output of health standards has never been impressive. In recent years, it has tried three new approaches to get around this bottleneck. The first was the “federal” cancer policy designed to create a template for dealing in an expedited fashion with a number of hazardous chemicals. The second was the wholesale re- view initiated in 1988 of all the Z-1 list consensus standards—an effort struck down by the courts.

The third, characterized by one OSHA official as the agency’s most impor- tant rulemaking ever, is the hazard communication (hazcom) regulation issued in November 1983.105

15.1 Reason for the Regulation

This standard, sometimes known as the worker right-to-know rule, provides that hazardous chemicals must be labeled, Material Safety Data Sheets (MSDSs) on hazards be prepared, and workers and customers should be informed of potential chemical risks.

How could a rule with such far-reaching consequences be issued from an ad- ministration that so stressed deregulation and deliberately avoided issuing other protective regulations? The answer lies in an almost unprecedented grassroots

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104 “CSB Proposes New Ideas for Updated NIOSH Agenda”, in Occupational Hazards, news for 7 March 2006, at www.occupationalhazards.com.

105 49 FR 52380, 25 November 1983.

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movement at the state and municipal level to enact their own “worker right-to- know” laws that, many businessmen felt, could be a considerable burden on in- terstate commerce. They therefore lent their support to OSHA in its confron- tation with the Office of Management and Budget (OMB) at the White House. A federal regulation on this subject would arguably preempt the multiplicity of local laws.

The rule was originally presumed to apply to only a few hundred, perhaps a thousand, particularly hazardous chemicals. The individual employers would evaluate the risk and then decide for themselves which products merited cover- age. Most employers were unable or unwilling to make such scientific determi- nations. Within a year or two, this limited program expanded into universal cov- erage.

15.2 Scope and Components

Published on 25 November 1983, OSHA’s Hazard Communication or “Right- to-Know” Standard106 went into effect two years later, in November 1985, for chemical manufacturers, distributors, and importers, and in May 1994 for man- ufacturers that use chemicals. It required that employees be provided with infor- mation concerning hazardous chemicals through labels, Material Safety Data Sheets, training and education, and lists of hazardous chemicals in each work area. Originally it covered only manufacturing industries classified in SIC codes 20–39, but by court order in 1987, it was extended to virtually all employers.107

Every employer must assess the toxicity of chemicals it makes, distributes, or uses based on guidelines set forth in the rule. Then it must provide this material downstream to those who purchase the chemicals through MSDSs.108 The em- ployers are then required to assemble a list of the hazardous materials in the work- place, label all chemicals, provide employees with access to the MSDSs, and pro- vide training and education. While all chemicals must be evaluated, the “communication” provisions apply—in theory—only to those chemicals known to be present in the workplace in such a way as to potentially expose employees to physical or health hazards.

Special provisions apply to the listing of mixtures that constitute health haz- ards. Each component that is itself hazardous to health and that comprises one percent or more of a mixture must be listed. Carcinogens must be listed if pres- ent in quantities of 0.1% or greater.

Occupational Safety and Health Act ❖ 41

106 48 FR 53280; 29 C.F.R. § 1200. 107 52 FR 31852, 24 August 1987, in response to United Steelworkers of America, AFL-CIO v. Pendergrass, 819

F.2d 1263 (3rd Cir., 1987). 108 There is some legal question whether OSHA, which has jurisdiction over employer-employee health and

safety relations, has authority over the relationship between a company and its downstream customers.

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The Hazard Communication Standard is a performance-oriented rule. While it states the objectives to be achieved, the specific methods to achieve those ob- jectives are at the discretion of the employer. Thus, in theory, employers have considerable flexibility to design programs suitable for their own workplaces. However, this may mean the employers will have questions about how to comply with the standard.

The purpose of labeling is to give employees an immediate warning of haz- ardous chemicals and a reminder that more detailed information is available. Containers must be labeled with identity, appropriate hazard warnings, and the name and address of the manufacturer. The hazard warnings must be specific, even as to the endangered body organs. For example, if inhalation of a chemical causes lung cancer, the label must specify that and cannot simply say “harmful if inhaled” or even “causes cancer.” Pipes and piping systems are exempt from la- beling, as are those substances required to be labeled by another federal agency.

MSDSs, used in combination with labels, are the primary tools for transmit- ting detailed information on hazardous chemicals. An MSDS is a technical doc- ument that summarizes the known information about a chemical. Chemical manufacturers and importers must develop an MSDS for each hazardous chem- ical produced or imported and pass it on to the purchaser at the time of the first shipment. The employer must keep these sheets where employees will have access to them at all times.

The purpose of employee information and training programs is to inform employees of the labels and MSDSs and to make them aware of the actions re- quired to avoid or minimize exposure to hazardous chemicals. The format of these programs is left to the discretion of the individual employer. Training pro- grams must be provided at the time of initial assignment and whenever a new hazard is introduced into the workplace.

15.3 Hazard Evaluation

Chemical manufacturers are required to evaluate all chemicals they sell for poten- tial health and physical hazards to exposed workers. Purchasers of these chemicals may rely on the supplier’s determination or may perform their own evaluations.

There are really no specific procedures to follow in determining a hazard. Testing of chemicals is not required, and the extent of the evaluation is left to the manufacturers and importers of hazardous chemicals. However, all available sci- entific evidence must be identified and considered. A chemical is considered haz- ardous if it is found to be so by even a single valid study.

Chemicals found on the following master lists are automatically deemed haz- ardous under the standard:

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• The International Agency for Research on Cancer (IARC) monograph

• The Annual Report on Carcinogens published by the National Toxicology Program (NTP)

• OSHA’s Subpart Z list, found in Title 29 of the Code of Federal Regula- tions, Part 1910 or

• Threshold Limit Values for Chemical Substances and Physical Agents in the Work Environment, published by the American Conference of Gov- ernmental Industrial Hygienists

If a substance meets any of the health definitions in Appendix A of the stan- dard, it is also to be considered hazardous. The definitions given are for a car- cinogen, a corrosive, a chemical that is highly toxic, an irritant, a sensitizer, a chemical that is toxic, and target organ effects.

Appendix B of the standard gives the principal criteria to be applied in com- plying with the hazard determination requirement. First, animal as well as human data must be evaluated. Second, if a scientific study finds a chemical to be haz- ardous, the effects must be reported whether or not the manufacturers or im- porters agree with the findings.

Appendix C of the standard gives a lengthy list of sources that may assist in the evaluation process. The list includes company data from testing and reports on hazards, supplier data, MSDSs or product safety bulletins, scholarly text books, and government health publications.

In practice, as noted above, companies have begun requiring MSDSs from manufacturers for all chemicals they purchase, so the evaluation aspect of the standard has become unimportant.

15.4 Trade Secrets

Although there is agreement that there must be a delicate balance between the employee’s right to be free of exposure to unknown chemicals and the employer’s right to maintain reasonable trade secrets, the exact method of protection has been considerably disputed.

Under the standard, a trade secret is considered to be defined as in the Re- statement of Torts, that is, something that is not known or used by a competitor. However, OSHA had to revise its definition to conform to a court ruling that said that a trade secret may not include information that is readily discoverable through reverse engineering.

Occupational Safety and Health Act ❖ 43

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Although the trade secret identity may be omitted from the MSDS, the manufacturer must still disclose the health effects and other properties about the chemical. A chemical’s identity must immediately be disclosed to a treating physi- cian or nurse who determines that a medical emergency exists.

In nonemergency situations, any employee can request disclosure of the chemical’s identity if he demonstrates through a written statement a need to know the precise chemical name and signs a confidentiality agreement. The standard specifies all purposes that OSHA considers demonstrate the need to know a spe- cific chemical identity.

The standard initially limited this access to health professionals, but in 1985, the U.S. Court of Appeals for the Third Circuit ruled that trade secrets protec- tions must be narrowed greatly, allowing not only health professionals, but also workers and their designated representatives the same access as long as they fol- low the required procedures.109 In response, OSHA issued a final rule on trade secrets in September 1986110 that narrows the definition of trade secret. It denies protection to chemical identity information that is readily discoverable through reverse engineering. It also permits employees, their collective bargaining repre- sentatives, and occupational nurses access to trade secret information.

Upon request, the employer must either disclose the information or provide written denial to the requester within 30 days. If the request is denied, the mat- ter may be referred to OSHA, whereupon evidence to support the claim of trade secret and alternative information that will satisfy the claim are needed.

15.5 Federal Preemption Controversy

Several states and labor groups have filed suits challenging state laws that are more protective. New Jersey, for example, has enacted the toughest labeling law in the nation, requiring industry to label all its chemical substances, whether they are hazardous or not, and supply the information to community groups and health officials, as well as to workers.

They were also concerned that, because the original OSHA standard only covered the manufacturing sector, more than 50 percent of the workers (such as those workers in the agricultural and construction fields) would be unprotected, and OSHA did not cover (and still does not) such groups as state employees and consumers. Moreover, they argued that OSHA would be incapable of enforcing worker protection because of the staff cuts made by the Reagan administration.

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109 United Steelworkers of America, AFL-CIO-CLC v. Auchter, et al., 763 F.2d 728; 12 OSHC 1337 (3rd Cir., 1985).

110 51 FR 34590.

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The chemical industry, on the other hand, favored a uniform federal regula- tion because they believed it would be less costly and easier to comply with one federal rule as opposed to several state and local rules that would often conflict or be confusing.

In October 1985, the U.S. Court of Appeals for the Third Circuit ruled that the federal Hazard Communication Standard does not preempt all sections of New Jersey’s right-to-know laws designed to protect workers and the public from chemical exposure—only those that apply to groups the agency’s rules covered, which were then only in the manufacturing sector.111 Thus, while some parts of a state law may be preempted, other provisions may not be.

In September 1986, the Third Circuit also found that the federal Hazard Communication Standard did not entirely preempt requirements under Pennsyl- vania’s right-to-know act pertaining to worker protection in the manufacturing industry where the state rules relate to public safety generally and for protection of local government officials with police and fire departments. However, five days later, also in September 1986, the U.S. Court of Appeals for the Sixth Circuit ruled that a right-to-know ordinance enacted by the city of Akron, Ohio, is pre- empted by the federal standard in manufacturing sector workplaces.

In 1992, the Supreme Court came down strongly on the side of preemption. The Gade v. National Solid Waste Management Association case, although it in- volved OSHA’s so-called HAZWOPER regulations112 rather than hazard com- munication, involved a state law requiring additional training for heavy equip- ment operators on hazardous waste sites. The high court found that the OSHA regulations preempted the state despite arguments that the federal rules only set a minimum that the state could exceed—the situation in most environmental laws—and the more transparent claim that the state laws had a dual purpose in protecting the public as well as workers.113

In 1997 a unanimous federal appeals court, relying on Gade, held that the OSHA hazard communication rule preempted California’s famous Proposition 65 requirements (the public must be warned of carcinogens and other harmful substances, including buildings).

16.0 Ergonomics Issues

The ergonomics issue has been one of the few championed by OSHA in recent years. Ironically, when the standard finally emerged, it ran into a buzz saw of

Occupational Safety and Health Act ❖ 45

111 New Jersey State Chamber of Commerce v. Hughey, 774 F.2d 587, 12 OSHC 1589 (3rd Cir., 1985). 112 Hazardous Waste Operations and Emergency Response (HAZWOPER) regulations in 29 C.F.R. §

1910.120. 113 Gade v. National Solid Wastes Management Assoc., 112 S. Ct. 2374 (1992).

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hostility that forced OHA to retreat. Opposition ranged from criticism of it as a defective standard, to the concern that ergonomic issues were highly particu- lar to a given workplace.

16.1 Background

For almost three decades OSHA officials have worked towards developing a stan- dard on ergonomics. The original impetus was a series of reports from Midwest poultry and meatpacking plants that workers were developing “carpal tunnel syn- drome” (CTS). This condition develops from repetitive motion of the hand and wrist, which irritates the nerve running through a bone channel near the thumb. Because similar conditions can develop from repetitive motion or strain in other parts of the body, such as with “tennis elbow,” the malady was relabeled as “cu- mulative trauma syndrome,” also conveniently abbreviated CTS, then changed to “repetitive motion syndrome,” and so on until the more sweeping term “er- gonomics” was adopted.

Along the way, OSHA was hitting offending companies with fines in the mil- lions of dollars, some of the biggest in the agency’s history. All of this had to be done under OSHA’s “general duty clause,” the famous Section 5(a)(1) of the act, because there was no specific standard that addressed this particular condition. With the congressional rejection of OSHA’s Ergonomic Standard, OSHA may again fall back to the general duty clause to deal with clear cases of abuse.

16.2 Scope of the Problem

Ergonomics was not a new word or a new concept. It had long been used in Eu- rope to denote arrangements of workers and tools that maximized productivity with a minimum of wasted effort. This was based on, ironically, the American- developed “time and motion studies” from almost a century ago. The erg in er- gonomics, after all, is from the Greek word meaning “work.” The term also came to be used in furniture and office design with the connotation of comfortable and well laid out.

The workplace collision came when the concept of mass production—with each worker repeating a number of simple steps all day—clashed with the possi- ble physical irritation caused to certain parts of the body. The better companies sought to deal with the problem, though most were concerned with the boredom and carelessness aspects of endless repetition rather than with possible deleterious effects on the body. The remedies, however, tended to be very specific to each worksite or even each job. So how could a general standard be developed?

A very different problem was raised for OSHA. Considering the host of un- regulated chemicals, life-threatening workplace hazards, and a pathetically slow

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agency pace for dealing with them, is this where OSHA should be putting its pri- orities for at least a decade?

Congress did not think so, and for a number of years put a “rider” on OSHA’s appropriation bills that such an omnibus ergonomic standard should not be de- veloped. Due to a congressional slip-up, however, and the confusion in the year right before the 2000 presidential elections, OSHA was able to slide out a proposal in November 2000, due to take effect just days before the new president and Con- gress took office and could do anything about it. Once in effect, it was legally much more difficult to overturn it, except for denying appropriations for enforce- ment, and a closely divided House and Senate had more pressing issues.114

16.3 Scope of the Standard

The new standard that emerged in 2000 was designed to reduce the incidence of musculoskeletal disorders (MSDs) by requiring that companies establish programs to prevent them. In other words, the standard is not prescriptive but procedural.

The standard applied to all general industry workplaces under OSHA but not, for technical legal reasons, to the construction, maritime, agricultural, or most railroad operations. They were eventually supposed to have their own stan- dards once the legal steps were completed. Being subject to the standard, how- ever, does not mean that it automatically applies in its entirety. Some actions have to be taken, and others need to occur only after an action trigger. The trigger was, in Western parlance, a hair-trigger that would go off very easily. Therefore, most workplaces expected to fall under its provision sooner rather than later.

Certain specified initial actions had to be taken by every employer: Every em- ployee had to be given, first, basic information about MSDs, including symptoms and reporting obligations; second, a summary of the requirements of the Act; and third, a written notice in a conspicuous place or by electronic communication.

An action trigger occurs when an employee reports a work-related MSD that rises above a certain threshold, namely when (1) the disorder requires days away from work, restricted work, or medical treatment beyond first aid; or (2) when the symptoms last for more than seven consecutive days. The trigger is then met if the employee’s job “routinely involves, on one or more days a week, exposure to one or more relevant risk factors at the levels described in the Basic Screening Tool in Table W-1.” In making this determination an employer could seek assis- tance from a health care professional (HCP), who plays a key role in implemen- tation of the subsequent program.

Occupational Safety and Health Act ❖ 47

114 OSHA ergonomics program standard final rule, 65 FR 68261 (14 November 2000), taking effect 60 days later.

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17.0 Legislation

The OSH Act has remained virtually untouched since its passage in 1970. With the inauguration of a Democratic president, William Clinton, in 1993 and Dem- ocratic control of both houses of Congress, the expectation was that the labor unions would secure the passage of the first significant revisions in the law.

Under the circumstances, the proposed legislation was surprisingly innocu- ous. It included verbose and often unnecessary sections on enforcement, refusal to work, and other issues. Among them was a seemingly innocuous section pro- viding for labor-management safety committees in the workplace. Both employ- ers and employees have found these committees quite useful, but some manufac- turers’ organizations criticized the language as forcing a much greater role for labor unions.

With the republican election victories in the House and Senate in late 1994, not only did these democratic legislative plans collapse, but the victors prepared their own onslaught on the OSH Act. To the surprise of many, the draconian re- publican plans to curtail or even eliminate OSHA got no further than the previ- ous democratic plans: “Organized labor counted its victories in this year’s Con- gress by the number of bills defeated rather than enacted.”115 However, the Republicans’ hostile scrutiny of OSHA paralyzed the agency leadership and led to a sharp decline in both enforcement and standard setting.

Congressional oversight has been most intense regarding OSHA’s proposed ergonomics standard. As discussed above, Congress used the appropriations process to order the agency not to issue the standard, while the Clinton admin- istration eventually refused to sign the legislation that included these prohibitions on the eve of the 2000 presidential elections. However, legislation was also intro- duced to direct OSHA to encourage safer medical needles, give small businesses more input into agency regulatory proceedings, bar home office inspections, and (signed into law) expand federal compensation for radiation-related exposure.116

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115 “GOP Labor Bills Make Little Headway,” AP, 28 October 1998. 116 In the 106th Congress, H.R. 987, H.R. 4577, and S.1070 restricting OSHA on issuing an ergonomics stan-

dard; H.R. 5178 on needle stick prevention, S. 1156 amending the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; H.R. 4098 barring home office inspections; and S. 1515 signed into law by President Clinton on 10 July 2000 as P.L. 106-245.

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Chapter 2

The Rulemaking Process Margaret S. Lopez Francina M. Segbefia Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Washington, D.C.

1.0 Overview

Congress enacted the Occupational Health and Safety Act (OSH Act) to “assure so far as possible . . . safe and healthful working conditions” for every person em- ployed in the United States.1 In order to facilitate this goal, the OSH Act be- stowed upon the Secretary of Labor the power to issue rules that govern safety and health in the workplace. The Secretary of Labor has delegated to the Occu- pational Health and Safety Administration (OSHA) the authority conveyed to her under the OSH Act to promulgate those safety and health rules.

The OSH Act authorizes the promulgation of two types of rules: (1) occupa- tional health and safety standards and (2) regulations. Occupational safety and health standards are issued pursuant to Section 6 of the Act and prescribe conditions or practices that employers must have in place in order to provide a safe and healthy working environment.2 These are the rules with which employers typically are most concerned, as these are the rules that are intended by OSHA to address the safety and health hazards that may exist in the workplace. These also are the rules that OSHA is charged with enforcing. OSHA standards are grouped into four categories addressing different segments of industry: general industry standards,3 maritime and longshoring standards,4 construction standards,5 and agricultural standards.6

1 29 U.S.C. § 651(b). 2 29 U.S.C. §§ 652(8), 655. 3 29 C.F.R. Part 1910. 4 29 C.F.R. Parts 1915, 1918. 5 29 C.F.R. Part 1926. 6 29 C.F.R. Part 1928.

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Regulations, issued pursuant to Section 8 of the act, effectuate other admin- istrative statutory purposes such as recordkeeping requirements, inspections, and the conduct during administrative proceedings.7

2.0 The Rulemaking Process

The OSH Act authorizes the Secretary of Labor to promulgate standards in three ways. First, under Section 6(a), the Act allowed the Secretary to adopt any then-existing “national consensus standard” or “established Federal standard” for the two years following the effective date of the OSH Act, without follow- ing the notice and comment procedures mandated by the Act and the Admin- istrative Procedure Act (APA).8 The second method of promulgating a stan- dard, and the one most often followed today, is set forth in section 6(b) of the Act which directs the Secretary to promulgate, modify, or revoke safety stan- dards after full notice and comment proceedings as provided for in the APA.9

The third method, prescribed in section 6(c) of the act, allows the Secretary to issue emergency temporary standards when the Secretary determines “(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such dan- ger.”10 This method permits the secretary, in these limited circumstances, to is- sue a standard very quickly by bypassing the usual rulemaking procedures. Af- ter issuing the emergency temporary standard, however, the Secretary must engage in notice and comment rulemaking to issue a permanent standard to re- place it.

2.1 Petitions for Rulemaking

Any person with an interest in having the Secretary promulgate, modify, or re- voke a particular standard may petition the Assistant Secretary of the Occupa- tional Safety and Health Administration to engage in the appropriate rulemak- ing.11 That person must include with the petition a draft of the proposed rule and statement explaining the reason for the promulgation, modification, or revoca- tion and the effect of that action. If OSHA denies the petition, the petitioner may seek review of the denial in federal court.

50 ❖ Occupational Safety and Health Law Handbook

7 29 U.S.C. § 657. 8 29 U.S.C. § 655(a). 9 29 U.S.C. § 655(b). 10 29 U.S.C. § 655(c). 11 29 U.S.C. § 655(b)(1); 29 C.F.R. § 1911.3.

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It must be noted, however, that courts are generally reluctant to require OSHA to promulgate a rule. A case in point is UAW v. Chao,12 in which the In- ternational Union of United Automobile, Aerospace & Agriculture Implement Workers of America (collectively UAW), had petitioned OSHA to promulgate a rule to protect workers from “the health effects of occupational exposure to ma- chining fluids.”13 More than 10 years later, the Assistant Secretary of Labor for OSHA denied the UAW’s petition. The UAW then brought suit in the United States Court of Appeals for the Third Circuit, requesting that the court review the “unreasonable delay” of OSHA in issuing the rule. The Third Circuit held that while there is “little doubt, and it is not disputed here, that exposure to [met- alworking fluids] can have debilitating health effects,” the court would not order OSHA to issue the standard. The court noted that “OSHA never decided to reg- ulate [machine fluids], much less formally initiated rulemaking proceedings with the publication of a proposed rule.”

2.2 NIOSH

In Section 22 of the act, Congress established the National Institute for Occupa- tional Safety and Health (NIOSH) to conduct research and make recommenda- tions to the Secretary of Labor for the prevention of work-related injury and ill- nesses.14 NIOSH is under the Department of Health and Human Services, currently a part of the Centers for Disease Control and Prevention.

NIOSH does not promulgate or enforce standards. Rather, it gathers infor- mation on potential hazards to the health and safety of workers and makes rec- ommendations to OSHA on rulemaking initiatives. The first step in this process involves gathering and analyzing all available information from the scientific lit- erature, which can take anywhere from a year to much longer. The second step typically involves conducting interviews and investigations to gather additional information into the potential hazards under study. NIOSH may conduct its own interviews or it may enlist the help of other organizations to gather this in- formation. The research and investigation process may take anywhere from one to five years or more to complete depending on the complexity of the issue. Once the information from the literature has been gathered and the interviews and in- vestigations are complete, NIOSH will generally prepare a written recommenda- tion to forward to the Secretary of Labor. This process again, may take anywhere from three months to one year or more to complete. As just this brief summary shows, even the initial stages of the rulemaking process conducted by NIOSH can take an enormous amount of time to complete.

The Rulemaking Process ❖ 51

12 UAW v. Chao, 361 F.3d 249 (3rd Cir. 2004). 13 Id. at 250. 14 29 U.S.C. § 671

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2.3 Advisory Committees

The OSH Act provides that the Secretary may seek recommendations from an advisory committee appointed under Section 7 of the Act to assist in the devel- opment of a rule.15 An advisory committee may be a standing committee or an ad hoc committee. A standing committee is a more or less permanent committee formed to address issues that may arise in a particular industry. An ad hoc com- mittee is a temporary committee created for a one-time purpose to research and investigate a specific potential safety or health hazard. Once the ad hoc commit- tee has completed its mission, it is to be disbanded.

2.3.1 NACOSH

One of the standing committees formed to advise OSHA on occupational safety and health rulemaking is the National Advisory Committee on Occupational Safety and Health (NACOSH). This committee is meant to consider and advise OSHA on a broad scope of rulemaking and policy areas under the act. NACOSH consists of 12 members appointed by the Secretary of Health and Human Ser- vices and the Secretary of Labor who are chosen based on their knowledge and experience in specific areas of health and safety.16

2.3.2 FACOSH

Another advisory committee is the Federal Advisory Council on Occupational Safety and Health (FACOSH). FACOSH’s primary purpose is to advise the Sec- retary on matters relating to the health and safety of federal government em- ployees.17

2.3.3 Advisory Committee on Construction Safety and Health

The Advisory Committee on Construction Safety and Health (ACCOSH) ad- vises OSHA on rulemaking relating to the construction industry. This commit- tee was established by Section 107 of the Contract Work Hours and Safety Stan- dards Act. Pursuant to that act and OSHA regulation 29 C.F.R. § 1911.10(a), OSHA is required to consult with ACCOSH in order to promulgate a construc- tion industry standard.

52 ❖ Occupational Safety and Health Law Handbook

15 29 U.S.C. §§ 655(b)(1), 656. 16 See http://www.osha.gov/dop/nacosh/nacosh.html. 17 See http://www.osha.gov/dep/facosh/index.html.

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2.4 Identifying Potential Hazards

To help reduce delays in the rulemaking process, OSHA has implemented a Pri- ority Planning Process, aimed at identifying the top priority workplace safety and health hazards in need of either regulatory or nonregulatory action. The Priority Planning Committee is composed of members from OSHA, NIOSH, the Envi- ronmental Protection Agency (EPA) and others who have workplace safety and health expertise.

The Priority Planning Committee reviews data from major statistical compi- lations of injuries and illnesses, and assesses quantitative and qualitative ap- proaches to make recommendations to OSHA. The criteria used by the commit- tee in deciding whether to implement a new rule include the following:

• Seriousness of the hazard;

• Number of workers exposed/magnitude of the risk;

• Quality of available risk information

• Potential for risk reduction.

• The committee also considers other factors such as:

• Administrative efficiency or feasibility;

• Legal feasibility; and

• Other public policy considerations.

2.5 Request for Information and Advanced Notice of Rulemaking

OSHA may also solicit information from the public in order to obtain informa- tion and determine whether it is necessary to promulgate a new rule. In doing so, OSHA will publish a Request for Information (RFI) or an Advanced Notice of Rulemaking in the Federal Register to solicit comments and information.

2.6 Notice of Proposed Rulemaking (NPRM)

Once the potential safety or health hazard has been identified and researched, OSHA next determines whether to initiate the rulemaking process required un- der Section 6(b) of the Act and the APA. This process involves a number of steps

The Rulemaking Process ❖ 53

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to provide adequate notice to affected persons of the proposed rule and an op- portunity to provide comments to the agency.

The agency will publish in the Federal Register a Notice of Proposed Rule- making that will include the actual provisions of the proposed rule and a pream- ble to the proposed rule, which provides an explanation of the rationale for the rule, including the legal basis for the rule and reasons why the rule is formulated as proposed. The preamble also will typically contain a review of the scientific ba- sis for the rule and a discussion of the expected impact and economic cost of the rule for the regulated community. The preamble also may contain an explanation of how the agency intends to interpret and enforce the rule and a discussion of comments received to date in the rulemaking from the Request for Information or other sources.

Section 6(b)(2) of the OSH Act requires the Secretary to provide a period of at least 30 days for interested persons to submit written comments on the pro- posed rule.18 Often, the Secretary provides a longer comment period. Written comments (and any oral testimony at hearings) are a critical part of the rulemak- ing process, as they are required to be considered by the agency in the promulga- tion of the rule and will become part of the official rulemaking record. Any later legal challenges to the rule will be limited by the courts to the scope of comments that had been submitted to the agency in the rulemaking. Therefore, it is quite important that interested parties submit thorough and well-considered com- ments in order to have any potential for positive impact on the rulemaking and to preserve rights to later challenge any problematic aspects of a rule.

In addition to submitting written comments, interested persons also have the right to request a hearing be held on the rule. The Act requires that 30 days after the comment period has ended, the Secretary is to publish a notice specifying the “the occupational safety or health standard to which objections have been filed and a hearing requested”19 That notice must also specify the date, time, and place of such hearing. Often, however, OSHA sets the hearing dates in the proposed rule.

2.7 Hearings

If objections are made to proposed rulemaking, the OSH Act provides an op- portunity for an oral hearing.20 The legislative history of the OSH Act appears to call for an informal hearing rather than a formal hearing, meaning that it is con- ducted more like a legislative hearing, rather than an adjudicatory hearing, al-

54 ❖ Occupational Safety and Health Law Handbook

18 29 U.S.C. § 655(b)(2). 19 29 U.S.C. § 655(b)(3). 20 29 C.F.R. § 1911.15(a)(2).

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though it is still conducted by a Department of Labor administrative law judge. Indeed, the OSHA regulations specifically state that informal hearings will be conducted.21 The determinations of the Secretary at these hearings are to be up- held so long as the Secretary’s conclusion is supported by substantial evidence in the record as a whole.

OSHA’s regulations state that “fairness may require an opportunity for cross- examination on crucial issues” at the hearing.22 However, extensive cross-exami- nation is not often done. The presiding judge has discretion to either permit or deny cross-examination.23 The regulations state that the goal of cross examination at the hearing is to “provide an opportunity for effective oral presentation by in- terested persons which can be carried out with expedition and in the absence of rigid procedures which might unduly impede or protract the rulemaking process.”24 A transcript of the proceedings is available to an interested party upon request. Upon completion of the oral hearing, the transcript, together with other documents and exhibits contained in the record, are certified by the officer pre- siding at the hearing to the assistant secretary.25 Those participating the hearing are usually also provided an opportunity to submit written comments and post- hearing briefs.

2.8 The Final Rule

Within sixty (60) days after the written notice and comment period has ended (with no hearing) or within 60 days after the certification of the record (if a hear- ing has been held), the final rule is to be published in the Federal Register. Typi- cally, however, the period before promulgation of the final rule is substantially longer than this specified timeframe. If the Secretary decides not to promulgate a rule, the determination that such a rule shall not be issued is also to be pub- lished in the Federal Register.26 If a determination is made that a rule should not be issued, the Secretary may solicit additional data or information from interested persons involved.27 If the Secretary decides that a rule should be promulgated af- ter this additional comment period, the rule is to be issued within 60 days after that comment period ends.28

The Rulemaking Process ❖ 55

21 29 C.F.R. § 1911.15. 22 29 C.F.R. § 1911.15(a)(3). 23 20 C.F.R. § 1911.16(e). 24 Id. 25 29 C.F.R. § 1911.17. 26 29 C.F.R. § 1918(a)(1). 27 29 C.F.R. §1918(a)(2). 28 29 C.F.R. §1918(a)(2).

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Along with the final rule, OSHA is required by the Act to publish a “state- ment of reasons.” Specifically sections 6(e) of the Act provides that whenever the Secretary “promulgates any standard, makes any rule, order, or decision, grants any exemption or extension of time, or compromises, mitigates, or settles any penalty assessed under this Act,” the Secretary “shall include a statement of the reasons for such action, which shall be published in the Federal Register.”29 The statement of reasons serves several functions. First, it is intended to operate as an internal check to ensure that the agency has determined that its action in issuing the rule has not been arbitrary and is founded on documented research and in- formation. It also “makes possible informed public criticism of a decision by making known its underlying rationale; and it facilitates judicial review of agency action by providing an important part of the record of the decision.”30 In Dry Color Mfrs.’ Assoc. v. Department of Labor,31 the court held that to “satisfy sub- section 6(e), the statement of reasons should indicate which data in the record is being principally relied on and why that data suffices to show that the substances covered by the standard are harmful and pose a grave danger of exposure to em- ployees.” The statement of reasons does not necessarily have to include any find- ings of fact, but it must demonstrate the significant issues which have been ad- dressed and articulate the rationale for the rule.32

3.0 Negotiated Rulemaking

In recent years, there has been increasing interested in another model for rule- making called “negotiated rulemaking.” Under negotiated rulemaking, interested parties will work closely with OSHA in the development of a proposed rule in the interest of developing a rule that both OSHA and the affected parties believe appropriately and adequately addresses a safety or health hazard, thus minimiz- ing the potential for later litigation challenging the final rule.

4.0 Other Applicable Statutes Concerning Rulemaking

In addition to the OSH Act and the APA, there are other statutes pertaining to rulemaking that apply to OSHA’s rulemaking efforts. The Paperwork Reduction Act (PRA) is meant to reduce the burden of complying with federal statutes man- dating recordkeeping and reporting and ensure that federal regulations limit re- quired information collection to that which is truly necessary. Under the PRA,

56 ❖ Occupational Safety and Health Law Handbook

29 29 U.S.C.655(e). 30 Dry Color Mfrs.’ Assoc. v. Department of Labor, 486 F.2d 98, 105 (3rd Cir. 1973).. 31 Id. at 105. 32 29 C.F.R. § 1911.18(b).

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OSHA, like other federal rulemaking agencies, is required to review the paper- work burden for all proposed rules and to provide a rationale for the information that will be collected under the rule. The PRA also requires agencies to prepare an Information Collection Request (ICR) for each existing rule requiring collec- tion of information for approval to the Office of Management and Budget (OMB). Generally an ICR must be resubmitted to OMB every three years.

The Regulatory Flexibility Act (RFA), amended by the Small Business Regu- latory Enforcement Fairness Act (SBREFA), is intended to address the particular needs of small businesses to not be overwhelmed by costly and burdensome fed- eral regulations. The RFA requires agencies conducting rulemaking to evaluate the impact the proposed rule will have on small businesses. If the agency determines that the rule will have a significant economic impact on a substantial number of small businesses, the agency is required to publish with the proposed rule a Regu- latory Impact Analysis (RIA). Affected entities then will have an opportunity to submit comments on the RIA and the impact of the proposed rule on their busi- nesses for the agency’s consideration on further rulemaking. With the final rule, the agency will be required to publish a final RIA addressing the comments re- ceived and explaining the agency’s determination as to the economic impact of the rule on small businesses. SBREFA provides for judicial review of the agency’s de- termination. It also requires a proposed rule affecting small businesses to undergo review by a Small Business Advocacy Review Panel to be established by the Small Business Administration. The review panel will consist of members from OSHA, the OMB, and a number of small business representatives. The panel will then re- view the applicable parts of the rulemaking record and will submit a report to OSHA, to which OSHA must respond in the rulemaking.

5.0 Delays in Rulemaking

The rulemaking process is often long and cumbersome. It is not uncommon for the period of time between the gathering of information and the publication of the Notice of Proposed Rulemaking to the publication of a Final Rule to span a period of many years. The APA directs an agency “to conclude [within a reason- able time] a matter presented to it.”33 The APA also creates a cause of action by which an aggrieved party may compel agency action, that is, promulgation of a rule, and empowers reviewing courts to compel agency action. Reviewing courts are to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”34

The Rulemaking Process ❖ 57

33 5 U.S.C. § 555(b). 34 5 U.S.C. § 706(2).

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In Public Citizen Health Research Group v. Chao,35 the Public Citizen Health Research Group (PCHRG) petitioned the Third Circuit Court of Appeals to re- view the inaction of OSHA in promulgating a rule that would lower the permis- sible exposure limit for hexavalent chromium. Hexavalent chromium is a com- pound used for chrome plating, stainless steel welding, alloy production, and wood preservation.36 NIOSH had for decades recommended that OSHA adopt a standard to minimize worker exposure to hexavalent chromium which is classi- fied as a known carcinogen.

In 1993, PCHRG petitioned OSHA to issue an emergency temporary stan- dard to limit worker exposure to this compound. OSHA declined to issue an emergency standard but announced that it was initiating the rulemaking process to develop a rule that would limit worker exposure to this compound. OSHA es- timated that the Notice of Proposed Rulemaking would be published in the Fed- eral Register no later than March 1995. OSHA then delayed the issuance of the proposed standard to May 1995, and then again to December 1995. This pattern of delay continued—-the November 1995 agenda pushed the date to July 1996, then to June 1997 and again to September 1997.

In 1997, PCHRG petitioned the Third Circuit for review of OSHA’s inaction alleging unreasonable delay. At that time, the Third Circuit denied PCHRG’s pe- tition stating that PCHRG did not “demonstrate that inaction is . . . unduly trans- gressive of the agency’s own tentative deadlines.”37 However, OSHA’s pattern of delay continued.

On December 3, 2001, OSHA issued a rulemaking agenda, which stated that the hexavalent chromium rulemaking was denominated a “long-term ac- tion,” and the timetable for the proposed rule was “to be determined.”38 PCHRG again petitioned the court arguing that “deference to an agency’s priorities and timetables only goes so far . . . at some point, a court must tell an agency that enough is enough.” The Third Circuit did just that.

In holding that OSHA’s inaction and continuous delays were unreasonable, the court noted that “OSHA has missed all ten of its self-imposed deadlines, in- cluding the September 1999 target it offered to this Court in Oil Workers. Far from drawing closer to a rulemaking, all evidence suggests that ground is being lost.”39 The court quoted the D.C. Circuit Court of Appeals in stating that “where the Secretary deems a problem significant enough to warrant initiation of

58 ❖ Occupational Safety and Health Law Handbook

35 314 F.3d 143 (3rd Cir. 2002). 36 Id. at 146. 37 Oil, Chem., & Atomic Workers Union v. OSHA, 145 F.3d 120, 123 (3rd Cir. 1998). 38 Id. at 149. 39 Id. at 151.

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the standard setting process, the Act requires that he have a plan to shepard through the development of the standard . . . to ensure that the standard is not inadvertently lost.”40 The court granted PCHRG’s petition and ordered OSHA to begin the rulemaking process. It further ordered the parties to submit to me- diation to work towards a “realistic timetable” to promulgate a rule. That timetable would be enforced by the court.41

6.0 Emergency Temporary Standards

Section 6(c) of the OSH Act provides that the Secretary may issue an emergency temporary standard if the Secretary determines “(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.”42 The emergency temporary standard is effective as soon as it is published in the Federal Register and stays in effect until it is replaced by a standard promulgated according to the informal rulemaking procedures set out in Section 6(b) of the act. The published emer- gency temporary standard serves as the proposed rule for the promulgation of the final rule. The OSH Act goes on to state that a final standard promulgated ac- cording to the rulemaking requirements in Section 6(b) of the Act shall be prom- ulgated no later than six months after publication of the emergency temporary standard.43

OSHA rarely resorts to promulgation of emergency temporary standards. This is in part due to the fact that many emergency temporary standards have been successfully challenged in court. Additionally, the final rule must be prom- ulgated within six months after an emergency temporary standard is issued, a nearly impossible task given the long time OSHA typically takes to promulgate a final rule.

7.0 Variances

Under certain conditions, variances may be available for employers that are un- able to comply with an OSHA standard. To obtain a variance, the employer

The Rulemaking Process ❖ 59

40 Id. at 157. 41 See also United Steelworkers of America v. Pendergrass, 819 F.2d 1263 (3rd Cir. 1987); In re International

Chemical Workers Union, 958 F.2d 1144 (D.C. Cir. 1992); Public Citizen Health Research Group v. Brock, 823 F.2d 626 (D.C. Cir. 1987); Public Citizen Health Research Group v. Auchter, 702 F.2d 1150 (D.C. Cir. 1983); Oil, Chemical & Atomic Workers International Union v. Zegeer, 768 F.2d 1480 (D.C. Cir. 1985).

42 29 U.S.C. 655(c). 43 29 U.S.C. 655(b)(6)(c).

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must submit an application to OSHA requesting either a temporary variance if the employer can prove by a preponderance of the evidence that it is currently unable to comply with the standard but will be able to do so in the future, or for a permanent variance if the employer can demonstrate that there are no fea- sible means to comply with the standard and that the employer has another method or program in place to protect its workers from the hazard covered by the standard.

7.1 Temporary Variance

Section 6(b)(6)(A) of the OSH Act permits an employer to apply to the Secretary for a temporary order granting a variance from an OSHA standard or regulation where the employer can establish that it is “unable to comply with a standard by its effective date because of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the standard or because necessary construction or alteration of facilities cannot be completed by the effective date.44 The employer must also demonstrate that it is taking all possible precautions to safeguard their employees from any potential health or safety hazard covered by the standard. In addition, the employer must demon- strate that it has developed a plan for coming into compliance with the standard at a future date.

A temporary variance is only granted to an employer after notice to the em- ployees and an opportunity for hearing and comment. The temporary standard expires after the time needed by the employer to come into compliance with the standard or within one year, whichever period is shorter. An employer may apply for an extension but that extension cannot be granted more than twice. The ap- plication for extension must be filed at least 90 days prior to the expiration of the order.

The application for a temporary order must contain the following informa- tion:

1. A specification of the standard or portion thereof from which the em- ployer seeks a variance;

2. a representation from the employer that it is unable to comply with the standard and detailed explanation of the reasons;

3. steps that the employer has taken or will take (with specific dates) to pro- tect employees against the hazard covered by the standard;

60 ❖ Occupational Safety and Health Law Handbook

44 29 U.S.C. 655(b)(6)A).

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4. a statement of when the employer expects to come into compliance with the standard and what steps the employer has taken or will take along with specific dates to come into compliance; and

5. a certification that the employer has notified its employees of the applica- tion by giving a copy of the statement to the employees’ authorized rep- resentative or posting the statement in a place where it is available for viewing by all employees.

7.2 Permanent Variance

Under section 6(d) of the OSH Act, an employer may request a permanent vari- ance from an OSHA standard. The OSH Act requires that when an employer ap- plies for a permanent variance, all employees must be notified and given the op- portunity to participate in a public hearing.45 The Secretary will only issue such a variance if it is determined that the employer has demonstrated by a prepon- derance of the evidence that “the conditions, practices, means, methods, opera- tions, or processes used or proposed to be used by an employer will provide em- ployment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard.”46 The order for a permanent variance may be revoked upon application by the em- ployer, employees, or by the Secretary on her own motion after six months from issuance. Very few permanent variances have ever been issued by OSHA.

7.3 Interim Order

An employer may also request an interim order which will be effective until the decision on a variance is made.47 The employer may include in its application for an interim order a statement of facts and reasons why the order should be granted. OSHA may rule ex parte on a request for an interim order. If the order is granted, it is published in the Federal Register and the employer must give no- tice to its employees of the order in the same manner that notice of the applica- tion for the variance was made.

8.0 State Law Standards/Jurisdiction

Prior to the enactment of the OSH Act, many states had already adopted their own occupational safety and health standards. What happens when both a state standard and a federal standard regulate the same area?

The Rulemaking Process ❖ 61

45 29 U.S.C. § 655(d). 46 Id. 47 29 C.F.R. § 1905.11(c)(1).

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The OSH Act permits a state to regulate an occupational safety or health is- sue that is not governed by any standard, regulation, or rule under the OSH Act.48 Even if a state regulation or standard governs the same issue or area that is governed by the OSH Act, the state standard may not necessarily be preempted by the OSH Act. As long as the state standard does not impose any lesser obliga- tion required under the OSH Act, the state standard may be permitted to stand. To do so, the state must submit a plan for the development of such standards and for its enforcement.49

An example of a recent issue regarding whether the OSH Act preempts a state standard involves state bans on public smoking. In Empire State Rest. & Tav- ern Assn. v. New York,50 New York State enacted the Clean Indoor Air Act,51

which prohibits smoking in various public establishments including bars and food service establishments. A number of owners of New York state taverns and bars brought suit to permanently enjoin the state of New York from enforcing the law, arguing that the Clean Indoor Air Act was preempted by the OSH Act, and more specifically that 20 C.F.R. 1910.1000, which adopts standards relating to permissible safe exposure levels for employees exposed to “toxic and hazardous substances,” preempted state legislation of occupational tobacco smoke. The court held that the OSH Act did not preempt New York’s Clean Indoor Air Act because OSHA had made clear in various written statements that it declined to regulate environmental tobacco smoke. The court further stated that “many state and local governments already began to address this problem by curtailing smok- ing in public places and workplaces . . . [t]hus, formal OSHA policy indicates not only the compatibility of state and local smoking legislation and the OSH Act and regulations, but also the acknowledgement and approval of OSHA with such state and local action.”52

8.1 State Plans

Section 18(b) of the OSH Act provides that: “Any State, which at any time, de- sires to assume responsibility for development and enforcement therein of an oc- cupational safety and health issue with respect to which a Federal standard has been promulgated under section 6 shall submit a State plan for development of such standards and their enforcement.”53

62 ❖ Occupational Safety and Health Law Handbook

48 29 U.S.C § 667. 49 Id. 50 Empire State Rest. & Tavern Assn. v. New York, 360 F. Supp. 2d 454, 460 (D.N.Y. 2005). 51 NYC Administrative Code § 17-501. 52 Empire State Rest. & Tavern Assn. v. New York, 360 F. Supp. 2d 454, 459 (D.N.Y. 2005). 53 29 U.S.C. § 667(b).

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To be approved, the state plan must demonstrate the following:

1. The plan will designate or create a state agency that will administer and enforce the plan;

2. The plan provides for the development of safety and health standards that are at least as effective in providing a safe and healthy workplace as is promulgated under the OSH Act;

3. The plan provides for a right of entry and inspection of workplaces, with- out advance notice, which is at least as effective as the procedures under the OSH Act;

4. The plan assures that it has or will have the legal authority and qualified personnel to ensure that the standards are properly and effectively en- forced;

5. The plan provides adequate assurance that the state will have adequate funds and resources to maintain the plan;

6. The plan provides adequate assurance that there will be a plan in place for the development and enforcement of safety and health standards for state government employees that is at least as effective as the standards con- tained in the approved state plan;

7. The plan requires employers in the state to prepare the same reports to the Secretary of Labor as if the state plan were not in effect, and

8. The plan provides that the state agency will make such reports to the Sec- retary of Labor in such a form and manner as the Secretary may require.

The proposed state plans are then submitted to an OSHA regional office before being sent to the OSHA national office. A copy of the plan is also sent to NIOSH for review and comment. There is also an opportunity for hearing and comment before the Secretary approves or disapproves of a state plan. If a plan is approved, the state plan will be considered in the “developmental” state for the first three years. When the three year period is complete, OSHA will publish a formal no- tice of certification in the Federal Register. If OSHA intends to reject a plan, the state is afforded due notice and an opportunity for a hearing before doing so.54

OSHA will then reconsider the plan, taking into account the remarks during the comment and hearing process.

The Rulemaking Process ❖ 63

54 29 U.S.C. § 667(d).

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9.0 Judicial Review

Any person who is adversely affected by a standard issued pursuant to the OSH Act may seek review at any time prior to the 60th day after such a standard is promulgated in the United States Court of Appeals for the circuit in which such person resides or has her principal place of business.55 If the challenge to the stan- dard is based on the failure of OSHA to adhere to a procedural requirement, the issue must be raised in pre-enforcement proceedings within 60 days before the regulation becomes effective.56 In pre-enforcement proceedings, OSHA will have an affirmative burden to demonstrate the reasonableness of the standard based on “substantial evidence in the record considered as a whole.”57 The burden is also on OSHA to demonstrate by substantial evidence that the standard is feasible, al- though OSHA does not have the burden of proving feasibility with scientific cer- tainty.58 If enforcement proceedings have already commenced, the standard is presumed to be valid and the burden of proof is on the petitioning employer.

64 ❖ Occupational Safety and Health Law Handbook

55 29 U.S.C. § 655(6)(f ). The petition must be filed by the 59th day after promulgation. 56 National Industries Constructors, Inc. v. Occupational Safety & Review Com., 583 F.2d 1048 (8th Cir. 1978). 57 Id. 58 AFL-CIO v. OSHA, 965 F.2d 962 (11th Cir. 1992).

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Chapter 3

The Duty to Comply with Standards Arthur G. Sapper, Esq. McDermott Will & Emery LLP Washington, D.C.

1.0 Overview

Section 5(a)(2) of the Occupational Safety and Health (OSH) Act, 29 U.S.C. § 654(a)(2), states that “each employer . . . shall comply with occupational safety and health standards promulgated under this Act.” Other sections of the Act im- pose an implicit duty to comply with the Occupational Health and Safety Ad- ministration’s (OSHA) regulations.1 Although the duty to comply with standards and regulations seems unqualified, the courts and the Occupational Safety and Health Review Commission (OSHRC or Commission) have held that the duty is qualified in various ways.

2.0 Applicability of OSHA Standards

2.1 The General Principle of Preemption

The OSHA standards themselves state a general principle—the more specific stan- dard prevails over the more general.2 For this reason, decisions speak of the defense of preemption—that is, a citation will be vacated if the cited condition is regulated by a more specifically applicable standard.3 While many factors are relevant to

1 Section 9(a), 29 U.S.C. § 658(a) (permitting citation to be issued for violation of regulation); Sections 17(a)–(c) and (e), 666(a)–(c) and (e) (permitting civil and criminal penalties to be imposed for violating regulations).

2 29 C.F.R. § 1910.5(c). 3 For example,McNally Constr. & Tunneling Co., 16 BNA OSHC 1886 (Rev. Comm’n 1994), aff ’d and ap-

proved, 71 F.3d 208, 17 BNA OSHC 1412 (6th Cir. 1995).

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such an inquiry,4 the basic question is whether application of the more generally applicable standard would defeat a rulemaking decision implicit in the more specifically applicable standard.5

In accordance with this principle, an employer must first determine whether his industry is specially regulated by one of the several industry-specific “parts” in Title 29 of the Code of Federal Regulations (C.F.R.). These industry-specific parts are Part 1913, which applies to shipyards; Part 1917, which applies to ma- rine terminals; Part 1918, which applies to longshoring; Part 1926, which applies to construction; and Part 1928, which applies to agriculture.

If no industry-specific part applies, then an employer must look to Part 1910, which is entitled “General Industry Standards” and which applies to all employers engaged in businesses affecting commerce. The employer must then determine whether a special, industry-specific section within Subpart R of Part 1910 or an industry-specific subpart within Part 1910 regulates both his indus- try and the particular condition cited. For example, § 1910.261, the first section in Subpart R, regulates the paper industry, while Subpart T of Part 1910 covers commercial diving. If no industry-specific standard in Subpart R of Part 1910 applies, then the employer is regulated by the many generally applicable sub-parts in Part 1910. For example, Subpart O regulates the guarding of machinery gen- erally.

The preemption principle—that is, the principle that the specific standard prevails over the general standard—applies even to standards within an industry- specific part (for example, within Part 1926, the construction part). Thus, the general provisions in Part 1926 governing the use of nonsparking electrical equip- ment in flammable gas concentrations were held to have been preempted by the specific provisions on the use of such equipment in flammable gas concentrations in tunnels under construction.6

2.2 Special Applicability Problems

May a standard in Part 1910 be applied to work regulated by an industry-specific part (e.g., construction work)? It has been held that, if there is no applicable con-

66 ❖ Occupational Safety and Health Law Handbook

4 See Trinity Industries, Inc., 20 BNA OSHC 1051, 1057 (Rev. Comm’n 2003) (“Where a standard provides meaningful protection to employees beyond the protection afforded by another standard, there is no pre- emption”), aff ’d without published opinion, 20 BNA OSHC 1873 (5th Cir. July 23, 2004) (No. 03-60511); Bratton Corp., 14 BNA OSHC 1893 (Rev. Comm’n 1990) (steel erection standards do not preempt general fall protection standards) (acceding to view of several circuits); New England Telephone & Telegraph Co., 8 BNA OSHC 1478 (Rev. Comm’n 1980).

5 Lowe Constr. Co., 13 BNA OSHC 2182 (Rev. Comm’n 1989). 6 McNally Constr. & Tunneling Co., 16 BNA OSHC 1886 (Rev. Comm’n 1994), aff ’d and approved, 71 F.3d

208, 17 BNA OSHC 1412 (6th Cir. 1995).

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struction standard in Part 1926, OSHA may cite an employer for a violation of a Part 1910 standard.7 In addition, some Part 1910 standards expressly state that they apply to construction work.8

Nevertheless, some Part 1910 standards do not apply to construction work. Some expressly state they do not so apply,9 and the preamble to at least one other set of standards states that those standards were not intended to so apply.10 In at least one case, OSHA has refrained from applying a standard to construction work because its proposed version did not give that industry notice and oppor- tunity to comment on its applicability.11

3.0 General Principles of the Duty to Comply

Although OSHA must show that a condition violative of a standard existed, OSHA need not always show that the cited employer himself violated the stan- dard, that is, that the cited employer created the violative condition.12

Unless a standard explicitly or implicitly incorporates hazardousness as an element of a violation, OSHA need not show that a failure to comply with a standard creates a hazard.13 Whether a hazard exists depends on whether there is a “significant risk,” which in turn depends on the severity and probability of harm.14

3.1 The Exposure Rule

With respect to many standards,15 employers must comply only if there is, or rea- sonably predictably will be, exposure of employees to the violative condition.

The Duty to Comply with Standards ❖ 67

7 Western Waterproofing Inc., 7 BNA OSHC 1499, 1501-02 (Rev. Comm’n 1979). 8 For example, § 1910.134 (introductory provision). 9 For example, § 1910.147(a)(1)(ii)(A) (lockout standard). 10 For example, the electrical standards in Subpart S of Part 1910. See 46 Fed. Reg. 4034, 4039 (“the electrical

standards of Part 1910 do not apply to construction activities”). 11 Thus, OSHA has stated that the Bloodborne Pathogens Standard, § 1910.1030, does not apply to con-

struction work because the construction industry did not receive public notice of, and an advisory com- mittee was not consulted about, such an application when the standard was proposed. Letter from Secre- tary of Labor Lynn Martin to Robert Georgine, “Construction Activities and Operations and the Bloodborne Pathogens Standard” (Dec. 23, 1992), at http://www.osha.gov/pls/oshaweb/owadisp.show_ document?p_table=INTERPRETATIONS&p_id=20968>.

12 See § 3.2 of this chapter. 13 Kaspar Electroplating Corp., 16 BNA OSHC 1517 (Rev. Comm’n 1993); Bunge Corp. v. Secretary of Labor,

638 F.2d 831, 834 (5th Cir. 1981). 14 Weirton Steel Corp., 20 BNA OSHC 1255, 1259 (Rev. Comm’n 2003). 15 See text accompanying note 25 below.

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This principle is reflected in the allocation to OSHA of the burden of proving ei- ther of the following:

1. Employees are or were in the zone of danger created by a violative condi- tion; or

2. It is reasonably predictable that employees, by “operational necessity” or otherwise (including inadvertence) in the course of their work or associ- ated activities (e.g., going to rest rooms) will be in the zone of danger cre- ated by the cited condition.16

The term “zone of danger” refers to “that area surrounding the violative condition that presents the danger to employees which the standard is intended to prevent.”17

The Commission adopted this “reasonably predictable exposure” test after the courts rejected or suggested disapproval of the Commission’s early require- ment that OSHA prove actual exposure—that is, that an employee had actually been endangered by a violation.18 Nevertheless, the mere possibility of exposure is insufficient.19 That the employer is expected in the future to create a violative condition, but has not yet done so, is insufficient.20 On the other hand, exposure of just a single employee is sufficient to trigger the employer’s duty and to satisfy OSHA’s burden of proof.21

OSHA need not show that a compliance officer personally witnessed facts supporting an exposure finding.22 Nor need OSHA show that an employee is, for example, teetering on the edge of an unguarded floor.23 Brevity of exposure is immaterial.24 For some standards and regulations—particularly those requir-

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16 Fabricated Metal Prods., 18 BNA OSHC 1072, 1074 (Rev. Comm’n 1997) (surveying cases); Gilles & Cot- ting, Inc., 3 BNA OSHC 2002 (Rev. Comm’n 1976).

17 RGM Constr. Co., 17 BNA OSHC 1229, 1234 (Rev. Comm’n 1995). 18 Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1263-66, 2 BNA OSHC 1243 (4th Cir. 1974) (remand-

ing for reconsideration of actual exposure test); Brennan v. OSHRC (Underhill Construction Corp.), 513 F.2d 1032, 2 BNA OSHC 1641 (2nd Cir. 1975) (rejecting actual exposure test). See also Adams Steel Erec., Inc., 766 F.2d 804, 812, 12 BNA OSHC 1393, 1398 (3rd Cir. 1985) (same).

19 Fabricated Metal Prods., 18 BNA OSHC 1072, 1074 & n.8 (Rev. Comm’n 1997) (rejecting “physically pos- sible” test); Rockwell Intl. Corp., 9 BNA OSHC 1092 (Rev. Comm’n 1980).

20 Sharon Steel Corp., 12 BNA OSHC 1539 (Rev. Comm’n 1985). 21 For example, Mineral Industries v. OSHRC, 639 F.2d 1289, 1294-95, 9 BNA OSHC 1387 (5th Cir. 1981). 22 For example, Brennan v. OSHRC (Underhill Construction Corp.), 513 F.2d 1032, 1038, 2 BNA OSHC 1641

(2d Cir. 1975); see North Berry Concrete Corp., 13 BNA OSHC 2055, 2055-56 (Rev. Comm’n 1989). 23 For example, Underhill Construction, 513 F.2d at 1038. 24 For example, Morgan & Culpepper, Inc. v. OSHRC, 676 F.2d 1065, 1069, 10 BNA OSHC 1629, 1632 (5th

Cir. 1982) (short duration of exposure no defense); Brock v. L.R. Wilson & Sons, 773 F.2d 1377, 1386, 12 BNA OSHC 1499 (D.C. Cir. 1985); Walker Towing Corp., 14 BNA OSHC 2072, 2074 (Rev. Comm’n 1991); Frank Swidzinski Co., 9 BNA OSHC 1230, 1232 (Rev. Comm’n 1981); see Flint Engineering & Con- struction Co., 15 BNA OSHC 2052, 2056 (Rev. Comm’n 1992).

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ing recordkeeping (e.g., an injury log)—no showing of exposure need be made.25

3.2 To Whose Employee Does the Duty Run?

This question was most vexing in the early years of the Act and, in some respects, the answer is only somewhat clearer today. The question first arose on multi- employer worksites, such as construction sites, where employees of Employer A (usually, a subcontractor) may be exposed to a violative condition created or con- trolled by Employer B (usually, the general contractor or another subcontractor). In its early days, the Review Commission followed a simple rule: The employer of the employees exposed to a violative condition (Employer A) could be cited, regardless of whether the condition had been created by another employer (Em- ployer B) and regardless of whether abatement of the condition was controlled by that employer.26 Moreover, only the employer of the exposed employee (Employer A) could be cited;27 the employer who created or controlled the violative condi- tion (Employer B) could not be cited unless one of his own employees was ex- posed to it as well. Complicating the matter was that Employer A may lack the expertise to recognize that the condition is violative or even hazardous.

Subcontractors complained that this policy was highly unfair to them, and they and OSHA complained that it allowed the most guilty to escape liability. Eventually, beginning with a decision by the Second Circuit,28 the rules of liabil- ity changed in two ways: A new, expanded liability rule was developed (see § 3.2.1 below); and a new series of affirmative defenses was established (see § 3.2.2 below). OSHA has issued a directive to its enforcement personnel attempting to explain these rules in detail.29

3.2.1 The Multi-Employer Worksite Liability Rules

Although OSHA may satisfy its burden of proving exposure by proving an em- ployment relationship between the exposed employees and the cited employer (i.e., showing that the exposed employees are those of the cited employer),30 this

The Duty to Comply with Standards ❖ 69

25 Thermal Reduction Corp, 12 BNA OSHC 1264, 1268 (Rev. Comm’n 1985). 26 R.H. Bishop Co., 1 BNA OSHC 1767, 1769 (Rev. Comm’n 1974). 27 Martin Iron Works, Inc., 2 BNA OSHC 1063 (Rev. Comm’n 1974). See also Hawkins Constr. Co., 1 BNA

OSHC 1761 (Rev. Comm’n 1974); Gilles & Cotting, Inc., 1 BNA OSHC 1388 (Rev. Comm’n 1973), af- f ’d in relevant part, 504 F.2d 1255 (4th Cir. 1974).

28 Brennan v. OSHRC (Underhill Construction Corp.), 513 F.2d 1032, 2 BNA OSHC 1641 (2d Cir. 1975). 29 CPL 2-0.124, “Multi-Employer Citation Policy” (Dec. 10, 1999), at http://www.osha.gov/pls/oshaweb/

owadisp.show_document?p_table=DIRECTIVES&p_id=2024. 30 For example,Van Buren-Madawaska Corp., 13 BNA OSHC 2157 (Rev. Comm’n 1989); MLB Industries,

Inc., 12 BNA OSHC 1525, 1528 (Rev. Comm’n 1985).

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is not necessary unless a standard or regulation provides otherwise.31 OSHA may instead—again, unless a standard or regulation provides otherwise—show expo- sure of an employee of some other employer and that the cited employer con- trolled or created the violative condition.32 The current general statutory princi- ple on which multi-employer liability is based is that “an employer who either creates or controls the cited hazard has a duty . . . to protect not only its own em- ployees, but those of other employers ‘engaged in the common undertaking.’”33

An allegedly controlling or creating employer is not liable if its employees are not present on the construction site and engaged in the construction work.34

3.2.1.1 General Construction Contractors

Hence, unless a standard or regulation provides otherwise, OSHA may cite gen- eral contractors for violations to which employees of subcontractors are exposed or which subcontractors created.35 The general contractor is deemed to “have sufficient control over its subcontractors to require them to comply with the safety standards and to abate violations.”36 General contractors must take what- ever measures are “commensurate with its degree of supervisory capacity,”37

which includes some oversight over the work of subcontractors.38 Hence, a gen- eral contractor was expected to detect a problem with a ground fault circuit in- terrupter installed by a subcontractor even though the condition was by nature latent and hidden from view.39 On the other hand, a general contractor is re- sponsible for only those violations that “it could reasonably be expected to pre- vent or detect.”40

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31 See the discussion of Summit Contractors, Inc., 21 BNA OSHC 2020 (Rev. Comm’n, 2007), pet. for review filed, No. 07-2191 (8th Cir., May 15, 2007), in § 3.2.1.2 below.

32 See notes 33–41 below. 33 McDevitt Street Bovis, Inc., 19 BNA OSHC 1108 (Rev. Comm’n 2000). 34 United States v. MYR Group, Inc., 361 F.3d 364, 20 BNA OSHC 1614 (7th Cir. 2004); cf. Reich v. Simp-

son, Gumpertz & Heger, Inc., 3 F.3d 1, 16 BNA OSHC 1313 (1st Cir. 1993) (same holding based on 29 C.F.R. § 1910.12).

35 For example, Huber, Hunt & Nichols, Inc., 4 BNA OSHC 1406, 1407-08 (Rev. Comm’n 1976). 36 Gil Haugan d/b/a Haugan Construction Co., 7 BNA OSHC 2004, 2006 (Rev. Comm’n 1979); see also Lewis

& Lambert Metal Contract, Inc., 12 BNA OSHC 1026, 1030 (Rev. Comm’n 1984). 37 Marshall v. Knutson, 566 F.2d 596 (8th Cir. 1977). 38 McDevitt Street Bovis, Inc., 19 BNA OSHC 1108 (Rev. Comm’n 2000); Centex-Rooney Construction Co., 16

BNA OSHC 2127 (Rev. Comm’n 1994). 39 Blount International Ltd., 15 BNA OSHC 1897, 1899–1900 (Rev. Comm’n 1992). But see Knutson Con-

struction Co., 4 BNA OSHC 1759, 1761 (Rev. Comm’n 1976), aff ’d 566 F.2d 596 (8th Cir. 1977) (gen- eral contractor not liable for failing to detect a one-inch crack on the underside of a scaffolding platform; unreasonable to expect general contractor to detect such a crack).

40 David Weekley Homes, 19 BNA OSHC 1116, 1119 (Rev. Comm’n 2000); Centex-Rooney Constr. Co., 16 BNA OSHC 2127, 2130 (Rev. Comm’n 1994); Blount Intl. Ltd., 15 BNA OSHC 1897, 1899 (Rev. Com- m’n 1992).

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As noted in the next section, however, the Commission held in 2007 that an OSHA regulation does not permit such extra-employment liability to be imposed on an employer engaged in construction work on the mere ground that he is a “controlling employer.”

3.2.1.2 Legal Status of the Multi-Employer Liability Rules

Several courts have, to one degree or another, held that the wording of the OSH Act permitted this extra-employment liability to be imposed in the construction context.41 The Fifth Circuit disagreed with the idea of extra-employment liabil- ity in a maritime industry case, holding that such liability was foreclosed by the statute and by an OSHA regulation governing maritime work.42 The D.C. Cir- cuit has twice reserved ruling on whether the imposition of extra-employment li- ability in the construction context is inconsistent with 29 C.F.R. § 1910.12, which regulates the application of the construction standards in Part 1926.43

That provision requires a construction employer to protect “his employees” (em- phasis added) by complying with the construction standards. The Occupational Safety and Health Review Commission held in 2007, however, that § 1910.12(a) foreclosed controlling-employer liability in construction work.44

3.2.1.3 Nonconstruction Applications of the Multi-Employer Liability Rules

Outside the construction industry, OSHA has occasionally attempted to hold boat owners45 and factory owners46 liable for violations committed by their independent

The Duty to Comply with Standards ❖ 71

41 Universal Construction Corp., 182 F.3d 726, 728-31, 18 BNA OSHC 1769 (10th Cir. 1999); United States v. Pitt-Des Moines, Inc., 168 F.3d 976, 18 BNA OSHC 1609 (7th Cir. 1999); R.P. Carbone Constr. Co. v. OSHRC, 166 F.3d 815, 18 BNA OSHC 1551 (6th Cir. 1998); Beatty Equip. Leasing, Inc. v. Secretary of La- bor, 577 F.2d 534, 6 BNA OSHC 1699 (9th Cir. 1978); Marshall v. Knutson Constr. Co., 566 F.2d 596, 6 BNA OSHC 1077 (8th Cir. 1977); Brennan v. OSHRC (Underhill Construction Corp.), 513 F.2d 1032, 1038, 2 BNA OSHC 1641 (2d Cir. 1975).

42 Melerine v. Avondale Shipyards, Inc., 659 F.2d 706, 10 BNA OSHC 1075 (5th Cir. 1981). 43 IBP, Inc. v. Herman, 144 F.3d 861, 865 and n.3, 18 BNA OSHC 1353 (D.C. Cir. 1998); Anthony Crane

Rental, Inc. v. Reich, 70 F.3d 1298, 1306-07, 17 BNA OSHC 1447 (D.C. Cir. 1995) (noting “tension” be- tween wording of § 1910.12 and liability doctrine).

44 Summit Contractors, Inc., 21 BNA OSHC 2020 (Rev. Comm’n, 2007), pet. for review filed, No. 07-2191 (8th Cir., May 15, 2007). The same issue had been litigated in the courts of several states with OSHA-ap- proved state plans, with mixed results. Compare Davenport v. Summit Contractors, Inc., 45 Va. App. 526, 612 S.E.2d 239, 21 BNA OSHC 1392 (Va. App. 2005) (rejecting liability), rev. denied, 21 BNA OSHC 1184 (Va. 2005), with Commissioner of Labor v. Weekley Homes, L.P., 609 S.E.2d 407, 21 BNA OSHC 1049 (N.C. App. 2005) (imposing liability), rev. denied, 21 BNA OSHC 1184 (N.C. 2005).

45 Harvey Workover, Inc., 7 BNA OSHC 1687, 1689 (Rev. Comm’n 1979); Camden Drilling Co., 6 BNA OSHC 1560, 1561 (Rev. Comm’n 1978) (barge owner responsible for compelling subcontractor to have its employees stop using their own defective fan and either repair it or remove it).

46 For example, IBP, Inc. v. Herman, 144 F.3d 861, 18 BNA OSHC 1353 (D.C. Cir. 1998), rev’g 17 BNA OSHC 2073 (Rev. Comm’n 1997).

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contractors and to which only the contractors’ employees are exposed. In a recent attempt, the D.C. Circuit held that a factory owner is not liable for a contractor’s lockout violation that affected only its own employees when it had no authority over the contractor’s employees and its only “control” stemmed from its ownership of the property or its contract with the contractor.47 See the additional discussion of this point in § 5.3.2 of chapter 11.

3.2.2 Multi-Employer Worksite Defense Rules

As noted above, the liability rule followed in the early days of the Act was that ex- posure of one’s own employee to a violative condition meant that one was liable, even if the cited employer did not create or control the violative condition. This rule has been partially reversed by the creation of a series of affirmative defenses by the Commission,48 which has been accepted by several courts of appeals.49 To- day, a citation will be vacated if the cited employer on a multiemployer worksite

a. Did not create or control the allegedly violative condition (such that he could not realistically correct the condition); and

b. Either

1. Took reasonable alternative protective measures; or

2. Did not know, nor with the exercise of reasonable diligence, could have known of the hazardousness of the cited condition.50

Element (a) may be established by, for example, showing that the employer was prevented from abating a hazardous working condition due to union juris- dictional rules.51

Although these defenses originally arose in the context of construction sites, where there are frequently a number of different employers working at the same time, the Commission later applied them to all multi-employer worksites.52

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47 IBP, Inc. v. Herman, 144 F.3d 861, 18 BNA OSHC 1353 (D.C. Cir. 1998), rev’g 17 BNA OSHC 2073 (Rev. Comm’n 1997).

48 See generally Anning-Johnson Co., 4 BNA OSHC 1193 (Rev. Comm’n 1976); Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185 (Rev. Comm’n 1976).

49 Dun-Par Engineered Form Co. v. Marshall, 676 F.2d 1333, 10 BNA OSHC 1561 (10th Cir. 1982); Electric Smith, Inc. v. Secretary of Labor, 666 F.2d 1267, 10 BNA OSHC 1329 (9th Cir. 1982); DeTrae Enterprises, Inc. v. Secretary of Labor, 645 F.2d 103, 9 BNA OSHC 1425 (2d Cir. 1980); Bratton Corp. v. OSHRC, 590 F.2d 273, 7 BNA OSHC 1004 (8th Cir. 1979).

50 For example, LeeRoy Westbrook Construction Co., 13 BNA OSHC 2101, 2103 (Rev. Comm’n 1989); Lewis & Lambert Metal Contractors, 12 BNA OSHC 1026 (Rev. Comm’n 1984).

51 See McLean-Behm Steel Erectors, Inc., 6 BNA OSHC 1712, 1715 (Rev. Comm’n 1978). 52 Rockwell International Corp., 17 BNA OSHC 1801 n. 11 (Rev. Comm’n 1996).

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4.0 Actual or Constructive Knowledge

OSHA must prove that the cited employer actually knew, or could have known with the exercise of reasonable diligence, of the physical circumstances that com- prise the violative condition.53 This element must also be proved in General Duty Clause cases.54 The element pertains to the physical circumstances that comprise the violative condition, not the violativeness or hazardousness of the condition.55

An employer is not reasonably diligent if he neither makes an attempt to be- come aware of the physical conditions facing his employees, nor trains his em- ployees to recognize hazards arising from them.56 Reasonable diligence includes “the obligation to inspect the work area, to anticipate hazards to which employ- ees may be exposed, and to take measures to prevent the occurrence.”57 A cita- tion will be vacated on this ground if an employer reasonably relies on the ex- pertise of the independent contractor who created the condition to which his employees were exposed.58

In general, if a compliance officer can see a physical condition during a nor- mal inspection, it will be inferred that the employer could, with reasonable dili- gence, have seen it too.59 However, OSHA must show that the cited condition was present for a sufficient amount of time such that, with the exercise of rea- sonable diligence, the employer could have discovered its existence.60

5.0 Additional Elements That OSHA Must Sometimes Prove

Sometimes a standard is so vague that it deprives employers of fair notice of its re- quirements, contrary to the Due Process Clause of the Fifth Amendment to the Constitution.61 To cure this vagueness, OSHA may be required to prove additional

The Duty to Comply with Standards ❖ 73

53 For example, Ragnar Benson, Inc., 18 BNA OSHC 1937, 1939 (Rev. Comm’n 1999); Continental Electric Co., 13 BNA OSHC 2153, 2154 (Rev. Comm’n 1989); Prestressed Systems, Inc., 9 BNA OSHC 1864, 1870 (Rev. Comm’n 1981).

54 See U.S. Steel Corp., 12 BNA OSHC 1692, 1699 (Rev. Comm’n 1986). 55 Ormet Corp., 14 BNA OSHC 2134, 2138 (Rev. Comm’n 1991); Southwestern Acoustics & Specialty, Inc., 5

BNA OSHC 1091 (Rev. Comm’n 1977) (employer need be shown only to have had knowledge of “physi- cal conditions which constitute a violation,” not that condition was prohibited by law).

56 Beaver Plant Operations, Inc., 18 BNA OSHC 1972, 1976 (Rev. Comm’n 1999). 57 Frank Swidzinski Co., 9 BNA OSHC 1230, 1233 (Rev. Comm’n 1981). 58 For example, Sasser Elec. & Mfg. Co., 11 BNA OSHC 2133 (Rev. Comm’n 1984), aff ’d, 12 BNA OSHC

1445 (4th Cir. 1985) (not officially published). 59 See Green Construction Co., 4 BNA OSHC 1808, 1810 (Rev. Comm’n 1976) (Barnako, Chairman, con-

curring). 60 David Weekley Homes, 19 BNA OSHC 1116, 1120-21 (Rev. Comm’n 2000). 61 For example, Kropp Forge Co. v. Secretary of Labor, 657 F.2d 119, 9 BNA OSHC 2133 (7th Cir. 1981);

Georgia Pacific Corp. v. OSHRC, 25 F.3d 399, 16 BNA OSHC 1895 (11th Cir. 1994) (standard vague as interpreted by OSHA). See generally § 6.4.1 below.

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elements. For example, in Granite City Terminals Corp.,62 the Commission held that, if a standard is vague, OSHA must prove that a reasonable person would have recognized a hazard warranting protective measures, and that the sought measures are feasible. A showing that a “reasonable person” would have recognized the haz- ardousness63 or violativeness of the cited condition has been required, and held or implied to be sufficient, in a number of circuits and by the Commission; they have not expressly required, or have suggested to be unnecessary, a showing that the em- ployer or its industry follow the practice that OSHA seeks to impose.64 At least for the generally worded personal protection standards at 29 C.F.R. 1910.132(a) and 1926.28(a), however, the Fifth Circuit has determined that the employer’s own conduct or “industry custom and practice will generally establish the conduct of the reasonably prudent employer.”65

6.0 The Employer’s Substantive Affirmative Defenses

This section discusses defenses that an employer may raise to a citation. The bur- den of pleading and proving these defenses is on the employer. Additional dis- cussion of some of these defenses is in § 5.3.2 of chapter 11.

6.1 Infeasibility

The Commission has created a limited affirmative defense for the employer who finds that compliance is infeasible. A citation may be vacated if the employer proves that

1. [The Infeasibility Element:] the means of compliance prescribed by the applicable standard would have been infeasible under the cir- cumstances in that either (a) its implementation would have been technologically or economically infeasible or (b) necessary work op- erations would have been technologically or economically infeasible after its implementation; and

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62 12 BNA OSHC 1741 (Rev. Comm’n 1986). 63 Weirton Steel Corp., 20 BNA OSHC 1255, 1264 (Rev. Comm’n 2003). 64 For example, Voegele Company, Inc. v. OSHRC, 625 F.2d 1075, 1078, 8 BNA OSHC 1631 (3rd Cir. 1980);

American Airlines, Inc. v. Secretary of Labor, 578 F.2d 38, 41, 6 BNA OSHC 1691, 1692–1693 (2d Cir. 1978); Ray Evers Welding Co. v. OSHRC, 625 F.2d 726, 731-32, 8 BNA OSHC 1271 (6th Cir. 1980); Bris- tol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717, 722-23, 7 BNA OSHC 1462 (4th Cir. 1979).

65 Cotter & Co. v. OSHRC, 598 F.2d 911, 913, 7 BNA OSHC 1510 (5th Cir. 1979); S & H Riggers & Erec- tors, Inc. v. OSHRC, 659 F.2d 1273, 1285, 10 BNA OSHC 1057 (5th Cir. 1981); Owens-Corning Fiberglas Corp. v. Donovan, 659 F.2d 1285, 1288, 10 BNA OSHC 1070 (5th Cir. 1981); B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364, 1370, 6 BNA OSHC 2067 (5th Cir. 1978); Power Plant Div., Brown & Root, Inc. v. OSHRC, 590 F.2d 1363, 1365, 7 BNA OSHC 1137 (5th Cir. 1979).

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2. [The Alternative Measures Element:] either (a) an alternative method of protection was used or (b) there was no feasible alternative means of protection.”66

Element two effectively compels an employer to show that, although strict compliance was necessary, he took whatever steps were feasible. See § 6.1.2 be- low for more detail on this point. An employer need not show that a variance ap- plication was inappropriate,67 which is an element of the defense of greater haz- ard. See § 6.2 below.

6.1.1 The Infeasibility Element of the Defense

In the early days of the act, this defense was known as “impossibility.”68 In 1986, in Dun-Par Engineered Form,69 the Commission changed the name of the defense and its first element to “infeasibility” in part because “[s]trict application of an ‘impossibility’ defense does not accommodate considerations of reasonableness or common sense, or reflect the strong sense of the practical implicit in the stan- dards adopted under § 6(a)” and the feasibility element in § 6(b)(5) of the act.70

The defense has often proved difficult to establish. An employer must at least attempt to adapt existing technology and use some creativity to solve the infeasi- bility problem.71 An inability to comply because the appropriate equipment was not onsite is insufficient, for “it is the duty of an employer to use equipment that permits him to comply with the Secretary’s standard.”72 The defense may also be rejected if it was feasible to preclude employee access to the zone of danger.73

Courts that have considered the infeasibility defense have concluded that it encompasses both technological and economic factors.74 At one time, the

The Duty to Comply with Standards ❖ 75

66 Beaver Plant Operations, Inc., 18 BNA OSHC 1972, 1977 (Rev. Comm’n 1999), citing Gregory & Cook, Inc., 17 BNA OSHC 1189, 1190 (Rev. Comm’n 1995); Seibel Modern Manufacturing & Welding Corp., 15 BNA OSHC 1219, 1228 (Rev. Comm’n 1991); Mosser Constr. Co., 15 BNA OSHC 1408, 1416 (Rev. Comm’n 1991); Dun-Par Engineered Form Co., 12 BNA OSHC 1949 (Rev. Comm’n 1986), rev’d on an- other ground, 843 F.2d 1135, 13 BNA OSHC 1652 (8th Cir. 1988).

67 Dun-Par Engineered Form, 12 BNA OSHC at 1956. 68 For example, M.J. Lee Construction Co., 7 BNA OSHC 1140, 1144 (Rev. Comm’n 1979). 69 12 BNA OSHC at 1953–1956. 70 12 BNA OSHC at 1955. 71 See Pitt-Des Moines Inc., 16 BNA OSHC 1429, 1433–1434 (Rev. Comm’n 1993); Gregory & Cook Inc, 17

BNA OSHC 1189, 1191 (Rev. Comm’n 1995) (employer should attempt to acquire more suitable guard; commission “expect[s] employers to exercise some creativity in seeking to achieve compliance”).

72 Williams Enterprises Inc., 13 BNA OSHC 1249 (Rev. Comm’n 1987). 73 Walker Towing Corp., 14 BNA OSHC 2072, 2075–2076 (Rev. Comm’n 1991). 74 Quality Stamping Products v. OSHRC, 709 F.2d 1093, 1099, 11 BNA OSHC 1550 (6th Cir. 1983) (em-

ployer must show not “economically practicable” because “prohibitively expensive”); Donovan v. Williams

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Commission took the position that the economic effect of compliance was irrel- evant.75 However, in State Sheet Metal Co.,76 the Commission stated that “evi- dence as to the unreasonable economic impact of compliance with a standard may be relevant to the infeasibility defense.”77 In Peterson Bros. Steel Erec. Co.,78

the Commission stated that it would look to the effect that compliance would have on the company’s “financial position as a whole” to determine whether the company would be “adversely affected.” It is not sufficient that an employer who has failed to use safety measures would be at a competitive disadvantage with oth- ers that did not use the measures, for an “employer cannot be excused from com- pliance with the Act on the basis that everyone else will ignore the law.”79

6.1.2 The Alternative Measures Element of the Infeasibility Defense

This element—which also appears in the greater hazard and multi-employer defenses—reflects the view that, even if full compliance is not feasible, “an employer [must] comply to the extent feasible.”80 “[B]efore an employer will be excused from ignoring a standard’s requirements and leaving its employees unprotected, it must show that it has explored all possible alternate forms of protection.”81 At one time, the Commission in Dun-Par Engineered Form82 shifted the burden of persuasion on

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Enterprises, Inc., 744 F.2d 170, 178, 11 BNA OSHC 2241 (D.C. Cir. 1984); Faultless Div., Bliss & Laugh- lin Indus. v. Secretary, 674 F.2d 1177, 1189, 10 BNA OSHC 1481 (7th Cir. 1982); Southern Colo. Prestress Co. v. OSHRC, 586 F.2d 1342, 1351, 6 BNA OSHC 2032 (10th Cir. 1978); Atlantic & Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 4 BNA OSHC 1061 (3rd Cir. 1976)

75 See, for example, Stan-Best, Inc., 11 BNA OSHC 1222, 1231 (Rev. Comm’n 1983); Research Cottrell, Inc., 9 BNA OSHC 1489, 1498 (Rev. Comm’n 1981).

76 16 BNA OSHC 1155 (Rev. Comm’n 1993). 77 In State Sheet Metal, the Commission stated that in Dun Par Engd. Form Co., 12 BNA OSHC 1962, 1966

(Rev. Comm’n 1986), it first implied that an infeasibility defense may include economic factors. There, it found that the employer had not demonstrated that the costs were unreasonable in light of the protection afforded and had not shown what effect, if any, the added costs would have on its contract or on its busi- ness as a whole. See also Walker Towing Corp., 14 BNA OSHC 2072, 2077 (Rev. Comm’n 1991).

78 16 BNA OSHC 1196, 1203 (Rev. Comm’n 1993), aff ’d, 26 F.3d 573 (5th Cir.1994). 79 Gregory & Cook, Inc., 17 BNA OSHC 1189, 1192 (Rev. Comm’n 1995). Accord, Peterson Bros. Steel Erec-

tion Co. v. Secretary of Labor, 26 F.3d 573, 16 BNA OSHC 1900 (5th Cir. 1994) (employer’s claim that it would be disadvantaged as against competitors that did not comply is not relevant because “an employer cannot be excused from non-compliance on the assumption that everyone else will ignore the law”). See also Peterson Bros., 16 BNA OSHC 1196, 1203 (Rev. Comm’n 1993) (evidence that costs, while substantial, could be absorbed on the project negated the employer’s claim of economic infeasibility); State Sheet Metal, 16 BNA OSHC 1155, 1159, 1160–1161 (Rev. Comm’n 1993).

80 Donley’s Inc., 17 BNA OSHC 1227 (Rev. Comm’n 1995). But see Spancrete Northeast Inc. v. OSHRC, 905 F.2d 589, 14 BNA OSHC 1585 (2d Cir. 1990), which suggests that the defense does not have a second el- ement. The court held that if compliance with the cited standard is infeasible, the Secretary must plead in the alternative and prove a failure to comply with another standard.

81 State Sheet Metal Co., 16 BNA OSHC 1155 (Rev. Comm’n 1993). 82 12 BNA OSHC at 1956–1959.

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The Duty to Comply with Standards ❖ 77

this element to OSHA, but the Eighth Circuit held otherwise,83 and the Commis- sion later followed that holding.84

6.2 The Greater Hazard Defense

The Commission has also held that employers need not strictly comply with a standard to the extent that compliance would create greater hazards than non- compliance would. It created an affirmative defense based on the idea that “in- dustry is so diverse that any rule is bound to be counterproductive now and again.”85 The defense has three elements:

1. Compliance with the standard would create greater hazards than non- compliance;

2. Alternative protective measures were taken or were not available; and

3. A variance application is inappropriate.86

The defense does not apply to the General Duty Clause because the useful- ness of a proposed abatement method is part of the Secretary’s burden in General Duty Clause cases.87

The first element of the defense requires a showing that compliance would create greater hazards than noncompliance—not new or different hazards.88 It also requires a showing that all alternative ways of protection are more dangerous than noncompliance, not just the means of protection mentioned in the stan- dard.89

The reason for the third element of the defense—the inappropriateness of a variance—is that “some employers will believe incorrectly that their working conditions are safer than those prescribed in the standards. . . . [R]emoving this

83 Brock v. Dun-Par Engineered Form Co., 843 F.2d 1135 (8th Cir. 1988), rev’g 12 BNA OSHC 1949 (Rev. Comm’n 1986).

84 Seibel, 15 BNA OSHC at 1227–1228. 85 Caterpillar Inc. v. Herman, 131 F.3d 666, 18 BNA OSHC 1104 (7th Cir. 1997). 86 Russ Kaller Inc., 4 BNA OSHC 1758 (Rev. Comm’n 1976). See also PBR, Inc. v. Secretary of Labor and

OSHRC, 643 F.2d 890, 9 BNA OSHC 1357 (1st Cir. 1981); John H. Quinlan, 17 BNA OSHC 1194 (Rev. Comm’n 1995).

87 Royal Logging Co., 7 BNA OSHC 1744, 1751 (Rev. Comm’n 1979), aff ’d, 645 F.2d 822, 9 BNA OSHC 1755 (9th Cir. 1981).

88 See Dun-Par, 12 BNA OSHC at 1967; Williams Enterprises Inc., 13 BNA OSHC 1249 (Rev. Comm’n 1987).

89 John H. Quinlan, 17 BNA OSHC 1194 (Rev. Comm’n 1995).

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incentive to seek variances [by eliminating the element] . . . would be allowing an employer to take chances not only with his money, but with the lives and limbs of his employees.”90 The third element does not apply to regulations be- cause a variance cannot be sought from a regulation.91

6.3 Unpreventable Employee Misconduct

This defense has been stated in various ways, but it basically requires an employer to show that he required his employees to take protective measures that comply with the standard and that he enforced that requirement.92 The Commission has distilled its decisions as requiring four elements of proof:

1. The employer has established work rules designed to prevent the viola- tion;

2. It has adequately communicated those rules to its employees;

3. It has taken steps to discover violations; and

4. It has effectively enforced the rules when violations have been discov- ered.93

Effective enforcement generally must be progressive, that is, it must become increasingly severe as an employee commits additional infractions. Thus, an em- ployer was held to have failed to establish the defense when an employer who broke a safety rule for the second time was given only an oral warning instead of a written reprimand.94

Although there is a similar doctrine of supervisory misconduct,95 some cases characterize it as not an affirmative defense but as a rebuttal of the imputation to

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90 General Electric Co. v. Secretary, 576 F.2d 558, 561, 6 BNA OSHC 1541 (3d Cir. 1978) (emphasis in the original). See also Reich v. Trinity Industries, Inc., 16 F.3d 1149, 1154, 16 BNA OSHC 1670 (11th Cir. 1994); Modern Drop Forge Co. v. Secretary of Labor, 683 F.2d 1105, 1116, 10 BNA OSHC 1852 (7th Cir. 1982); Dole v. Williams Enterprises, Inc., 876 F.2d 186, 190 n.7, 14 BNA OSHC 1001 (D.C. Cir. 1989).

91 Caterpillar Inc. v. Herman, 131 F.3d 666, 18 BNA OSHC 1104, 1106 (7th Cir. 1997). 92 For example, Secretary of Labor v. L.E. Myers Co., 818 F.2d 1270, 13 BNA OSHC 1289 (6th Cir.), cert. de-

nied, 484 U.S. 989 (1987); Texland Drilling Corp., 9 BNA OSHC 1023 (Rev. Comm’n 1980). 93 For example, Capform, Inc., 16 BNA OSHC 2040, 2043 (Rev. Comm’n 1994). 94 For example, Gem Industrial, Inc., 17 BNA OSHC 1861 (Rev. Comm’n 1996), and particularly note 8 of

the lead opinion and note 12 of the dissenting opinion there. See generally Arthur G. Sapper, “The Oft- Missed Step: Documentation of Safety Discipline,” Occupational Hazards (January 2006).

95 Daniel Construction Co., 10 BNA OSHC 1549, 1552 (Rev. Comm’n 1982).

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the employer of the supervisor’s knowledge.96 The Commission has stated that involvement by a supervisor in a violation is “strong evidence that the employer’s safety program was lax.”97 “Where a supervisory employee is involved, the proof of unpreventable employee misconduct is more rigorous and the defense is more difficult to establish since it is the supervisor’s duty to protect the safety of em- ployees under his supervision.”98

The objection has been made that the overlap of this defense with the knowl- edge element of OSHA’s case is confusing, for OSHA must prove knowledge while the employer must prove the defense.99

6.4 Invalidity of the Standard

6.4.1 Violation of Statutory Procedural Requirements

A standard is invalid if it was not adopted in accordance with a statutory proce- dural requirement. See generally chapter 2. Two examples of invalidity resulting from violations of such requirements are

1. Making a substantive change in a national consensus or established federal standard adopted under § 6(a) of the OSH Act, 29 U.S.C. § 655(a).100

This is a special case of failing to give the public notice or an opportunity for comment on the adoption or amendment of a standard.101

2. Failing to consult the Advisory Committee on Construction Safety and Health before proposing a standard regulating construction work.102

6.4.2 Violation of Constitutional Requirement of Fair Notice of Standard’s Requirements

The Due Process Clause of the Fifth Amendment to the U.S. Constitution requires that persons subject to penalties be given fair notice of the law’s

The Duty to Comply with Standards ❖ 79

96 For example, Consolidated Freightways Corp., 15 BNA OSHC 1317, 1321 (Rev. Comm’n 1991). 97 Daniel Construction, 10 BNA OSHC at 1552. 98 Seyforth Roofing Co., 16 BNA OSHC 2031 (Rev. Comm’n 1994). 99 See, e.g., New York State Gas & Elec. v. Secretary of Labor, 88 F.3d 98, 17 BNA OSHC 1650, 1655-1657 (2d

Cir. 1996) (reviewing confusing state of law and criticizing Commission for inconsistency); L.E. Myers v. Brock, 484 U.S. 989 (1987) (White, J., dissenting from denial of certiorari) (“confusing patchwork of con- flicting approaches”).

100 E.g., Usery v. Kennecott Copper Corp., 577 F.2d 1113, 6 BNA OSHC 1197 (10th Cir. 1977). 101 See 5 U.S.C. § 553(b); OSH Act § 6(b)(2); 29 U.S.C. § 655(b)(2); Kooritzky v. Reich, 17 F.3d 1509 (D.C.

Cir. 1994) (non-OSHA case). 102 National Constructors Ass’n v. Marshall, 581 F.2d 960, 970-71, 6 BNA OSHC 1721 (D.C. Cir. 1978).

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requirements.103 Hence, OSHA standards may not be construed or applied in a way that deprives employers of fair notice of their requirements.104 This re- quirement can also be violated when an OSHA interpretation letter available on the Internet is inconsistent with the interpretation implicit in a citation,105

or when a course of conduct by OSHA induces confusion in the mind of an employer as to the requirements of a standard.106 To avoid a violation of this requirement, several OSHA standards have been construed narrowly.107

6.5 De Minimis

Section 9(a) of the OSH Act, 29 U.S.C. § 658(a), states: “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.” The consequence of characterizing a violation as de minimis is that the violation carries neither an abatement requirement nor a monetary penalty.108

The Commission has long asserted that it may characterize a violation as de min- imis.109 There is a split in the circuits as to whether the Commission has this au- thority. The First, Third, Fifth, and Ninth Circuits have held that it does,110 while the Seventh Circuit disagrees.111

As to what a de minimis violation is, the Commission has formulated the test in various ways, including asking whether the violation is “trifling.”112 In another case, it stated: “A de minimis violation is one in which there is technical non- compliance with a standard but the departure from the standard bears such a neg-

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103 E.g., Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1328 (D.C. Cir. 1995) (non-OSHA case). 104 Beaver Plant Operations, Inc. v. Herman, 223 F.3d 25, 19 BNA OSHC 1053 (1st Cir. 2000) (“The burden

is on the Secretary to establish that [the employer] had actual or constructive notice” of the standard’s re- quirement); Diebold, Inc. v. Marshall, 585 F.2d 1327, 6 BNA OSHC 2002 (6th Cir. 1978). See also the cases cited in note 61 above.

105 Oberdorfer Indus. Inc., 20 BNA OSHC 1321, 1329 (Rev. Comm’n 2003). 106 Latite Roofing & Sheet Metal Co., 21 BNA OSHC 1282 (Rev. Comm’n 2005); Trinity Marine Nashville Inc.

v. OSHRC, 275 F.3d 423, 430-31, 19 BNA OSHC 1673, 1676-77 (5th Cir. 2001). 107 See the cases cited in note 62-65 above. 108 For example, Keco Indus., Inc., 11 BNA OSHC 1832, 1834 (Rev. Comm’n 1984). 109 For example, General Electric Co., 3 BNA OSHC 1031, 1040 (Rev. Comm’n 1975). 110 Donovan v. Daniel Constr. Co., 692 F.2d 818, 10 BNA OSHC 2188 (1st Cir. 1982); Secretary of Labor v.

OSHRC (Erie Coke Corp.), 998 F.2d 134, 16 BNA OSHC 1241 (3d Cir. 1993); Phoenix Roofing, Inc. v. Dole, 874 F.2d 1027, 14 BNA OSHC 1036 (5th Cir. 1989); Chao v. Symms Fruit Ranch, Inc., 242 F.3d 894, 19 BNA OSHC 1337 (9th Cir. 2001).

111 Caterpillar Inc. v. Herman, 131 F.3d 666, 18 BNA OSHC 1104 (5th Cir. 1989). 112 El Paso Crane & Rigging Co., 16 BNA OSHC 1419, 1429 (Rev. Comm’n 1993) (failure to attest and sign

OSHA injury log “trifling”).

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ligible relationship to employee safety and health as to render inappropriate the assessment of a penalty or the entry of an abatement order.”113 One circuit has held that a violation is de minimis if the employer’s safety measures are as safe as those required by a standard.114 The Commission has in effect held that the em- ployer bears the burden of proof on the de minimis issue.115

The Duty to Comply with Standards ❖ 81

113 Keco Indus., Inc., 11 BNA OSHC 1832, 1834 (Rev. Comm’n 1984). 114 Phoenix Roofing, Inc. v. Dole, 874 F.2d 1027, 14 BNA OSHC 1036 (5th Cir. 1989). 115 See Holly Springs Brick & Tile Co., 16 BNA OSHC 1856 (Rev. Comm’n 1994) (rejecting de minimis argu-

ment for lack of evidence).

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Chapter 4

The General Duty Clause William K. Doran, Esq. Katie A. Duggin, Esq. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Washington, D.C.

1.0 Overview

Section 5 of the Occupational Safety and Health Act (OSH Act), commonly re- ferred to as the “General Duty Clause,” was designed by Congress to be “an en- forcement tool of last resort.”1 It places nonspecific, broad safety requirements on employers when more specific standards or regulations are not applicable. The general duty clause, as it pertains to employers, states that:

(a) Each employer—

(1) shall furnish to each of his employees 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 employees2

In recent years the General Duty Clause has been utilized as a sometimes con- troversial mechanism for enforcement of safety guidelines that have not yet been specifically addressed by statute or regulation. The most notable example of this was the Occupational Safety and Health Review Commission’s (Review Commis- sion, OSHRC) application of the general duty clause to ergonomic hazards in the Pepperidge Farm case.3 Similarly, the clause is relied upon by the Occupational Safety and Health Administration (OSHA) to address issues such as bloodborne

1 Reich v. Arcadian Corp., 110 F.3d 1192, 1199, corrected sub nom. Metzler v. Arcadian Corp., No. 96-60126, 1997 U.S. App. LEXIS 12693, at *20 (5th Cir. April 28, 1997).

2 29 U.S.C. § 654(a). 3 Pepperidge Farm, Inc., 17 OSH Cas. (BNA) 1993 (OSHRC 1997).

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pathogen hazards in industries not covered by the general industry regulation at 29 C.F.R. § 1910.1030 and reactive chemical process safety.4

As noted above, the general duty clause is not applicable “if a standard specif- ically addresses the hazard cited.”5 This specificity can extend to the type of in- dustry for which the standard was promulgated.6 As noted in the legislative his- tory of the general duty clause: “The general duty clause in this bill would not be a general substitute for reliance on standards, but would simply enable the Sec- retary to insure the protection of employees who are working under special cir- cumstances for which no standard has yet been adopted.”7

The courts and the Review Commission have precisely laid out the Secretary of Labor’s (Secretary) burden of proof under the general duty clause. In order to demonstrate a violation, the Secretary must show that:

(1) a workplace condition presented a hazard, (2) the employer or its in- dustry recognized the hazard, (3) the hazard was likely to cause serious physical harm, and (4) there was a feasible and useful means of abate- ment that would eliminate or materially reduce the hazard.8

These criteria were originally set down in 1973 by the D.C. Circuit in Na- tional Realty.9 In National Realty, a case involving the workplace death of an em-

84 ❖ Occupational Safety and Health Law Handbook

4 See OSHA Directive CPL 02-02-069, Enforcement Procedures for the Occupational Exposure to Bloodborne Pathogens, at Section XIII(A)(3)(e) (November 27, 2001) (“The General Duty Clause should not be used to cite for violations of the bloodborne pathogens rule, but may be used to cite for failure to provide a work- place free from exposure to bloodborne pathogens.”); Assistant Secretary John L. Henshaw, speech to the Center for Chemical Process Safety 18th International Conference, (September 23, 2003) (“OSHA’s strat- egy for reactives includes an enforcement component. We expect to rely on the general duty clause to ad- dress reactive hazards not covered by the PSM standards”); see also OSHA Interpretation Letter, OSHA Pol- icy on Indoor Air Quality: Office Temperature / Humidity and Environmental Tobacco Smoke (February 24, 2003) (hereinafter, “Feb. 24, 2003 OSHA Interpretation Letter”) (“As a matter of prosecutorial discretion, OSHA will not apply the General Duty Clause to [environmental tobacco smoke].”).

5 Active Oil Service, Inc., 21 OSH Cas. (BNA) 1184, 1185 (OSHRC 2005) (citing New York State Elec. & Gas Corp., 17 OSH Cas. [BNA] 1129 [OSHRC 1995], aff ’d in pertinent part, 88 F.3d 98 [2d Cir. 1996]; Ted Wilkerson, Inc., 9 OSH Cas. [BNA] 2012 [OSHRC 1981]; Sun Shipbuilding & Drydock Co., 1 OSH Cas. [BNA] 1381 [OSHRC 1973]). See National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1261 n.9 (D.C. Cir. 1973) (“Specific, promulgated standards preempt the general duty clause, but only with respect to hazards expressly covered by the specific standards.”); Cf Sun Shipbuilding, 1 OSH Cas. (BNA) 1381–1382 (“Citing a respondent under the general duty requirement of the Act is not appropriate where there exists a specific occupational safety and health standard covering the conduct at issue”).

6 Active Oil Service, 21 OSH Cas. (BNA) at 1186 (general industry confined space standard does not pre- empt 5(a)(1) application to construction confined space hazard).

7 S. Rep. No. 91-1282, at 10 (1970). 8 Active Oil Service, 21 OSH Cas. (BNA) at 1186 (citing Kokosing Constr. Co., 17 OSH Cas. [BNA] 1869,

1872 [OSHRC 1996]). 9 National Realty, 489 F.2d at 1265; see also Pelron Corp., 12 OSH Cas. (BNA) 1833, 1835 (OSHRC 1986);

Brennan v. OSHRC, 502 F.2d 946, 952 (3d Cir. 1974) (“Thus the [National Realty]court interpreted the general duty clause, as a matter of law, as imposing the duty of adopting demonstrably feasible measures for materially reducing the likelihood of a particular employee misconduct.”).

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ployee riding on the running board of a loader, the D.C. Circuit reversed a de- cision of the Review Commission that a company had committed a “serious vi- olation” of the general duty clause. The appellate court held that Congress did not intend for the general duty clause to impose strict liability on employers. In- stead, the court held that the employer is obligated only to protect its employees from “preventable hazards.” The court found that a specific instance of equip- ment riding does not qualify as “recognized” or “preventable” under the general duty clause.

Although the general duty clause is cited against employers for workplace hazards, the Act does not absolve employees of all responsibility. In fact, Section 105(b), 29 U.S.C. § 654(b), places a duty upon employees to “comply with oc- cupational safety and health standards and all rules, regulations and orders issued pursuant to this Act which are applicable to his own actions and conduct.”

This employee responsibility to “comply” with all safety and health stan- dards and rules is significant, but it does not release the employer from its obli- gations to provide a safe workplace.10 The legislative history of the Act specifi- cally states that “final responsibility for compliance with the requirements of this act remains with the employer.”11 The Review Commission has reinforced this proposition.12

However, in demonstrating the elements of a general duty clause violation, “the Secretary must define the alleged recognized hazard in a manner that gives the employer fair notice of its obligations under the Act by specifying conditions or practices which are within the employer’s control.”13 For instance, in a fatal ac- cident case in which an employee was struck by an unloaded truck that was back- ing up, OSHA issued the following general duty clause citation:

Section 5(a)(1) of the Occupational Safety and Health Act of 1970: The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause

The General Duty Clause ❖ 85

10 Brennan v. Butler Lime & Cement Co., 520 F.2d 1011 (7th Cir. 1975) (“If an employee is negligent or cre- ates a violation of a safety standard, that does not necessarily prevent the employer from being held re- sponsible for the violation. True, an employer is not an insurer under the Act. But an employer is responsi- ble if it knew or, with the exercise of reasonable diligence, should have known of the existence of a serious violation.”) (citations omitted), appeal after remand, 658 F.2d 544 (7th Cir. 1981).

11 S. Rep. No. 91-1282, at 9. 12 See Pride Oil Well Service, 15 OSH Cas. (BNA) 1809, 1815 (OSHRC 1992) (“The Act places final re-

sponsibility for compliance with its requirements on the employer. An employer who has failed to address a hazard by implementing and enforcing an effective work rule cannot shift to its employees the responsi- bility for assuring safe working procedures.”) (citation omitted).

13 Beverly Enterprises, Inc., 19 OSH Cas. (BNA) 1161, 1168 (OSHRC 2000) (citing Inland Steel Co., 12 OSH Cas. [BNA] 1968, 1970 [OSHRC 1986]; Pelron Corp., 12 OSH Cas. [BNA] at 1835).

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death or serious physical harm to employees in that employees were ex- posed to a struck by and run over by a winch truck hazard:

At the rig site, the employee(s) toolpusher was exposed to a struck by hazard from a winch truck which was not equipped with a reverse audi- ble warning device.

* * *

Some feasible and acceptable means of abatement, among others, are:

a. Install reverse audible warning devices (back-up alarms) on all winch trucks (vehicles) which are operated in reverse.

b. Have the [flagman] guide the trucks traveling in reverse at the rig site.

c. Have all trucks travel in a forward motion if at all possible.14

Only one of the proposed abatement measures need ultimately be proved to be feasible.

2.0 Who Is Protected by the General Duty Clause?

Unlike under specific OSHA safety and health standards, the employer’s obligations under the general duty clause extend only to its own employees.15 OSHA will not cite an employer for a Section 5(a)(1) violation unless the employer’s own employ- ees are exposed to a hazard created or controlled by the employer.16 A common em- ployer defense in a general duty clause case is that it is not an employer of the em- ployees exposed to a particular hazard, and thus owes them no general duty under Section 105(a). The Sixth Circuit in Stein, Inc. explained that “the most important factor in determining whether an entity is an employer is ‘who has control over the work environment such that abatement of the hazards can be obtained.’”17

The court in Stein, Inc. also cited the usefulness of the Review Commission’s “economic realities test.”18 This test evaluates whether an employment relation- ship exists by considering the following factors:

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14 Grey Wolf Drilling Co. L.P., 20 OSH Cas. (BNA) 1293, 1293–1294 (Yetman, A.L.J. 2003), aff ’d, Grey Wolf Drilling Co. L. P. v. OSHRC, 20 OSH Cas. (BNA) 1623 (5th Cir. 2004) (unpublished).

15 Anthony Crane Rental, Inc. v. Reich, 70 F.3d 1298, 1305 (D.C. Cir. 1995) (“The language of 29 U.S.C. § 654(a)(1) is specifically limited to situations where an employer’s own employees are exposed to hazards.”) (footnote omitted).

16 Centex Constr. Co., Inc., OSHRC No. 97-0594, 1999 OSAHRC LEXIS 93, at *12 (OSHRC 1999) (“Thus the employer is not liable under the general duty clause when its own employees are exposed to hazards be- yond its reasonable control”).

17 See Stein, Inc. v. OSHRC, No. 95-3686, 1996 U.S. App. LEXIS 25351, at *14 (6th Cir. 1996) (unpub- lished) (citing MLB Industries, Inc., 12 OSH Cas. [BNA] 1525, 1527 [OSHRC 1985]).

18 Stein, Inc., 1996 U.S. App. LEXIS 25351, at *14–15 (citing Loomis Cabinet Co., 15 OSH Cas. [BNA] 1635, 1637 [OSHRC 1992]).

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1. Whom do the workers consider their employer?

2. Who pays the workers’ wages?

3. Who has the responsibility to control the workers?

4. Does the alleged employer have the power to control the workers?

5. Does the alleged employer have the power to fire, hire, or modify the em- ployment condition of the workers?

6. Does the workers’ ability to increase their income depend on efficiency rather than initiative, judgment, and foresight?

7. How are the workers’ wages established?19

Thus, in Stein, Inc., a company was deemed to be an employer because it paid the specific workers, had the power to hire, fire, or modify their employment, made their job assignments, and had “sufficient control” over the job.20

In a multi-employer setting, OSHA will only cite the “exposing employer” for a general duty clause violation.21 An exposing employer is “an employer whose own employees were exposed to a hazard.”22

If the employer-employee relationship is demonstrated, that employer is ob- ligated to protect each of his employees from hazards. With that said, the courts have clarified that “the phrase ‘each of his employees’ in the general duty clause is an inclusive expression which ‘means that an employer’s duty extends to all em- ployees regardless of their individual susceptibilities.’”23

3.0 The Existence of a Hazard

The threshold inquiry in evaluating whether a general duty clause obligation ex- ists is whether there is a hazard. A hazard “is not defined in terms of the absence

The General Duty Clause ❖ 87

19 Stein, Inc., 1996 U.S. App. LEXIS 25351, at *14–15. 20 Id. 21 OSHA Directive CPL 02-00-124, Multi-Employer Citation Policy, at Section X(a)(1) (Dec. 10, 1999). 22 Id.; see also OSHA Interpretation Letter, General Duty Clause Citations on Multi-employer Worksites; NFPA

70E Electrical Safety Requirements and Personal Protective Equipment) (July 25, 2005) (“An employer cannot be cited in its role as a ‘controlling employer’ for exposure of subcontractor employees to a General Duty Clause Violation.”).

23 See, for example, Ho, 20 OSH Cas. (BNA) 1361, 1374 (OSHRC 2003) (quoting Reich, 110 F.3d at 1198, corrected sub nom. Metzler, 1997 U.S. App. LEXIS 12693, at *16 [upholding a general duty clause viola- tion where a fertilizer plant explosion exposed 87 employees to the hazardous condition and holding that the employer’s duty to protect extended to all employees as a group, regardless of age, pregnancy, or other infirmity]).

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of a particular abatement method.”24 Rather, it is defined “in terms of the phys- ical agents that could injure employees.”25 Matters of “human comfort,” as op- posed to hazards that could cause death or serious physical harm, are not covered by the general duty clause.26

An employer may be cited for a general duty clause violation despite the lack of an accident or incident causing injury.27 Further, hazardous conduct need not actually have occurred.28 If the hazardous condition was preventable, the fact that no injuries occurred will not insulate the employer from enforcement action.29

Conversely, an accident in the workplace does not conclusively prove a violation. If the hazard was not preventable, then regardless of injury, the general duty clause has not been violated.30

The Review Commission and the courts have not provided a firm standard for determining the existence of a hazard. In large part, this is due to disagree- ments over the applicability of a “significant risk” standard to “harm that has al- ready occurred,” as opposed to “prospective harm.”31 In Kastalon, Inc., for exam- ple, the Review Commission determined that the Secretary had the burden of establishing a significant risk of harm in a case involving a possible human car- cinogen in the workplace that was suspected on the basis of extrapolation from animal tests.32

In circumstances involving harm that has already occurred, such as repetitive motion and lifting injuries, the Review Commission has not required the Secre- tary to demonstrate significant risk. The Review Commission explained that “un-

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24 Arcadian Corp., 20 OSH Cas. (BNA) 2001, 2007 (OSHRC 2004) (citing Morrison-Knudsen Co./ Yonkers Contracting Co., 16 OSH Cas. [BNA] 1105, 1121–1122 [OSHRC 1993] [hazard was high levels of air- borne lead produced by bridge demolition, not absence of protective clothing.]).

25 Chevron Oil Co., 11 OSH Cas. (BNA) 1329, 1331 n.6 (OSHRC 1983). 26 Feb. 24, 2003 OSHA Interpretation Letter, supra note 4 (Office temperature and humidity generally not

encompassed under general duty clause). 27 Brennan v. OSHRC, 494 F.2d 460, 463 (8th Cir. 1974) (“Neither the general duty clause nor section 17(k)

requires any actual death or physical injury for a violation to occur.”). 28 Empire-Detroit Steel Div., Detroit Steel Corp. v. OSHRC, 579 F.2d 378, 384 (6th Cir. 1978) (holding that

an employer’s awareness of the potential for explosion satisfies the recognized hazard requirement and stat- ing, “hazardous conduct need not actually have occurred to establish a violation of the general duty clause.”)

29 Con Agra, Inc., 11 OSH Cas. (BNA) 1141 (OSHRC 1983) (reversing the Commission’s decision and re- manding, despite the fact that no injury or accident had yet occurred, with instructions to determine the degree of danger posed by employer’s inadequate pesticide testing procedures).

30 National Realty, 489 F.2d at 1267. 31 Beverly Enterprises, 19 OSH Cas. (BNA) at 1170 n.25. 32 Kastalon, Inc., 12 OSH Cas. (BNA) 1928, 1986, 1987 (OSHRC 1986) (applying “significant risk” test in-

troduced by Supreme Court in Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 [1980] [the “Benzene case”])

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der section 5(a)(1), the Secretary need only show that the alleged hazards [in the workplace] were causing or likely to cause serious physical harm to employees there.”33

A significant number of decisions have rejected outright the application of the “significant risk” test in a general duty clause case. In Kelly Springfield Tire Co. v. Donovan, the Fifth Circuit argued that the “extension of the significant risk standard to enforcements of the general duty clause would constitute an aban- donment of the National Realty standard.”34

4.0 Recognized Hazard

In defining the second element underlying the general duty clause, that there be a “recognized hazard,” the D.C. Circuit in National Realty focused on a floor speech by Representative Dominick V. Daniels.

A recognized hazard is a condition that is known to be hazardous, and is known not necessarily by each and every individual employer but is known taking into account the standard of knowledge in the industry. In other words, whether or not a hazard is “recognized” is a matter for ob- jective determination; it does not depend on whether the particular em- ployer is aware of it.35

In order to meet its burden of proof, OSHA must demonstrate that a hazard was recognized either by the individual employer or the employer’s industry.36 An em- ployer need not be specifically aware of a hazard to be cited under the general duty clause.37 Individual employer knowledge of the hazard will, however, be suf- ficient to prove that the hazard was recognizable.38 In the absence of individual

The General Duty Clause ❖ 89

33 Pepperidge Farm, 17 OSH Cas. (BNA) at 2013 n.50; see also Beverly Enterprises, 19 OSH Cas. (BNA) at 1170 n.25 (declining to establish definitive standard but finding an ergonomic hazard under either “signif- icant risk” or non-significant risk evaluation).

34 Kelly Springfield Tire Co. v. Donovan, 729 F.2d 317, 323 (5th Cir. 1984); see also Waldon Healthcare Center, 16 OSH Cas. (BNA) 1052, 1060 (OSHRC 1993) (“[T]he existence of a hazard is established if the haz- ardous incident can occur under other than a freakish or utterly implausible concurrence of circum- stances.”).

35 National Realty, 489 F.2d at 1267 (citing 116 Cong. Rec. (Part 28) 38377 (1970)). 36 Beverly Enterprises, 19 OSH Cas. (BNA) at 1185 (citing Inland Steel Co., 12 OSH Cas. [BNA] 1968, 1970

[OSHRC 1986]). 37 Tri-State Roofing & Sheet Metal, Inc., v. OSHRC, 685 F.2d 878, 880 (4th Cir. 1982) (upholding general duty

clause violation because a “reasonably prudent individual familiar with the circumstances of the industry” would recognize that working 40 feet above a concrete floor without fall protection constitutes a hazard).

38 Safeway, Inc. v. OSHRC, 382 F.3d 1189, 1195 (10th Cir. 2004) (the use of a 40 pound portable propane tank to operate an ordinary barbeque grill constitutes an obvious hazard and violates the general duty clause even though the hazard is not generally recognized by the bread baking industry); See also Peter

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employer knowledge, OSHA will evaluate the hazard to determine if it is gener- ally “recognized” within that employer’s industry or if common sense would make the hazard recognizable.39

It is important to note that in evaluating employer or industry recognition, knowledge of the condition presenting the hazard is not sufficient. Rather, “it is the dangerous potential of the condition or activity being scrutinized that must be known specifically by the employer or known generally in the industry.”40

4.1 Industry Recognition

If a particular hazard is well known or documented within an industry, an em- ployer in that industry has an obligation under the general duty clause to keep its workplace free of that hazard.41 In determining industry recognition of a hazard, the Review Commission and the courts have relied on a variety of in- dices. For instance, it has been “consistently held that voluntary industry codes and guidelines are evidence of industry recognition.”2 Similarly, the opinion of “safety experts familiar with the workplace conditions or the hazard in ques- tion” is also pertinent.43 It is not necessary that the experts be employed in the industry.44

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Cooper Corporations, 10 OSH Cas. (BNA) 1203, 1210 (OSHRC 1981) (holding that the general man- ager’s awareness of an anthrax hazard may be imputed to the employer and stating, “when the Secretary proves that the cited employer has actual knowledge of a particular hazard, the recognition element of a section 5(a)(1) violation is satisfied and industry recognition need not be shown”); International Union, UAW v. General Dynamics Land Systems Div., 815 F.2d 1570, 1577 (D.C. Cir.) (“The duty to protect employees is imposed on the employer, and the hazards against which he has the obligation to protect necessarily include those of which he has specific knowledge.”), cert. denied, 484 U.S. 976 (1987).

39 Kelly Springfield Tire Co., 729 F.2d at 321 (“Where a hazard is ‘obvious and glaring,’ the Commission may determine that the hazard was recognized without reference to industry practice or safety expert testi- mony.”); see also Pratt & Whitney Aircraft, Div. of United Technologies Corp. v. Secretary of Labor, 649 F.2d 96, 101 (2d Cir. 1981) (“To be a recognized hazard, the dangerous potential of the condition or activity be- ing scrutinized either must be known by the employer or known generally in the industry.”).

40 Con-Agra, Inc., 11 OSH Cas. (BNA) 1141, 1144 (OSHRC 1983). 41 See Usery v. Marquette Cement Mfg. Co., 568 F.2d 902, 910 (2d Cir. 1977) (“To constitute a recognized haz-

ard, the dangerous potential of a condition or activity must actually be known either to the particular em- ployer or generally in the industry”); Pratt & Whitney Aircraft, 649 F.2d at 100.

42 Beverly Enterprises, 19 OSH Cas. (BNA) at 1188 (finding NIOSH Lifting Guidelines to be persuasive in demonstrating industry recognition of patient lifting hazard in nursing home industry ergonomics case) (citing Kokosing Constr. Co., 17 OSH Cas. [BNA] at 1873; Kansas City Pwr. & Light Co., 10 OSH Cas. [BNA] 1417, 1422 [OSHRC 1982]; Cargill, Inc., 10 OSH Cas. [BNA] 1398, 1402 [OSHRC 1982]).

43 Beverly Enterprises, 19 OSH Cas. (BNA) at 1187 (citing Waste Management of Palm Beach, Div. of Waste Management, Inc. of Florida, 17 OSH Cas. [BNA] 1308, 1310–1311 [OSHRC 1995]).

44 Kelly Springfield Tire Co., 10 OSH Cas. (BNA) 1970, 1973 (OSHRC 1982), aff ’d, 729 F.2d 317 (5th Cir. 1984).

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Additional bases for finding industry recognition of a hazard include “evi- dence of industry safety practices,”45 proposed OSHA regulations,46 and warn- ings provided by manufacturers.47 Thus, in Cormier Well Serv., the Review Commission relied on an OSHA compliance officer’s testimony regarding oil derrick fall protection practices to conclude that the hazard of standing on the platform without being protected by a safety belt secured to a lifeline was rec- ognized in the industry.48 The decision further noted that the compliance offi- cer had “a degree in petroleum engineering and five years of oil industry expe- rience.”49

This list is not exhaustive. OSHA will use any available evidence to deter- mine whether the hazard is generally recognized.

4.2 Employer Recognition

As set out above, an employer’s actual knowledge of a hazard in the workplace is not required to prove that a hazard was recognizable. However, if it can be demon- strated that the employer was aware of the hazard, the hazard will be deemed rec- ognizable despite a lack of industry recognition or common sense recognition.50

The Review Commission has expressed a reluctance to rely solely on voluntary safety efforts by an employer in determining recognition of a hazard.51

OSHA has demonstrated employer recognition of hazards in a number of ways. For instance, recognition has been imputed from the knowledge and ex- pertise of safety personnel.52 In Pegasus Tower, 21 OSHC BNA 1190, 1191 (2005), the Review Commission found that the potential 400-foot-fall hazard produced by employees riding a base-mounted dual-drum hoist line at a tower erection construction site was recognized by the employer. The Review Com- mission based its finding on the testimony of the employer’s experienced safety

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45 Cormier Well Serv., 4 OSH Cas. (BNA) 1085, 1087 (OSHRC 1976). 46 Kokosing Construction Co., 17 OSH Cas. (BNA) at 1874 (“We also find that the OSHA standard itself,

which was proposed prior to the inspection in this case and which advocated protection for all employees on formwork, is evidence that safety officials and other individuals familiar with the industry recognized the hazard at that time.”).

47 Young Sales Corp., 7 OSH Cas. (BNA) 1297 (OSHRC 1979) (manufacturer’s warning, in conjunction with the fact that supervisors read the warnings and instructed employees of the danger, is sufficient to prove that the employer had actual knowledge of the hazard).

48 Cormier Well Serv., 4 OSH Cas. (BNA) at 1087. 49 Id. at 1087 n.6. 50 Brennan, 494 F.2d at 464. 51 See, for example, Pepperidge Farm, 17 OSH Cas. (BNA) at 2006–2007 (“The rationale is that such reliance

would ‘dissuade employers from taking voluntary protective measures beyond those the law requires’”). 52 Pegasus Tower, 21 OSH Cas. (BNA) 1190, 1191 (OSHRC 2005).

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instructor, which indicated recognition of “the dangers associated with raising and lowering employees on the hoist line.”53

Similarly, in Arcadian Corporation, the Review Commission found that a urea manufacturer recognized the hazard of an explosion caused by leaks that could erode the lining of the reactor.54 Specifically, the Review Commission pointed to testimony regarding the statement of a supervisor regarding the potential for explosion:

The only thing you have to worry about is if that reactor ever leaks or if it ever blows up. You won’t be here to tell about it.55

Other circumstances demonstrating employer knowledge include the exis- tence of voluntary employer safety rules and procedures (in combination with other factors),56 specific warnings given by company management,57 manufac- turers’ warnings,58 complaints by employees,59 and past accidents and injuries.60

It is important to note that the fact that an employer’s work practices are con- sistent with those in the industry does not necessarily demonstrate that the em- ployer could not recognize that the practices are hazardous.61 In Beverly Industries, for instance, the hazards related to patient lifting practices that were standard in the nursing home industry were deemed by the Review Commission to be rec- ognized by the employer because, among other things, management imple- mented a back belt program to address the hazard, specifically warned personnel of the hazard, and distributed a manufacturer’s warning to personnel.62

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53 Id. 54 Arcadian Corp., 20 OSH Cas. (BNA) at 2010. 55 Id. (Employer recognition was also interpreted from supervisor discussions and knowledge of reactor fail-

ures and explosions overseas and at other operations in the United States). 56 See Waldon Healthcare Center, 16 OSH Cas. (BNA) at 1061-1062 (precautions taken by an employer can

be used to establish hazard recognition in conjunction with other evidence); Trinity Industries, 15 OSH Cas. (BNA) 1481, 1485 (OSHRC 1992) (Independent evidence of recognition is required before evidence of voluntary protective measures can be relied upon).

57 See Pepperidge Farm, 17 OSH Cas. (BNA) at 2007. 58 See Safeway, Inc. v. OSHRC, 382 F.3d 1189, 1195 (10th Cir. 2004) (manufacturer’s language on propane

grill and in instructions warned against using large propane tank); Beverly Enterprises, 19 OSH Cas. (BNA) at 1186.

59 See Empire-Detroit Steel Div., Detroit Steel Corp. v. OSHRC, 579 F.2d 378, 381–382 (6th Cir. 1978) (em- ployer’s refusal to correct hazardous condition despite more than a dozen employee complaints indicates em- ployer recognition and may lead to a finding that the violation was willful); See also Carlyle Compressor Co., Div. of Carrier Corp. v. OSHRC, 683 F.2d 673, 676 (2nd Cir. 1982) (employee complaint indicates that the employer and/or the industry must recognize the hazard).

60 See, for example, Titanium Metals Corp. v. Usery, 579 F.2d 536 (9th Cir. 1978) (company’s experience, marred by numerous fires and minor explosions, was sufficient proof that titanium dust posed a serious fire hazard that was “recognized” by the company); see also ConAgra Flour Milling Co., 16 OSH Cas. (BNA) 1137, 1150 (OSHRC 1993) (absence of injuries is not dispositive of whether employees are exposed to a hazard).

61 See Beverly Enterprise. 62 Id.

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4.3 Obvious Hazard Recognition

Even if industry or specific employer recognition can not be established, recog- nition can nonetheless be demonstrated if the hazard is deemed to be “obvious.”63

OSHA refers to such hazard recognition as “common sense recognition.”64

OSHA enforcement policy restricts the application of this theory of recognition to “flagrant cases.”65

Thus, in Safeway, the Tenth Circuit found that the recognized hazard ele- ment of the general duty clause criteria was met where a bread-baking plant em- ployer utilized a forty-pound propane tank on an outdoor gas grill designed for twenty-pound tanks. The court rejected the employer’s argument that the bread- baking industry had never recognized this type of hazard, explaining that “Safe- way cannot ignore the presence of an obviously hazardous condition by asserting that its industry is ignorant of such hazards.”66

The courts and the Review Commission sometimes apply a reasonable per- son standard in evaluating the obviousness of a hazard. If a reasonable person would have recognized the existence of a hazard in the workplace, that hazard will be deemed recognizable.67

5.0 Causing or Likely to Cause Death or Serious Physical Harm

Not all workplace hazards are prohibited by the general duty clause. Employers are liable only for preventing hazards that are “causing or are likely to cause death or serious physical harm.”68 This language has been interpreted as applying the same standard as that applied to a “serious” violation.69 Specifically, there must be

The General Duty Clause ❖ 93

63 Safeway, 382 F.3d at 1195 (citing Tri-State Roofing & Sheet Metal, Inc. v. OSHRC, 685 F.2d 878 [4th Cir. 1982] [working on an unguarded platform 40 feet above a concrete floor without fall protection is clearly a hazard for unprotected workers]); see also Kelly Springfield Tire Co, 729 F.2d at 321 (upholding a violation of the general duty clause despite the fact that neither the employer nor the tire industry in general recog- nized an explosion hazard from the operation of a dust collection system).

64 Occupational Safety and Health Administration, OSHA Field Inspection Reference Manual (hereinafter, FIRM), Section 7, Chapter III (C)(2)(c)(2)(b)(3) (1994), available at http://www.osha.gov/Firm_osha_ data/100007.html.

65 Id. 66 Safeway, 382 F.3d at 1195 n.4.s, 19 OSH Cas. (BNA) at 1186. 67 See Usery, 568 F.2d at 910 (“It scarcely requires expertise in the industry to recognize that it is hazardous to

dump bricks from an unenclosed chute into an unbarricaded alleyway, twenty-six feet below, between build- ings in which unwarned employees work”).

68 29 U.S.C. § 654(a)(1); See General Dynamics Corp., Quincy Shipbuilding Div. v. OSHRC, 599 F.2d 453, 458 (1st Cir. 1979).

69 29 U.S.C. § 666(k).

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a “substantial probability that death or serious physical harm could result from a condition which exists.”70 The occurrence of a death “constitutes at least prima facie evidence of likelihood.”71

In evaluating likelihood, the Review Commission has determined that the general duty clause does not require the Secretary of Labor to prove that an acci- dent is likely.72 Rather, the Secretary need only establish that, if an accident oc- curs, death or serious physical harm would be the likely result.73 Similarly, in eval- uating likelihood with respect to an occupational illness caused by a substance in the workplace, the Secretary must only prove that death or serious harm is likely if an employee contracts the illness.74

Injuries and illnesses that the courts and the Review Commission have indi- cated provide a sufficient basis for a finding that death or serious physical harm could result include “physical disorders that so adversely affect employees that they are disabled from doing their jobs”75 or from performing their normal ac- tivities.76 The Review Commission has also noted that serious physical harm can be demonstrated even in circumstances where there is no evidence of “patholog- ical anatomic change or injury”77—a condition “which cannot be linked to any detectable tissue or body damage or injury.”78

Further, this is true “even if the disability is not permanent.”79 In Consoli- dated Freightways Corp., for instance, the Review Commission found that tem- porary nausea, vomiting, light sensitivity, and the potential for temporary loss of vision, which caused employees to miss up to seven and a half weeks of work, constituted serious physical harm.80 According to the Review Commission, these

94 ❖ Occupational Safety and Health Law Handbook

70 Id. 71 Usery, 568 F.2d at 910. 72 Beverly Enterprise, 19 OSH Cas. (BNA) at 1188 (citing Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160

(3rd Cir. 1980)). 73 Id. 74 See Kaiser Aluminum & Chemical Co., 10 OSH Cas. (BNA) 1893, 1896-97 (OSHRC 1982). 75 Pepperidge Farm, 17 OSH Cas. (BNA) at 2032 (Focusing on upper extremity musculoskeletal disorders

caused by repetitive motion, the Review Commission noted that a finding of serious physical harm is ap- propriate “even if the disability is not permanent.”); see also Miniature Nut & Screw Corp., 17 OSH Cas. (BNA) 1557, 1559 (OSHRC 1996) (hearing loss is serious physical harm even if employee not disabled from working).

76 Beverly Enterprises, 19 OSH Cas. (BNA) at 1190. 77 Id. (citing GAF Corp., 9 OSH Cas. [BNA] 1451, 1456, 1457 [OSHRC 1981] [although no systemic im-

plication demonstrated, serious violation proven based on skin and eye discoloration caused by exposure to airborne silver]).

78 Beverly Enterprises at 1189. 79 Id. at 1190 (The Review Commission in Pepperidge Farm “found serious physical harm based on the exis-

tence of a physically detectable and identifiable injury that can be treated by surgery”). 80 Consolidated Freightways Corp., 15 OSH Cas. (BNA) 1317, 1324 (OSHRC 1991).

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conditions, caused by exposure to toxic dye, were indicative of substantial im- pairment to functions of the body.81

6.0 Feasible Measures to Correct the Hazard

The general duty clause has not been interpreted as imposing an impossible re- sponsibility on employers. The National Realty court explained that “Congress quite clearly did not intend the general duty clause to impose strict liability: The duty was to be an achievable one.”82 Further, the D.C. Circuit acknowledged that a “demented, suicidal, or willfully reckless employee may on occasion circumvent the best conceived and most vigorously enforced safety regime.”83 Each employer, therefore, is required by the general duty clause to keep its workplace free of all preventable hazards.84

Determining whether a hazard is preventable is essentially dictated by an evaluation of the feasibility of abating it. Feasibility “means economically and technologically capable of being done.”85 The Secretary of Labor must set out the proposed abatement measures and “demonstrate both that the measures are ca- pable of being put into effect and that they would be effective in materially re- ducing the incidence of the hazard.”86 The Secretary must also establish that a proposed measure of abatement is not cost prohibitive.87

Feasibility can, in some cases, be determined by common sense.88 OSHA can also point to employer or general industry practices to prove that a feasible method of abatement exists.89 Alternatively, an employer may use evidence of its

The General Duty Clause ❖ 95

81 Id. 82 National Realty, 489 F.2d at 1265-1266; see also General Dynamics Corp., 599 F.2d at 458 (“An employer is

not an insurer, and need not take steps to prevent hazards which are not generally foreseeable, including idiosyncratic behavior of an employee, but at the same time an employer must do all it feasibly can to pre- vent foreseeable hazards, including dangerous conduct by its employees.”).

83 National Realty, 489 F.2d at 1265–1266. 84 See Morrison-Knudson Co., 16 OSH Cas. (BNA) at 1121–1122; Babcock & Wilcox Co., 622 F.2d at 1164;

Marshall v. L. E. Myers Co., 589 F.2d 270, 272 (7th Cir. 1978). 85 Beverly Enterprises, 19 OSH Cas. (BNA) at 1191 (citing Baroid Div. of NL Industries, Inc. v. OSHRC, 660

F.2d 439, 447 (10th Cir. 1981)). 86 Beverly Enterprises, 19 OSH Cas. (BNA) at 1190 (citing National Realty, 489 F.2d at 1267; Waldon, 16 OSH

Cas. [BNA] at 1062) (further citations omitted). 87 Waldon, 16 OSH Cas. (BNA) at 1063. 88 Carlyle Compressor Co., 683 F.2d at 677 (“Courts are entitled to base conclusions upon common sense where

the facts so warrant”). 89 See Puffer’s Hardware, Inc. v. Donovan, 742 F.2d 12, 19 (1st Cir. 1984) (ANSI Standards and common us-

age of safety mechanism by other elevator owners proves the feasibility of the abatement method); see also Young Sales Corp., 7 OSH Cas. (BNA) at 1297 (manufacturer’s suggested safety precautions prove the fea- sibility of abatement).

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own abatement efforts or standard industry abatement methods in demonstrat- ing that “it took all necessary precautions to prevent the occurrence of the viola- tion.”90 However, the courts and the Review Commission have made it clear that a safety precaution does not have to have “general usage” in an industry in order to be deemed feasible.91 As explained by the D.C. Circuit in National Realty, “the question is whether a precaution is recognized by safety experts as feasible, not whether the precaution’s use has become customary.”92

In essence, the basic focus in evaluating feasibility is whether the measure is “reasonable and practical.”93 A key component of this inquiry is whether the measure will “materially reduce the hazard.”94 In Waldon Healthcare Center, the Review Commission found that the Secretary’s proposed pre-exposure vaccina- tion measure for Hepatitis provided “virtually the same effectiveness rate” as the postexposure treatment measure offered by the employer.95 Consequently, the Review Commission determined that the Secretary had failed to demonstrate that the abatement measure would result in a material reduction of the hazard.96

In Arcadian Corp., the Review Commission found that three specific abate- ment methods proposed by the Secretary would materially reduce the reactor ex- plosion hazard caused by the leakage of a corrosive chemical (urea).97 Based on the abatement practices in the fertilizer industry and the employer’s own policy for dealing with urea leaks, the Review Commission specifically identified the fol- lowing abatement methods: (1) shutting down the urea reactor upon detection of the leak; (2) inspection of the leak detection system; and (3) regular inspections of the reactor.98

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90 General Dynamics Corp., 599 F.2d at 458; see also Brown & Root, Inc., 8 OSH Cas. (BNA) 2140, 2144 (OSHRC 1980) (Employer abatement measure which provides protection that is just as effective as Secre- tary’s proposed abatement is defense to alleged general duty clause violation).

91 National Realty, 489 F.2d at 1267, n.37; see also General Motors Corp., OSHRC No. 77-3790, 1982 OS- HARC LEXIS 116, at *11 (OSHRC August 30, 1982) (“Abatement requirements are based on feasibility and an abatement order may require practices that are of a higher standard than the industry considers ap- propriate”).

92 National Realty, 489 F.2d at 1266, n.37. 93 Waldon, 16 OSH Cas. (BNA) at 1064; see also Beverly Enterprises, 19 OSH Cas. (BNA) at 1191 (Review

Commission evaluates proposed abatement efforts based on “whether conscientious experts in the industry” would include such measures in developing a safety program) (citing National Realty, 489 F.2d at 1266).

94 Waldon, 16 OSH Cas. (BNA) at 1062 (citing Baroid Div. of N.L. Industries, Inc. v. OSHRC, 660 F.2d 439 [10th Cir. 1981]).

95 Waldon, 16 BNA OSHA at 1063. 96 Id. 97 Arcadian Corp., 20 OSH Cas. (BNA) at 2011–2013. 98 Id.; see also Grey Wolf Drilling Co. L. P., 20 OSH Cas. (BNA) at 1623 (affirming Review Commission final

order finding that obstructed view flagman procedure for backing up loaded trucks was feasible abatement procedure for hazard created when backing up unloaded trucks).

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An equally important component of the feasibility determination is whether the employer can absorb the costs of the proposed abatement measures without threatening its “economic viability.”99 In this regard, two issues that courts and the Review Commission generally consider are: (1) whether the costs of a pro- posed abatement method will “jeopardize a company’s long-term profitability and competitiveness,” and/or (2) whether those costs can be passed on to the cus- tomer.100 In Sun Ship, Inc., the Review Commission found that the Secretary had made a prima facie case of economic feasibility because the proposed $2,500 noise abatement control would not adversely impact an employer with annual sales of $100 million.101

7.0 Practical Enforcement of the General Duty Clause

The mechanics of general duty clause enforcement derive from the central tenet that the clause can only be used when there is no safety standard applicable to the particular hazard involved.102 With this said, agency policy, consistent with court and Review Commission decisions, allows enforcement personnel to cite the gen- eral duty clause, along with a standard, when there is doubt as to the application of the standard.103 OSHA’s Field Inspection Reference Manual provides the OSHA area manager and assistant area manager discretion to conduct a precitation re- view when section 105(a)(1) is contemplated.104

Upon a determination that no standard applies to an identified hazard, OSHA policy directs its enforcement personnel to evaluate whether the four ele- ments of a general duty clause violation, laid out by the courts and the Review

The General Duty Clause ❖ 97

99 Waldon, 16 OSH Cas. (BNA) at 1063. 100 Id. (Review Commission found that the Secretary had failed to demonstrate either of these issues). 101 Sun Ship, Inc., 11 OSH Cas. (BNA) 1028, 1036 (OSHRC 1982) (denying employer’s argument that Sec-

retary’s burden on economic feasibility be based on calculation of cost of plant-wide abatement as opposed to specific violation abatement); see also Walker Towing Corp., 14 OSH Cas. (BNA) 2072, 2077–2078 (OSHR.C 1991) (The cost of installing limited guardrails on barges was insignificant to barge repair em- ployer because such costs “fall within the usual range of charges to barge customers requiring major re- pairs”).

102 FIRM, supra note 60, at Section 7, Chapter III(C)(2)(c)(1). The Field Inspection Reference Manual does not establish any substantive rights, duties, or benefits. See FIRM, supra note 60, at Section 3, available at http://www.osha.gov/Firm_osha_data/100002.html.

103 FIRM, supra note 60, at Section 7, Chapter III(C)(2)(c)(3)(a); see Safeway, 382 F.3d at 1191 (citation for general duty clause violation properly amended to allege, in the alternative, violation of a specific standard); see also Carlyle Compressor Co., 683 F.2d at 674 (Secretary may file a complaint alleging violations of the general duty clause while simultaneously alleging violations of a specific standard).

104 FIRM, supra note 60, at Section 7, Chapter III(C)(2)(c)(4); but see FIRM, supra note 60, at Section 7, Chap- ter III (C)(2)(c)(3)(c) (Precitation review must be conducted “if it can be documented that ‘an employer knows a particular safety or health standard is inadequate to protect his workers against the specific hazard it is intended to address’” (citing International Union, U.A.W. v. General Dynamics Land Systems Division, 815 F.2d 1570, [D.C. Cir 1987]).

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Commission, are met (hazard in the workplace, recognition of hazard, hazard causing or likely to cause death or serious physical harm, and feasible abate- ment).105 Under this policy, if no standard exists and all four elements can not be demonstrated, the area office must forward a letter “to the employer and the em- ployee representative describing the hazard and suggesting corrective action.”106

The agency also acknowledges a number of limitations on its ability to cite the general duty clause. The policy specifically states that Section 5(a)(1):

1. Shall not group violations together (can be grouped with related violation of a specific standard);

2. Shall not normally be used to impose a stricter requirement than that re- quired by the standard (unless it can be documented the employer knows that the standard is ineffective in protecting the employees from the spe- cific hazard);

3. Shall normally not require an abatement method not set forth in a stan- dard;

4. Shall not be used to enforce ‘should’ standards;

5. Shall not normally be used to cover categories of hazards exempted by a standard (unless exemption was based on something other than lack of a hazard).107

In proposing civil penalties for general duty clause violations, OSHA has, in the past, attempted to issue penalties based on the number of employees affected by the hazardous condition rather than the condition itself. This, of course, had the effect of greatly increasing the overall civil penalty directed to the employer. In Arcadian Corp., the Fifth Circuit affirmed the Review Commission’s rejection of this position. The court noted that the Act focuses civil penalties on conditions, practices, and violations, and not on employees.108 With this stated, the court ac- knowledged that the number of employees affected by a hazardous condition can be considered by the Review Commission in carrying out its “exclusive role” of

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105 FIRM, supra note 60, Section 7, Chapter III(C)(2)(c)(1). 106 FIRM, supra note 60, Section 7, Chapter III(C)(2)(c)(4). 107 FIRM, supra note 60, Section 7, Chapter III(C)(2)(c)(3). 108 Reich, 110 F.3d at 1198–1199, corrected sub nom. Metzler, 1997 U.S. App. LEXIS 12693, at *19 (employee

could only be unit of violation “if regulated condition or practice was unique to the employee”); see also C.T. Taylor Company, Inc, 20 OSH Cas. (BNA) 1083, 1085 (2002) (Review Commission declining Secretary’s request to overturn Arcadian Corp).

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assessing a civil penalty that has been proposed by the Secretary and contested by an employer.109

8.0 Conclusion

The primary purpose of the general duty clause is to offer an extra measure of protection to employees in the workplace. Most standards implemented under OSHA are targeted at a specific hazard. The general duty clause, however, allows inspectors to cite employers for exposing its employees to a recognized hazard that has not been specifically addressed in the regulations.

The General Duty Clause ❖ 99

109 Reich, 110 F.3d at 1199, corrected sub nom. Metzler, 1997 U.S. App. LEXIS 12693, at *21 (proper to con- sider number of affected employees in evaluating assessment criteria at 29 C.F.R. § 666(j)); see also FIRM, supra at note 60, Section 8, Chapter IV(C)(2), available at http://www.osha.gov/Firm_osha_data/100008 .html.

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Chapter 5

Recordkeeping Melissa A. Bailey Ogletree, Deakins, Nash, Smoak & Stewart, P. C. Washington, D. C.

1.0 Overview

The Occupational Safety and Health Administration (OSHA) requires employ- ers to maintain several different types of records. First, the Recording and Re- porting Occupational Injuries and Illnesses regulation requires employers to record work-related injuries and illnesses that meet certain criteria on the OSHA 300 Log.1 Employers must also develop and maintain an OSHA 301 Form de- scribing each individual injury and illness and must certify and post an annual summary of injuries and illnesses on the OSHA 300-A Form by February 1 of the year after the injuries and illnesses occurred. The recordkeeping regulation also requires employers to report each fatality or in-patient hospitalization of three or more employees to the local OSHA area office within eight hours.

Second, OSHA safety standards, which are generally intended to prevent physical hazards in the workplace, require a variety of different types of records. For example, OSHA safety standards may require documentation of employee training, written compliance programs, inspection reports and hazard assess- ments.

Third, OSHA’s health standards, which are generally intended to limit expo- sure to substances that may be hazardous to employee health, typically require the employer to prepare and maintain records of employee exposure levels as well as employee medical records. For example, certain substance-specific standards, such as the lead,2 cadmium,3 and benzene4 standards, require employers to per- form monitoring to determine employee exposure levels and to provide medical

1 29 C.F.R. Part 1904. 2 29 C.F.R. Section 1910.1025 3 29 C.F.R. Section 1910.1027 4 29 C.F.R. Section 1910.1028

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surveillance for certain employees. OSHA’s Access to Employee and Medical Records standard mandates that employers maintain the types of records required by these types of health standards.5

Finally, employers often maintain certain records to prove compliance with a standard even if OSHA does not require the records to be retained. For example, Subpart L contains requirements for fire protection, including maintenance and testing provisions for fire suppression systems such as portable fire extinguishers, standpipe and hose systems, and sprinkler systems.6 Although the Subpart L stan- dards do not require employers to maintain records of tests and inspections, the employer may, as a practical matter, be unable to show compliance in the event of an inspection in the absence of testing and inspection records. Many other OSHA standards essentially require employers to keep records to prove compli- ance in the event of an enforcement action.

2.0 Statutory Authority

When the Occupational Safety and Health Act (OSH Act) was enacted, Congress recognized that data about injuries, illnesses, and hazards would assist OSHA in developing standards to address hazards and in concentrating enforcement re- sources on workplaces with employees experiencing injuries and illnesses. As such, Congress sought to “assure so far as possible every working man and woman in the National safe and healthful working conditions.”7 To achieve this goal, Congress authorized “research in the field of occupational safety and health,” the “development and promulgation of occupational safety and health standards,” and “appropriate reporting procedures with respect to occupational safety and health” to “accurately describe the nature of the occupational safety and health problem.”8

Section 8 of the OSH Act includes several recordkeeping provisions. Section 8(c)(1) requires each employer to “make, keep and preserve” any records OSHA “may prescribe by regulation as necessary or appropriate for the enforcement of this Act or for developing information regarding the causes and prevention of oc- cupational accidents and illnesses.”9 Section 8(c)(2) authorizes OSHA to “pre- scribe regulations requiring employers to maintain accurate records of, and make periodic reports on, work-related deaths, injuries and illnesses other than minor

102 ❖ Occupational Safety and Health Law Handbook

5 29 C.F.R. Section 1910.1020 6 29 C.F.R. Subpart L, 1910.155 et seq. 7 29 U.S.C. Section 651. 8 Id. 9 29 U.S.C. Section 657(c)(1).

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injuries requiring only first aid treatment and which do not involve medical treat- ment, loss of consciousness, restriction of work or motion, or transfer to another job.”10 Section 8(c)(3) requires OSHA to “issue regulations requiring employers to maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents.” 11

The remainder of this chapter describes the recordkeeping and documenta- tion provisions OSHA has instituted pursuant to these congressional directives.

3.0 Injury and Illness Recordkeeping

As discussed further below, the Recording and Reporting Occupational Injuries and Illnesses regulation, commonly known as the recordkeeping regulation, re- quires employers to record certain work-related injuries and illnesses on the OSHA 300 Log, to keep other data concerning these injuries, and to post a sum- mary of injuries and illnesses each February. In addition, employers must report a fatality or in-patient hospitalization of three or more employees within eight hours to the local OSHA area office. The regulation also requires employers to respond to requests from OSHA or the Bureau of Labor Statistics (BLS) for in- jury and illness data.

3.1 History of the Recordkeeping Requirements

OSHA has required employers to keep injury and illness records since shortly af- ter the OSH Act was enacted in 1971. From 1971 to 1990, OSHA and the Bu- reau of Labor Statistics jointly administered the injury and illness recordkeeping system. In a Memorandum of Understanding executed in 1990, BLS agreed to conduct annual surveys of occupational injuries and illnesses and compile the data, and OSHA agreed to administer the enforcement and rulemaking aspects of recordkeeping.

On January 19, 2001, OSHA issued a revised recordkeeping regulation.12

Prior to these revisions, OSHA’s recordkeeping regulation was considered by many employers to be confusing, and employers often had difficulty determining when an injury or illness had to be recorded. Most provisions of the revised recordkeeping regulation became effective on January 19, 2002.13

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10 29 U.S.C. Section 657(c)(2). 11 29 U.S.C. Section 657(c)(3). 12 Occupational Injury and Illness Recording and Reporting Requirements: Final Rule, 66 Fed Reg. 5916 (Jan-

uary 19, 2001). Most parts of the revised regulation became effective on January 19, 2002. 13 Id.

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3.2 OSHA’s Authority for Requiring Employers to Keep Records

OSHA’s authority to require employers to keep injury and illness records derives from Section 8(c) of the OSH Act. Also, Section 24(a) requires the Secretary to de- velop and implement a program to “compile accurate statistics on work injuries and illnesses which shall include all disabling, serious, or significant injuries and ill- nesses, whether or not involving loss of time from work, 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.”

3.3 Identifying Injuries and Illnesses that Must be Recorded

OSHA’s recordkeeping regulation generally requires employers to record each “non-minor” work-related injury or illness on the establishment’s OSHA 300 Log. The regulation sets out a series of criteria that must be met for an injury or illness to be recorded. These criteria are:

• Has an “injury” or “illness” occurred?

• Is the injury or illness “work-related”?

• Is the work-related injury or illness a “new case”?

• Does the injury or illness meet the general recording criteria, such as days away from work, restricted work or job transfer, or the provision of med- ical treatment?

• Is the injury or illness in a special category, such as an occupational hear- ing loss or tuberculosis, a “significant” injury or illness, or a sharps/needle- stick injury that requires recording?14

Each recordable injury and illness must also be described on an OSHA 301 Incident Report. The OSHA 301 report requires information about the em- ployee, where the employee was treated, how the injury or illness occurred, and the extent of the injury or illness.15 The employer is also required to execute and post an annual summary of illnesses and injuries on the Form 300-A, which de- scribes the injuries and illnesses from the previous year, and must be posted each February.16

104 ❖ Occupational Safety and Health Law Handbook

14 The recordkeeping regulation contains a flowchart to assist employers in determining whether an injury or illness is recordable. See 29 C.F.R. Section 1904.5(b)(2).

15 29 C.F.R. Section 1904.29(b). 16 29 C.F.R. Section 1904.32.

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3.3.1 Determining Whether an Injury or Illness Has Occurred

In the majority of cases, it is obvious whether an injury or illness has occurred. For example, an employee who trips and breaks his ankle has clearly experienced an injury, and an employee who contracts tuberculosis clearly has an illness.17

Section 1904.46 defines an injury or illness as an “abnormal condition,” in- cluding but not limited to a “cut, fracture, sprain, or amputation,” or “a skin dis- ease, respiratory disorder, or poisoning.”18 OSHA intentionally defined “injury or illness” very broadly because the “series of screening mechanisms for record- ing,” such as the work-related requirement and the various recording criteria, are intended to weed out what OSHA considers to be minor injuries and illnesses. Nevertheless, an injury or illness has to constitute an abnormal condition and in- cludes only “those changes that reflect an adverse change in the employee’s con- dition that is of some significance.” Although injury and illness are broadly de- fined, a “mere change in mood or experiencing normal end-of-the-day tiredness” do not meet the definition.19

3.3.2 Defining “Work-Related”: The Geographic Presumption

Employers are required to record only those injuries and illnesses that are work- related. While this determination may seem simple on its face, the question of whether an injury or illness is work-related often presents difficult and complex issues. The recordkeeping regulation is not intended to require recording of only those injuries that result from a hazard in the workplace. Instead, the regulation is designed to capture the vast majority of significant injuries or illnesses that oc- cur or surface at the workplace on a “no fault” basis. The OSHA 300 Log itself states that recording “does not mean that the employer or a worker was at fault or that an OSHA standard was violated.”

The regulation also requires employers to presume that any injury or illness that occurs or surfaces in the workplace is “work-related.” The only exceptions to this geographic presumption are set out in the regulation. This geographic pre- sumption may lead to counterintuitive results. For example, an employee may slip in the company parking lot and suffer an injury. This injury would be con- sidered work-related even though it did not occur because of a hazard in the workplace; the employee was simply clumsy. 20

Recordkeeping ❖ 105

17 Prior to the revision of the recordkeeping regulation in 2001, the recording criteria for injuries and illnesses were different. In the revision, OSHA simplified the regulation by treating the recording of injuries and ill- nesses the same.

18 29 C.F.R. Section 1904.46. 19 66 Fed Reg. 5916, 6080 (January 19, 2001). 20 See generally 66 Fed. Reg. 5916, 5928 (January 19, 2001).

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Section 1904.5(a) of the regulation states that an injury or illness is “work- related if an event or exposure in the work environment either caused or con- tributed to the resulting condition or significantly aggravated a pre-existing in- jury or illness.” Section 1904.5(b) defines work environment as “the establishment and other locations where one or more employees are working or are present as a condition of their employment,” and the term “includes not only physical loca- tions, but also the equipment or materials used by the employee during the course of his or her work.”

The “geographic presumption” is described as follows: “Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in § 1904.5(b)(2) specifically ap- plies.”21 As such, an injury or illness is work-related if the injury or illness would not have happened but for the presence of the employee in the workplace. The fact that the employer could not have prevented the injury or illness through measures such as a better safety program or machine guards is irrelevant.

OSHA illustrated this concept during the rulemaking by giving several ex- amples, including the following:

Injuries and illnesses also occur at work that do not have a clear connec- tion to specific work activity, condition or substance that is peculiar to the employment environment. For example, an employee may trip for no apparent reason while walking across a level factory floor; be sexually assaulted by a co-worker; or be injured accidentally as a result of violence perpetrated by one co-worker against a third party. In these and similar cases, the employee’s job-related tasks or exposures did not create or con- tribute to the risk that such an injury would occur. Instead, a casual con- nection is established by the fact that the injury would not have occurred but for the conditions and obligations of employment that placed the employee in the position in which he or she was injured or made ill.22

Similarly, OSHA stated:

If an event, such as a fall, an awkward motion or lift, an assault or an in- stance of horseplay, occurs at work, the geographic presumption applies and the case is work-related unless it otherwise falls within an exception. Thus, if an employee trips while walking across a level factory floor, the resulting injury is considered work-related under the geographic pre- sumption because the precipitating event—the tripping accident— occurred in the workplace. The case is work-related even if the employer

106 ❖ Occupational Safety and Health Law Handbook

21 29 C.F.R. Section 1904.5(a). The exceptions in Section 1904.5(b)(2) are discussed later in this section. 22 66 Fed Reg. 5916, 5946 (January 19, 2001) (emphasis added).

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cannot determine why the employee tripped, or whether any particular workplace hazard caused the accident to occur.23

OSHA provides additional guidance about determining whether an injury or illness is work-related in the Recordkeeping Policies and Procedures (“Compli- ance Directive”).24 The guidance states that “a case is presumed work-related if, and only if, an event or exposure in the work environment is the discernable cause of the injury or illness or of a significant aggravation to a pre-existing con- dition,” and notes that the “work event or exposure need only be one of the dis- cernable causes; it need not be the sole or predominant cause.”

3.3.3 Preexisting Conditions

An injury or illness is also considered work-related if an “event or exposure . . . significantly aggravated a pre-existing injury or illness.”25 A condition is preexist- ing if “it resulted solely from a non-work-related event or exposure that occurred outside the work environment.”26 A preexisting condition is considered aggra- vated, and therefore work-related, only if the workplace event or exposure wors- ens the preexisting condition such that one of the following conditions occurs:

(i) Death, provided that the preexisting injury or illness would likely not have resulted in death but for the occupational event or exposure;

(ii) Loss of consciousness, provided that the preexisting injury or illness would likely not have resulted in death but for the occupational event or exposure;

(iii) One or more days away from work, or days or restricted work, or days of job transfer that otherwise would not have occurred but for the oc- cupational event or exposure;

(iv) Medical treatment in a case where no medical treatment was needed for the injury or illness before the workplace event or exposure, or a change in medical treatment was necessitated by the workplace event or expo- sure.27

Recordkeeping ❖ 107

23 66 Fed Reg. 5916, 5959 (January 19, 2001). 24 Compliance Directive 02-00-135, December 30, 2004, available at http://www.osha.gov/pls/oshaweb/

owadisp.show_document?p_table=DIRECTIVES&p_id=3205. OSHA also published a Recordkeeping Handbook in 2005, available at http://www.osha.gov/recordkeeping/handbook/index.html.

25 29 C.F.R. Section 1904.5(a). 26 29 C.F.R. Section 1904.5(b)(5). 27 29 C.F.R. Section 1904.5(b)(4).

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