elinfonet

OSHA poster.  OSH Act regulations require that all employers post a copy (or a reasonable facsimile) of OSHA’s poster “Job Safety and Health Protection” in conspicuous places where notices to employees are customarily placed in each establishment (29 CFR & 1903.2 (a)(1)).

Citations: After inspecting the workplace, OSHA inspectors may issue citations for conditions believed to be in violation of the OSH Act.  If OSHA issues citation and notification of penalty, the citation should describe the specifics of the alleged violation, fix a reasonable time for abatement, and propose alternate penalties.  A citation may be issued even if an employer has taken steps to clear up the violation after the inspector pointed it out in his/her informal discussion.

Since 1986 OSHA has cited employers for each individual violation instance where violations have been particularly flagrant.  Under a new 1990 directive, OSHA will issue citations on a violation – by – violation basis when violations are willful (intentional violations that display a careless or reckless disregard or indifference to the laws requirements and to employees’ safety and health) and when one or more of the following apply:

• Workers fatalities, a worksite catastrophe, or a large number of serious illnesses/injuries occur.
• Violations resulting in persistently high rates of workers injuries/illnesses.
• The employer has an extensive history of violations.
• The employer’s conduct amounts to clear bad faith in performing his/her duties under the OSH Act.
• The large number of violations found significantly undermines the effectiveness of any existing safety and health program.

Demonstrating “good faith.”  “Good faith” is a factor considered when penalties for violations are computed.  The Assistant Secretary of Labor for Occupational Safety and Health has said that an employer’s familiarity with regulations in the Act and specific accomplishments that show a desire to comply with the Act will be determining “good faith.”  (Examples of specific accomplishments, according to the Secretary, include initiation of safety training programs, installation of protective equipment, etc.)

Employee misconduct as a defense.  An employer may negate an OSH Act violation on the grounds of employee misconduct for violations over which employees have individual control.  However, a work rule specific enough to meet this defense must be designed to prevent the cited violation or be its functional equivalent.  The employer must demonstrate the following:

• It established work rules designed to prevent the specific violation from occurring;
• The work rules were adequately communicated to employees;
• The employer has taken steps to discover the violations; and
• The employer has effectively enforced the rules when violations have been discovered.

“De minimus” citation.  The inspector may also issue a notice of de minimus- or minor- violation, which does not have any direct or immediate relationship to safety or health- for example, a technical violation such as the height of letters on an exit sign.

Posting. When an employer receives a citation under the OSH Act, it must post an unedited copy of it at or near each place an alleged violation occurred or where affected employees can see it – even if the employer is planning to contest it.  The citation must be posted for three days or until the violation is abated – whichever is longer.  A notice of a de minimus violation need not be posted. 

Reliance on withdrawal of citation.  OSHA may withdraw a citation for a number of reasons.  However, the act of withdrawing a citation does not constitute a statement by OSHA that the condition is consistent with the standard’s requirement, nor does it provide the employer with a license to continue to operate its facility in violation of the Act.  An employer should not rely on the withdrawal of a citation because it will not immunize from future enforcement of the OSH standard.

An employer has the right to contest an OSHA citation by responding in writing to the area OSHA director within 15 days of receiving the citation notice.

Petition for modification of abatement.  If an employer is unable to meet an abatement date and the 15-day period for the notice of contest has expired, the employer may file a written “petition for modification of abatement” with the OSHA area director no later than one working day after the abatement date.

An employer must post for 10 days a petition for modification of abatement and give a copy to employees’ authorized representative.  Employees have the right to file objections during that time.

Here are items to consider in preparing an OSHA case:

• Review the citations carefully, item by item, and compare them with the particular section of the OSHA standard referenced.  Is the violation appropriate under the cited section?  Compare the citations with the notes taken during the inspector’s visit.  Are there differences?
• Check first-aid and OSHA 300 logs to determine the incidence of injuries or job-related health concerns, if any, in the area or equipment cited.  Be prepared to bring along at least two years’ logs to the hearings.
• Determine how often employees work or walk through the area cited.  For employees working in the area, what is the time duration of exposure?  What is the proximity of employees to the point of danger?  What is the possible severity of injury or illness if an employee were hurt?  What is the probability that an employee could be injured as a result of the alleged violation.
• Review the history of previous OSHA inspections, citations, and settlements at the facility.
• For uncontested violations, abate promptly and document efforts fully.
• Go to the conference with copies of safe operating procedures distributed to other employees, copies of the hazard communication program, if appropriate, and any other management coordinating materials.
• If penalties seem to high, say so to the OSHA director.  That person has the leeway under the regulations to adjust the penalty downward for good-faith efforts by the employer.
• Take along key players to the hearing- the ranking manager and any other technical or staff managers who can comment in a positive way about management’s safety efforts.

If agreement is reached on the contested items at the informal conferences, the OSHA official will prepare a settlement agreement that OSHA, the employer representative, and the employee representative are asked to sign.  Failing agreement, the matter will go to the OSHRC.

Overview: Under its federal Hazard Communication Standard (8-24-87), OSHA requires employers in all industries (manufacturing and non- manufacturing) exposed to hazardous substances to educate and train all workers about chemical hazards they may encounter on the job.  The Hazard Communication Standard became fully applicable to the construction industry 1-30-89; the Supreme Court rejected on 2-21-89 the construction industry’s request to delay enforcement of the standard.

Hazard communication requirements.  The Hazard Communication Standard is one of the broadest and most significant workplace health programs to date.  According to OSHA chief Gerard Scannell, more than 13,000 employers were cited in fiscal year 1990 for failing to have a written hazard communication program- more than any other specific OSHA violation.

Preemption of state right- to- know laws.  OSHA’s standard preempts all state or local right-to-know laws except in states where it has approved state programs.

Compliance.  Hazard communication requirements include:

• logging all chemicals and substances (as defined in the Act) into a chemical inventory;
• collecting and retaining information on every chemical hazard in the   workplace, in the form of “material safety data sheets” or MSDSs;
• labeling containers of hazardous substances as to their content and the hazards these substances present;
• educating and training employees to understand MSDSs, the nature of the hazards of each substance, how to avoid these hazards, and the warning signs associated with exposure to each substance; and
• preparing a written hazard communication plan that summarizes the employer’s approach, plan for hazard communication, and the designation of key official(s) who will be responsible for implementing and maintaining the program.

Employers’ Responsibilities

Material safety data sheets are forms that must be filled out by every manufacturer, importer, and distributor of chemicals for every substance that may pose a health hazard in the workplace, as defined in the Act.

Under the Hazard Communication Standard, employers must maintain a complete and accurate MSDS for each hazardous chemical used in the facility.  If employers do not receive MSDSs with chemical shipments, it is the employer’s duty to contact the manufacturer for clarification or to obtain the missing information.  If chemical manufacturers are uncooperative, employers can contact the nearest OSHA area office.

Over-the-counter purchases.  OSHA notes that employers often purchase so called hazardous substances from retailers, which may not have MSDSs available.  In such cases, the employer should obtain the name and address of the manufacturer or distributor of the chemicals from the retailer and contact the manufacturer to obtain MSDSs.

Employee communication.  Employers must make MSDSs readily available to employees who may be exposed to the hazardous substances during the course of work.  Employers must also make sure each employee has a basic knowledge of the MSDS and how to use the information.  A 1990 Senate Appropriations Committee budget report directed OSHA to make MSDSs easier to understand to make safety training more effective.  OSHA’s Hazard Communication Standard Compliance Kit contains a glossary of terms commonly used on MSDSs.

Labeling Requirements

Manufacturers, importers, and distributors must also label shipped containers of hazardous substances.  Labels should be an abbreviated version of the MSDS.  These labels must provide the identity of the substance, specific warnings of the hazards the substance poses (for example, the bodily organs that might be affected by exposure, and the name and address of the manufacturer or other responsible party.  Employers are responsible for ensuring that all containers of Hazardous substances are properly labeled, including temporary storage containers used but not provided by the manufacturer.

Training Requirements

the requirements of the Hazard Communication Standard; any operations in employees’ work areas where hazardous chemicals are present; location and availability of the company’s hazard communication program, including the required MSDSs; physical and health hazards of the chemicals in the work area; measures employees can take to protect themselves from these hazards, including information on work practices, emergency procedures, and the personal protective equipment required by the employer; and details of the employer’s written hazard communication program, including an explanation of the labeling system, MSDSs, and how employees can use the appropriate hazard information on the labels and MSDSs. Training Tip.  The Committees on Occupational Safety and Health (COSH) have found these suggestions helpful when training employees in the Hazard Communication Standard:

• Try to train in small groups of three to five people, sitting around a table rather than in classroom style.  Participants will help one another around the table and ask questions within their small group, rather than embarrassing themselves by raising their hands.
• Gauge the participant’s pace in learning, and adjust the presentation accordingly
• Use simple terms.  For example “Acute” means now; “Chronic” is a longer term.
• Lighten the presentation with anecdotes and humor.  Use case histories right from the organization if possible.
• Take a break every half-hour.

Coverage

Virtually all employers, except those governed by OSHA- approved state occupational safety and health plan.  State plans generally cover all employers and employees within an affected industrial, occupational, or hazard grouping; employers excluded for good cause from state plans are covered under the federal OSH Act.

Discrimination

Employers cannot discharge or otherwise discriminate against employees for exercising their rights under the act.

Exemptions

Employers may apply for variances – that is, exceptions to the rule, standard or regulation – in the following circumstances:

• When an employer does not have enough time or personnel to comply with a standard by its effective date
• When an employer’s practices or conditions, although different from the federal requirements, are as safe and healthy as those required by the federal standard
• If an employer needs a variance to participate in an approved work safety or health experiment
• If compliance would seriously impair national defense.

Compliance

Employers must comply with OSHA standards and the general duty clause.  The general duty clause entitles employees to work environments and assignments free from hazards recognized as causing or likely to cause serious harm or death.  OSHA standards include initial, permanent, and emergency temporary standards.

Employees also must “comply with occupational safety and health standards and all rules, regulations, and orders” that apply to workers.

Recordkeeping

Recordable cases: Employers with 11 or more employees must record the following:

• Fatalities, regardless of the time between injury and death
• Lost workday cases, other then fatalities, where occupational injury or illness has caused the employee to miss work.
• Nonfatal cases without lost workdays that (1) result in transfer to another job or termination of employment, (2) require medical treatment beyond first aid, (3) involve loss of consciousness or restriction of work or motion, or (4) are diagnosed illnesses reported to the employer but not classified as fatalities or lost workday cases.  Required forms: Employers with 11 or more employees must maintain the following forms:
• OSHA Form 300: Log and Summary of Occupational Injuries and Illnesses is used to document recordable occupational injuries/illnesses within six workdays after discovery of the incident and must be maintained on a calendar (Jan1- Dec 31) basis.
• OSHA Form 301: Supplemental Record of Occupational Injuries/Illnesses provide detailed information on the recordable incidents and must be available for inspection within six workdays of discovering the incident.  Employers may substitute workers’ compensation, insurance, or similar forms if it contains all information required by OSHA or if the employer adds the missing information. How long to keep records: Employee medical records, if maintained, must be kept for duration of employee’s tenure with the company, plus 30 years.  Employee exposure records, if maintained must be kept for at least 30 years.

Reporting

All Employers: Employers must report all job accidents causing an employee’s death or hospitalization of three or more employees.  The employer must make this report, by phone or in person, to the OSHA area director within 8 hours of the accident.  The employer can also use the OSHA toll-free central number (800 321-OSHA)

Selected Employers: Employers selected to participate in a statistical report program or period surveys of occupational injuries/illnesses must submit required data and forms.

Posting

OSHA Poster: must be posted in the workplace in whatever space is normally reserved for employee notice.  OSHA Form 300A: must be conspicuously posted from Feb. 1, to March 1 of each year.  OSHA Citations: must be posted for three days or until violation is abated whichever is longer, at or near each place a violation has occurred or where the citation(s) is visible.
 
Petition for standard record keeping variances: Employers must post summaries for petitions for variances from OSHA standards or record keeping requirements.  Petition for modification of abatement: Employers must post for 10 days a copy of petitions for modification of abatement.

Other Comm.

Employers must notify employee representatives of inspections when given advance notice.  With permission OSHA may contact representatives directly.

Employers must give affected employees and their representatives a copy of petitions for modification of abatement or variances from record keeping or standards.  At job hire and annual after hire, employees must be told where medical and exposure records are kept, who is responsible for keeping and providing access to those records, and what rights of access to these records employees have.  Employers must give employees or representatives copies of exposure or medical records within 15 workdays of the request.

Penalties

Civil: Up to $7000 fine for each non-serious and serious violation; up to $70,000 for each willful or repeat violation Criminal: Up to $10,000 fine and six months in jail for first offense in which an employer’s willful safety violation causes an employee’s death; up to $20,000 and one year in jail for the second offense.

Enforcement and Administration

OSHA can enter and inspect any workplace by the OSH Act, with or without advance notice to the employer.  However, inspections must take place “at reasonable times, within reasonable limits, and in a reasonable manner.”  OSHA generally chooses to inspect a workplace based on the nature of the business, employee complaints, or random selection.  OSHA also can request the National Institute for Occupational Safety and Health, an agency of the Department of Health and Human Services, to inspect a workplace for environmental hazards.

What is Workplace Violence?

Any physical assault, threatening behavior, or verbal abuse occurring in the workplace. The workplace may be any location either permanent or temporary where an employee performs any work-related duty. This includes, but is not limited to, the buildings and the surrounding perimeters, including the parking lots, field locations, clients’ homes and traveling to and from work assignments.

Types of Workplace Violence.

Generally, workplace violence is broken down into 5 categories:

• Violence against bystanders at a robbery or other commercial crime.
• Violence against law-enforcement and security officers.
• Domestic and misdirected affection cases.
• Employer-directed situations (targets may be supervisors, managers, co-workers).
• Terrorism and hate crimes.

The mechanics of these acts include but are not limited to: Physical assaults; Beatings/stabbings; Shootings; Rapes; Attempting to cause physical harm, (i.e., striking, pushing, or other aggressive acts against another person); and verbal threats of harm either actual or implied.

How big is the Problem?

The most common form of workplace violence is simple assault, with over 1.5 million cases reported each year. This is followed by an estimated 396,000 aggravated assaults and 51,000 sexual assaults each year. Homicides account for nearly 1,000 workplace deaths each year.

The Department of Justice, estimates that workplace violence will impact over 500,000 employees and result in 1,175,100 lost workdays each year. Further, the resulting lost wages will cost employers $60 million. The un-measurable factors of lost productivity, legal expenses, and property damage may push actual costs to the employer into the billions of dollars.

According to the Bureau of Labor Statistics almost two thirds of the non-fatal assaults occurred in service industries, such as nursing homes, hospitals, and residential/social care facilities; while retail establishments account for fifty percent of the homicides.
Regulations

The Occupational Safety and Health Administration (OSHA), has developed guidelines to assist employers in dealing with the threat of workplace violence. These guidelines, while not a new standard, are a recommendation for preventive actions employers should take. From an enforcement standpoint, the OSH Act of 1970, in section 5(a)(1) holds that the employer “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 employees;” which references all hazards including workplace violence.

Regardless of motivation, an employer needs to address the potential for workplace violence. The most effective programs contain four key elements.

Management Commitment and Employee Involvement

In order for any prevention program to be effective, management must clearly support the program. This commitment provides the motivation for the front-line supervision and employees, to make the program work.

Key elements in this commitment are:

• Providing the employees with a system to present and correct workplace safety and health issues.
• Supporting the front-line supervision in the ongoing training process.
• Providing to all employees a clear and concise policy on workplace violence.
• Providing systems whereby management and labor are both accountable for the effectiveness of the program. This includes metrics for performance and corrective action.

The written program should clearly outline the responsibilities for both the employer and the employee. Additional areas that are critical for program success are:

• Language that clearly defines the employers policy of zero-tolerance for workplace violence, verbal and nonverbal threats and related actions;
• Outlines the process by which employees can report acts or alleged acts of workplace violence;
• Clearly prohibits any punitive action against employees who report workplace violence;
• Provides the corrective action steps that management will take to address reports of violence. This includes the investigation process, the formal review, and possible actions upon confirmation of a policy violation.The policy should also outline a comprehensive plan, whereby the employer will continually enhance its efforts to prevent workplace violence.

Worksite Analysis

The worksite analysis is a step-by-step review of all aspects of the workplace. This review is focused on looking for potential security breaches that would allow for or enhance the likelihood of workplace violence.

Develop a Threat Assessment Team (TAT)
A Threat Assessment Team is a group of motivated employees, empowered by the employer to review all aspects of the workplace and recommend corrective actions to prevent workplace violence. The team is generally comprised of representatives from senior management, operations, human resources, security, and safety.

In performing the assessment, the team will review both records of the company and the physical work environment to determine the threat level. This review should include at a minimum:

• Analyzing and tracking records. (OSHA Logs and Worker Compensation Loss Reports are a good source for this information.)
• Monitoring trends and analyzing incidents. (Diagram incidents of workplace complaints and injuries. Often this will lead a team to a trouble spot.)
• Screening surveys. Survey employees to determine if they are aware of hot spots in the workplace. Compare overtime records to disciplinary actions. Often the increase in hours worked will result in stressors, leading to employee relations problems.
• Analyzing workplace security. Get out of the office and into the workplace. Walk the floors and take an outside tour, both of the building and the property line. Visit the workplace during all shifts and at various times. Often an after hours threat is not evident during the normal production shift.

Further, the team should perform a physical audit of the worksite. This audit must include a review of the employee’s movements, and facility access. Particular attention should be paid to parking areas, outside break locations, and late night access to the facility.

Hazard Prevention and Control

Prevention and damage control are full-cycle activities.  Meaning, to be effective, prevention activities (Threat Assessment) must be continually reevaluated and adjusted.

Preventive Actions
During the threat assessment, the team will find areas that have a higher risk than others. Actions, which an employer can take to reduce risk, are:

• Alarm systems and other security devices;
• Metal detectors;
• Safe rooms for employees to use during emergencies;             
• Closed-circuit video recording for high-risk areas; and
• Barriers between the public and employees, such as walls, glass, and locked doors.

Post Incident Preparedness
While the intention of every employer is to prevent acts of violence in the workplace, it is critical that every employer be prepared to handle the post mortem of an incident. Key areas of concern following a workplace violence incident are:

• Getting medical care for injured victims. Ensure that the facility is properly equipped to handle basic first aid. Develop an Emergency Action Plan to assist the employees in handling incidents and interfacing with the local responders.
• Secure the premises – safeguard evidence.  Develop a procedure to secure the facility from unauthorized persons.  Include in that procedure, the steps to be taken to transfer evidence to local authorities.
• Prepare an incident report immediately.  Establish a company policy on Press Releases.  DO NOT ALLOW THE PRESS ACCESS TO THE FACILITY.
• Arrange appropriate psychological treatment for victims.  A pre-existing EAP will be a valuable tool should an incident occur.

Additionally, make contact with local crisis counselors in advance and arrange for their response should an incident occur.

Training and Education

All employees should receive training on the scope and intent of the workplace violence policy. Supervisory employees should receive in-depth training on recognizing potentially violent employees, and conflict resolution. The person delivering the training should have a sufficient background in workplace violence to present the material in positive fashion, while focusing on the seriousness of the matter.

Training should include an emphasis on alternate dispute resolution methods, and de-escalation techniques. More importantly, every training session must re-enforce the company’s “zero tolerance” commitment.

What does it mean to be “employed at-will”?

It means that you are free to terminate an employee at any time, for any reason or for no reason at all.  Accordingly, an employee cannot sue you for firing him unless he can articulate a limitation on your right to discharge.  In most states, the limitations are narrowly tailored.  For example, employers are generally prohibited from discharging employees when the discharge violates some broad public policy.  That is, an employee may be allowed to sue his employer if the employee is terminated for refusing to commit a crime or prevented from complying with a statutory duty.

Of course, an employer may enter into a contract with an employee and therein voluntarily agree to limit its right to discharge an at-will employee.  In those instances, the employee may sue the employer for breach of contract if the employer fails or refuses to abide by the terms of the contract.  The nature of the employee’s claim will depend on the nature of the contract in question.  In some instances the contract will be express (e.g., a written agreement between the parties) and in others it will be implied (e.g., an obligation that arises from an employee manual or other acts or statements made by the employer).

At will employees may also sue their employers if a statute specifically provides for a right of action.  Thus, for example, an employee may sue his employer if his termination violates an applicable antidiscrimination statute, like Title VII of the Civil Rights Act of 1964.

The importance of an at-will disclaimer that employee manual

As mentioned above, an employer may inadvertently limit its right to discharge at will employees by making promises to employees in an employee manual.  For example, in some states, courts have recognized the right of an employee to sue an employer when the employer fails or refuses to abide by the terms of a progressive discipline policy.  These types of claims can generally be overcome if the employee handbook contains a clear statement that all employment is “at will” and that the employer is free to discharge, with or without cause.

There is no single federal law regulating privacy issues for private employers on a broad basis; however, there are various federal laws that regulate specific aspects of an employee’s privacy that arise during the course of employment.  There are also state and common law (court-created law) considerations that impact workplace privacy.

As a general rule of thumb, for an employer to try and avoid invasion of privacy complaints by employees they should ensure that:

• Any information gathered during the employment relationship serves a businesses’ “need to know”,
• The information is gathered by the least intrusive method,
• The information is maintained in a confidential manner designed to prevent unauthorized access,  and
• That information is not used “unfairly” by the employer or a third party.

When dealing with any of the following areas, be aware that there are ramifications with regard to an employee’s privacy:

• Personnel Records/Files (see Sample Human Resource Records Policy)
• Medical Information
• Credit and Financial Information
• Education Information
• Wire, Oral and Electronic Communications
• Alcohol and Drug Abuse diagnosis, treatment or other information
• Alcohol and Drug testing
• Personal History Questionnaires
• Surveillance and Investigations
• Using an employee’s name and/or likeness without their written permission
• Employment Application
• Responding to requests for employee information by third parties
• Searches (body, personal property, or company property)
• Anti-Trust Law Compliance
• Disclosure of Union Activity
• Off-duty Activity or Behavior (i.e. Smoking)
• Business Ethics (see Sample Business Ethics And Conduct Policy and Acknowledgement Page)
• Confidential Information Leaks (see Sample Confidential Information Policy)

General Record Keeping Requirements in U.S. Workplace Law

The number in the grid below represents the maximum number of years any federal law requires keeping the type of records described in the left-hand column.

Please Scroll Down!