Legal Issues in the Workplace.

Most private employers are covered by various federal and state anti-discrimination laws.  While State fair employment practice statutes vary with regard to employer coverage, companies that employ more than a minimum number of people are prohibited from discriminated on the basis of certain protected traits, such as age, gender, race, religion, national origin, disability, and ancestry.  Similarly, employers with 15 or more employees are also subject to Title VII of the federal Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 (“Title VII”),  which prohibits discrimination on the basis of gender, race, religion, and national origin.

The federal Age Discrimination in Employment Act (ADEA), which applies to employers with 20 or more employees, prohibits discrimination in employment decisions based on age, and the federal Americans with Disabilities Act (ADA) prohibits discrimination in employment on the basis of actual or perceived disability.  In addition, there are other laws which prohibit discrimination based on gender in wages and salary and for recipients of federal funds.

Most of the foregoing laws prohibit intentional discrimination as well as policies and practices which may be facially neutral, but which have a disparate or disproportionate impact on minorities.

The Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces most of the federal laws prohibiting discrimination in employment.  States that have adopted analogous antidiscrimination statutes also have agencies that enforces those statutes (for example, the New York State agency is called the New York State Division on Human Rights).  These agencies routinely issue regulations, enforcement guidelines, and interpretive guidance regarding specific issues, including prohibited inquiries of applicants and employees, use of medical examinations and other tests, forms of reasonable accommodation for disability, sexual harassment, use of release agreements in employment separations, and the like.  Because these laws and regulations can impact on virtually every employment decision, employers would be wise to thoroughly review these issues, conduct periodic training of employees, particularly managers and supervisors, and consult with legal counsel regularly.

The EEOC has issued guidelines for employers who want to avoid running afoul of the ADA and which attempt to help employers to understand two things: (1) what kinds of questions they can ask job applicants at the “pre-offer” stage, and (2) what kinds of examinations they can require of job applicants at the pre-offer stage.  The guidelines also discuss the parameters of “post offer” inquiries and examinations.  These guidelines can be obtained from the EEOC and are entitled “Enforcement Guidance: Pre-employment Disability-Related Inquiries and Medical Examinations under the Americans with Disabilities Act of 1990, ”  EEOC notice 915.002 (May 19, 1994).  In the last decade, the EEOC has issued guidelines which offer employers assistance in interpreting and implementing the ADA, ADEA, and other anti-discrimination laws.  Most of these can be obtained on-line.

In June, 1998, the United States Supreme Court issued two opinions addressing an employer’s liability for sexual harassment in the workplace—Faragher v. City of Boca Raton, Fla., 118 S. Ct. 2275 (1998), and Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998).  Although the Court’s opinion in these two cases left a number of issues to be resolved by the lower courts, the Court’s decisions in both Faragher and Burlington Industries unequivocally demonstrate the importance to an employer of developing an effective and fair sexual harassment policy, communicating that policy to company employees, and taking prompt corrective action when sexual harassment is found to have occurred.

Definition of Sexual Harassment

Regulations promulgated by the Equal Employment Opportunity Commission (“EEOC”) defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or (3) such conduct has the purpose or effect or unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”

There are two specific forms of unlawful sexual harassment, including (1) quid pro quo harassment, and (2) hostile working environment harassment, both of which are described below.  Although the line between these forms of harassment has been blurred by recent Supreme Court decisions, they continue to be important elements of any sexual harassment analysis.

Quid Pro Quo Sexual Harassment

Quid pro quo harassment occurs when an individual’s submission to or rejection of sexual advances or conduct of a sexual nature is used as the basis for employment decisions affecting the individual or the individual’s submission to such conduct is made a term or condition of employment.  Such behavior must be engaged in by an individual with the power to effect the employment action or decision affecting the employee. Actionable sexual harassment can arise out of consensual sexual relationship between a supervisor and a subordinate employee, generally in situations in which the consensual relationship ends and adverse employment consequences befall the subordinate.

Hostile Environment Sexual Harassment

“Hostile work environment” sexual harassment exists when unwelcome sexual advances, request for sexual favors and other verbal or physical conduct of sexual nature has the purpose or effect of unreasonably interfering with an individual’s work performance or creates an intimidating, hostile, or offensive working environment.  29 C.F.R. § 1604.11 (a)(3).

  In order to establish a hostile environment sexual harassment claim, an employee must show the following:

•  the harassment was unwelcome
•  the harassment was based on gender
•  the harassment was sufficiently severe or pervasive to create an abusive working environment
•  the employer had constructive or actual knowledge of the harassment
•  the employer took no prompt and remedial action

To determine whether an environment is hostile or abusive, a court will look at all the circumstances, which may include the following:

•  the frequency of the discriminatory conduct
•  the severity of the discriminatory conduct
•  whether the discriminatory conduct is physically threatening or humiliating or a mere offensive utterance
•  whether the discriminatory conduct unreasonably interferes with an employee’s work performance

An employee is not required to show that he or she suffered psychological injury as a result of the hostile or abusive work environment.  The Supreme Court uses the “reasonable person” standard—reasonable person must find the environment hostile or abusive, and the victim must subjectively perceive the environment to be abusive.

First and foremost, all complaints need to be taken seriously and put into writing to prevent future litigation. Sexual harassment policies should include instructions on complaint procedures. This should include ways to circumvent the supervisor, in case the supervisor is the one accused of sexual harassment. A prompt investigation should be affirmed in the policy. The alleged victims will feel more comfortable coming forward if the investigation will be made with confidentiality, dignity and respect.

Recommended Questions To Ask When Investigating Sexual Harassment Complaints

?  Who harassed you? (The more senior the person, the greater the chance the firm may get sued.)

?  What did he/she do?  (Get the specifics; generalities are not sufficient.)

?  When did he/she do it? (Find out if there have been repeated offenses.)

?  Where did it happen? (On or off company property is a key fact.)

?  Were there any witnesses? (Try to corroborate the employee’s story; be careful not to lead witnesses.)

?  Who else did you tell? (The EEOC will ask who else knew about the alleged harassment.)

?  Who else has been harassed? (Find out if the employee knows of anyone else who has suffered similar harassment.)

?  What did you do and say in response?  (Again be specific; generalities are not sufficient.)

?  What do you want done? (Document the answer in the event the victim later claims that he or she requested a different action.)

?  Would you like to see a counselor? (Specifically recommend that the employee see the health insurance covered counselor or a service of the Employee Assistance Program. If the employee refuses, document the refusal in writing.)

What to do next?

•  Review evidence.

•  Interview witnesses.

•  Interview co-workers in the department to assess overall work environment.

•  Interview alleged harasser.

•  Determine the validity of the alleged harassment.

•  If found valid, follow the appropriate disciplinary action or sanctions.

•  Document all information.

Definition of Disability Under the ADA

“Disability” is defined in the ADA broadly to include any physical or mental disorder or impairment which substantially impairs an individual from performing a “major life activity,” including the ability to work.

  In order to be covered by the ADA, an individual with a disability also must be “qualified.”  That is, the individual must satisfy the prerequisites of the job (skills, education and other job-related experience), and must be able to perform, with or without reasonable accommodations, the job’s essential functions.  The ADA identifies and prohibits discrimination against three categories of qualified individuals with disabilities:

(a)  individuals with a disability

(b)  individual with a record of disability, protecting individuals who have history of, or have been misdiagnosed as having, a disability; and

(c)  individuals who may not actually have a mental or physical disorder but who, based on fear, myth, or stereotype, are regarded as disabled.

Reasonable Accommodation Under the ADA

The ADA requires employers to modify jobs, the work environment, and the manner or circumstances in which jobs are customarily performed to enable qualified individuals with disabilities to enjoy equal employment opportunity.  Such job modifications or adjustment are called “reasonable accommodations.” An employer need not provide such accommodations, however, if they would pose undue hardship.

Examples of Reasonable Accommodation

* making facilities accessible to and usable by individuals with disabilities;
* job restructuring; 
* part-time or modified work schedule;
* flexible leave policies;
* acquisition/modification of equipment and devices;
* making employer-provided transportation accessible;
* providing qualified assistants;
* reassignments and transfers.

Undue Hardship

“Undue hardship” refers to an accommodation that would be unduly costly, extensive, or substantial, or that would fundamentally alter the nature of the business.  Even if a particular accommodation would impose undue hardship, however, the employer must consider whether there are alternative accommodations that would not impose such hardship.  The undue hardship exception is a narrow one.  An employer should not refuse accommodation on the basis of undue hardship hastily.

“Coverage of the Occupational Safety and Health Act of 1970 extends to all employers and their employees in the 50 states, the District of Columbia, Puerto Rico, and all other territories under the federal government jurisdiction.”  The Act defines an employer as any “person engaged in businesses affecting commerce who has employees, but does not include the United States or any state or political subdivision of the State.”

The OSHA Act applies to employers and employees in the diverse fields such as: Manufacturing; Construction; Agriculture; Law and Medicine; Charity and Disaster Relief; Organized Labor; Religious groups who employ; Private Education; secular workers.

The OSHA Act does not apply to employers and employees in the following fields: Self-employed persons; Farms where only immediate members of the farmer’s family are employed; Mining, nuclear energy, nuclear weapons, and transportation industries under federal status.
   
Setting standards, conducting workplace inspections to attest the compliance with the standards and providing a safe workplace are the primary functions of OSHA. The Act’s expectations make employers aware of standards that apply to the company, eliminate hazardous or unsafe practices in the workplace, and comply with the standards.

Following the medical attention given to the employee, a prompt investigation of the accident should be conducted. Conducting accident investigations serves three purposes for employers. The first purpose is making employers aware of unsafe conditions. The condition of safety may be improved by identifying training requirements, updating equipment, and by instilling proper job procedures, or altering job design.
                                   
The second purpose of investigating accidents is to prevent fraudulent claims of injuries. Employers who conduct consistent and thorough investigations dissuade employees from making false workers’ compensation claims.

Record keeping is the third and possibly the most important purpose of investigating injuries. Companies with less than 10 employees are not required to document injuries if there is a good safety record already in place. Other businesses need to fill out an annual record of accidents. This requires documentation in case of subsequent inspection from OSHA.

The Occupational Safety and Health (OSH) Act covers virtually all employers, except those operating states with plans approved by the Occupational Safety and Health Administration (OSHA).  Employers covered by the OSH Act must follow the standards, regulations, and guidelines applicable to their particular industry.

OSHA’s general industry standards and construction industry standards cover mutually applicable standards, such as recordkeeping, accident reporting, the general duty clause, noise exposure, and personal protective device equipment.  Other industry standards are mutually exclusive, such as standards covering AIDS and excavating and trenching.

General duty clause.  Even when no OSHA standard covers a particular situation, employers still have a general duty under the act to provide their employees with a safe and healthy place to work.  OSHA also uses a general duty clause as a temporary enforcement mechanism until it can develop a specific standard covering a particular situation.  For example, OSHA used the general duty clause to cite employers for failing to follow federal Centers for Disease Control and Prevention AIDS guidelines for health care workers until it developed an AIDS standard.

The law defines a safety or health hazard as something that “causes or is likely to cause death or serious physical harm.”  Although Congress said that the general duty requirement is no more than the duty of every citizen to exercise reasonable care, the act itself does not mention “reasonable care.”

Specific Requirements.  The federal act requires employers to fulfill the following responsibilities:

• Make certain that the organization’s personnel have in depth knowledge of the OSH Act, its administration, and new developments.  Consider appointing a health and safety specialist.  Keep copies of applicable OSHA standards, and give copies to employees upon request.
• Have someone or groups within the company analyze OSHA standards to determine their significance to the business’ operations and to make certain the employer remains in compliance.
• Critically examine existing safety and occupational health conditions at all facilities.  Identify hazards and eliminate or reduce them.  Develop job hazard analyses for all operations.  Use warning signs to warn employees of hazards.
• Conduct workplace walk-throughs to ensure employees have, use, and maintain proper personal protective equipment and other safety tools and equipment.
• Establish safe work procedures and work rules, and periodically review them.  Train employees in these procedures and rules, and establish disciplinary procedures for employees who fail to abide by them, thus exposing other employees to danger. 
• Analyze and strengthen safety and health programs where necessary.  Set specific safety goals for the organization, and regularly measure progress toward these goals. 
• Cover occupational safety and health in employee publications and annual meetings.
• Investigate accidents to determine their cause, and change the condition or process to reduce likelihood of repeated accidents.
• Report to OSHA within 48 hours all accidents causing death of any employee or hospitalization of five or more employees.
• Document all recordable injuries and illness on OSHA form 301, in addition to your general accident reporting process.  Include information from the form 301 on the form 300 in greater detail.  Post total annual injuries and illnesses from Form 300 in a prominent location each year from February 1 to March 1 using the form 300A Summary Notice.  Allow OSHA or National Institute of Occupational Safety and Heath (NIOSHA) to review records upon demand.
• Monitor Hazards and keep employee medical records for possible employee exposure to noise and hazardous substances.  Conduct medical examinations as required.
• Cooperate with OSHA inspectors when they conduct workplace inspections.  Allow them to inspect records, and give them names of employees or employee representative to accompany them on their inspection.  Do not retaliate against employees for exposing hazards to the inspector.
• Post a copy of the OSHA Act poster, which informs employees of their rights under the act, at a prominent location.  Post citations at the site where the violation occurred to warn employees of the danger.  Also post petitions for modification of abatement and variances. 
• If contesting an OSHA citation, respond within fifteen days of receiving citation.
• Abate alleged violations with the specific time period or apply for modification of abatement.

Although the act also holds employees responsible for obeying federal health and safety standards, the act does not set penalties for employees who disregard OSHA standards, regulations, and guidelines.  Employers ultimately bear the responsibility of ensuring employee compliance – and the fines for noncompliance.

Specific employee rights include the following:

• Employees who believe unsafe conditions exist may request an OSHA inspection by filing a complaint at the nearest OSHA office.  OSHA will keep the employee’s identity confidential.  Employees can also file formal complaints on the Internet by using the “Workers’ Page” available on OSHA’s homepage at www.osha.gov.  Complainants must enter their name, telephone number, their employer’s name, and a description of the hazard and its location.  The form is then automatically transmitted for follow-up to the appropriate OSHA office.
• Employees or their representative can accompany OSHA inspectors on the inspection of the workplace.
• Employees may participate in OSHA conferences, OSHRC and court proceedings, or other activities.  Employees may also respond to employer applications for variances, modifications of abatement, and contest of citations.
• Employers cannot discharge or discriminate against employees for exercising their rights under the act, including the right to file a complaint charging unsafe or unhealthy conditions in the workplace.
• Labor Unions have the right to comment on proposed OSHA standards, challenging the validity of standards, and sue on behalf of employees in cases of unresolved imminent danger situations.

Who must keep Records?

Employers must keep occupational injury and illness records unless exempted by OSHA.  The agency has carved out exemptions for small employers and for employers engaged in trades that the agency deems relatively safe.

OSHA requires employers of 11 or more employees in the following industries to keep records of occupational injuries and illnesses:

• agriculture, forestry, and fishing (SICs 01-02; 07-09),
• oil and gas extraction (SICs 13; 1477),
• construction (SICs 15-17),
• manufacturing (SICs 20-39),
• transportation and public utilities (SICs 41-42; 44-49),
• wholesale trade (SICs 50-51),
• building materials and garden supplies (SIC 52),
• general merchandise and food stores (SICs 53-54),
• hotel and other lodging places (SIC 70),
• repair services (SICs 75-76),
• amusement and recreation services (SIC 79), and
• health services (SIC 80) (OSHA, A Brief Guide to Recordkeeping, Requirements for Occupational Injuries and Illnesses).

Exemptions from certain record keeping requirements.  Low-hazard industries.  OSHA has exempted specific industries that the agency deems to be low hazard, like banks and insurance companies, from the duty to maintain OSHA records.

The exempt low-hazard industries are classified in Standard Industrial Classifications (SIC) 55-65, 72-73, 78, 81-84, 86, 88-89.  These industries include retail trade; bar and restaurants; financial; insurance, and real estate; personal and business services; motion pictures; legal, educational, and social services; museums, galleries, etc.; membership organizations; engineering, accounting, research, management, and related services; and private households (29 CFR&1904;.16).

Fewer than 10 employees.  Employers who have fewer than 10 full – or part-time employees at all times during the previous calendar year are exempt from OSH Act recordkeeping requirements. (29CFR&1904;.15).  If an employer has more than one establishment with combined employment of more than 10 employees, the employer must keep records for all individual establishments.

• No Exemption for Reporting, Posting: Even if exempted from recordkeeping, an employer must display the OSHA poster and report to OSHA within 8 hours of any accident that results in one or more fatalities or the hospitalization of three or more employees.
• No Exemption if Selected for Survey: Even if exempted from recordkeeping, an employer must maintain an OSHA form 300 if it is selected by OSHA to participate in OSHA’s statistical reporting program.
• Interaction with Other Laws: Employers subject to injury and illness recordkeeping requirements of other federal safety and health regulations are not exempt from OSHA recordkeeping.  However, OSHA will allow use of records used for other recordkeeping obligations, as long as the forms contain the equivalent information.

Employers covered by OSHA record keeping requirements must maintain the following records:

OSHA Form 300 & 300A: ‘Log and Summary of Occupational Injuries and Illnesses’.  Employers subject to the OSH Act’s recordkeeping requirements must compile and post at each of their establishments an annual log and summary of all ” recordable occupational injuries and illnesses” (defined below) for that establishment.  The log must be kept on OSHA Form 300 or an equivalent form that is as readable as the OSHA form (29CFR& 1904.2(a)).

An employer must enter each and every “recordable” occupational injury or illness within six working days after notification of the injury or illness.

Logs must be kept on a calendar year basis – January 1 to December 31 (29CFR&1904;.3)

OSHA Form 301: ‘Supplementary Record of Occupational Injuries and Illnesses.’  In addition to the log and summary of injuries and illnesses, employers must also maintain at each establishment an OSHA Form 301, a supplementary record for each occupational injury and illness recorded on the log and summary at that establishment.  This record must be available for inspection within six working days after notification of the injury or illness (29CFR&1904;.4). 

The employer may record the required facts on OSHA form 301 or a form requesting similar information. Required information on the 301 form includes:

• the employer’s name, mailing address, and location if different from the mailing address;
• the injured employee’s name, social security number, home address, age, sex, occupation, and department;
• the place of the accident or exposure, whether it was on the employer’s premises, what the employee was doing when injured, and how the accident occurred;
• a description of the illness or injury, including the part of the body affected, the name of the object or substance that directly injured the employee, and the date of the injury or diagnosis of illness;
• the name and address of attending physician and the name and address of any hospital used; and
• the date of the report and the name and position of the person preparing the report.

The OSHA Form is optional: Workers’ compensation, insurance, or other similar reports are acceptable if they contain all the information required by OSHA Form 301 or if the missing information is added (29 CFR& 1904.4).

CAUTION: OSHA record keeping and reporting requirements differ from those established by various state workers’ compensation laws.  Employers using a state workers’ comp form as a substitution for OSHA Form 301 must prepare a form for each OSHA recordable case whether or not state workers’ comp law requires preparation of the report.

‘Recordable illness and injuries.’ “Recordable occupational injuries or illnesses include:

• Fatalities, regardless of the time between injury and death or length of illness.
• Lost-workday cases other than fatalities, that results in lost workdays – when the injured or ill employee experience either days away from work, days of restricted work activity, or both.
• Nonfatal cases without lost workdays that result in transfer to another job or termination of employment, or require medical treatment (other than first aid) or involve loss of consciousness or restriction of work or motion.  Also included: any diagnosed occupational illnesses reported to the employer but not classified as fatalities or lost workday cases (29 CFR& 1904.12 (c)).

Minor injuries requiring only first – aid are not recordable.

Annual Statistical Survey of Occupational Injuries and Illnesses.  If an employer is selected to participate in the annual statistical survey, the employer will receive (near the beginning of the year) a special form requesting injury and illness data.  Even if covered by a state plan, the employer must complete this form and mail it as directed (29 CFR& 1904.22).  Even employers with fewer than 11 employees are required to complete this form if they are selected for the survey (29 CFR& 1904.17 (c)).

Recordkeeping requirements of substantive OSHA standards.  In many cases OSHA standards set their own recordkeeping, record retention, and record access provisions.  For example, the Air Contaminant Standard requires air monitoring and records of levels of air contaminants, and several construction standards require employers to keep records of operation design and testing.  Be sure to check all applicable OSHA standards for restrictions.

OSHA notes that neither media coverage nor reports to insurance carriers or others constitutes reporting to the agency as required under the regulation.  Use of a fax also does not fulfill the employer’s obligation under the regulation, which is intended to provide OSHA with prompt notification; a fax could go unread for hours or even days.  As a practical matter, however, employers may, in addition to making the required verbal report, fax, mail, or hand deliver the information to OSHA as a back up procedure if concerned about creating a record to demonstrate compliance.

Rule extends for 30 days.  Whether or not an accident is immediately reportable, if it results in the death of an employee or the in-patient hospitalization of three or more employees within 30 days of the incident, OSHA requires that the employer report the fatality/multiple hospitalization within eight hours after learning of it.

When employer is unaware of incident.  The regulation provides an exception if the employer does not learn of the reportable incident at the time it occurs.  In that situation, the employer must make the report within eight hours of the time the incident is reported to any agent or employee of the employer.

Toxic Exposure.  Both the DOL and HHS can require employers to measure and record employees’ exposure to potentially toxic materials, dangerous substances, or harmful physical agents.  Employers may have to make reports to HHS based on these records.

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.