A safe place for all Americans to work in! Few would argue with this concept that congress had in mind when it passed the Occupational Safety and Health Act of 1970. The law applies equally to the rich and poor, the radicals, the liberals, and the conservatives; it is for people of all races, and it knows no religious boundaries.
And yet, in the early years after an enactment of a law which makes it illegal to work in an unsafe place, a general feeling of fear invaded industry. What caused this fear? There were three major areas of concern.
Those large corporations that, for years, had staff members concerned with safety and health problems were now faced with a situation where their compliance to previously voluntary health and safety standards would now be a matter of law. These firms were best equipped to deal with this new situation because, in many cases, it simply meant the investment of money (often hundreds of thousands of dollars) in order to achieve compliance. Not only were their firms reasonably well equipped to deal with this situation, but they also recognized that the cost of any necessary upgrading could be passed on to the consumer.
The second group contested by fear consisted of small businessmen who had been getting by all these many years with either marginal or unsafe working conditions. They recognized this situation and were truly concerned that the cost of upgrading their facilities would be so immense that they might no longer be able to compete and might have to go out of business. This fear made them more determined than ever that ignorance is bliss, and that the less they knew about these new requirements, the happier they would be and the longer they could remain in business. (Vincoli 1997) In the end though, these small businessmen may turn out to be the real losers. Not only may they be cited for safety violations, but by not being familiar with the law they may not even recognize that a provision exists in the act whereby Small Business Administration can make loans (with maximum repayment term of 30 years) to help them upgrade their facilities.
By far, the largest group that was beset by fear was the so-called average businessmen in every part of the country. Through reading their newspaper, or perhaps the journal of their trade association, they recognized that they were required to provide safe and healthy working conditions for their employees. They may even have heard that for every violation cited against them they might have to pay a penalty ranging up to $1,000 per day for each violation while it remained unabated.
To this latter group belonged those architects and engineers charged by law to design those buildings that would become places of employment. Building designers had an everyday exposure to zoning laws and building codes and thus had a general awareness and concern with safety and health. The last consideration had never before had the force of a federal law behind it. Historically, building codes had concerned themselves with the safety of buildings (they should not collapse) and the protection of property. Architects were trained to prevent or minimize unusual things from happening to their buildings.
With the passage of OSHA, building designers were now faced with a new responsibility and a significant potential new liability. They now had to concern themselves with the usual things that occur in the buildings they design. It now became possible that responsibility for a work accident could be placed at the doorstep of the architect if his design failed to comply with OSHA requirements because the owner had been reasonably assured that his architect would design the building to comply with appropriate laws, including OSHA.
The initial fear of the architects and engineers of this potential new liability can, therefore, be easily understood. The larger design firms were able to come to the grips of problems most easily. They designated a member of their staff to investigate and collect data on OSHA requirements and to keep others in the firm advised on them. Most architects and engineers had neither the resources to devote to this new field nor the knowledge of how to obtain the appropriate new information. Those that did pursue the matter found that there was considerable material, printed both by government and by private sources, but it was scattered in terms of its availability and, when they did manage to obtain the data, they were not sufficiently concise for the use by building designers.
It should be clearly understood that the Occupational Safety and Health Act of 1970 applies to all places where people work. It affects more than 57 million workers in some 4.1 million work places across the United States. (Vincoli 1997) Commonplace thinking has led us to believe that occupational hazards occur mainly in factories or other similar industrial buildings. Whereas there may be some truth in this conception, OSHA applies to all places where people work. Office buildings, shopping centers, schools, shipyards, and undertaking establishments, among others, all places where people do work. The Act covers only workers, OSHA does not concern itself with the majority of the people who use these buildings, the shoppers, but only people who may be employed their. An example of this situation concerns several apartment houses that were built in the air rights of a major highway in New York City not long ago. Readings of the quality of air at the building face over the roadway revealed that these buildings were subject to a much higher carbon monoxide intake from the street below than were other buildings which were located at or near the side of the road. OSHA would not concern itself with the thousands of tenants living in this apartment house, but would be concerned with the elevator operators and custodial employees in this building.
The William-Stieger Act, known as OSHA was designed by the president on December 29, 1970, and became effective on April 28, 971. The act covers every employer in a business affecting commerce that has one or more employees
1. The secretary of labor was charged with establishing detailed standards and appropriate enforcement.
2. The National Institute of Occupational Safety and Health, under the Secretary of Health, Education, Welfare, was established. Its principle is to provide research in the field of occupational health.
3. The Occupational Safety and Health Review Commission was established as an Independent Quasi-judicial body to pass upon the appropriateness of the citations and proposed penalties.
4. Provisions were included whereby states were encouraged to assume full responsibility for their own occupational safety health laws, thus removing it from federal enforcement.
Architects and engineers, as well as building operators, will be most concerned with the safety and health standards issued by the secretary of labor.
When congress enacted the OSHA law, It provided for the rapid effect of such safety and health standards:
2. The immediate inclusion of consensus standards generally recognized by the industry
3. Emergency standards under section 6?
When congress enacted the OSHA act it realized that the new Occupational Safety and Health Administration could never promulgate safety and health standards to cover all possible or potential hazards under all conditions that may occur in all types of work environments. To fill this gap in the standards, the OSHA Act contains a general duty clause that requires employers to provide a safe and healthy work place that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. There are certain key elements of the General Duty Clause that must exist in order for the citation under this clause to be considered plausible.
First and foremost the hazard being cited must be a recognized hazard. OSHA cannot expect an employer to protect against hazards that are not recognized as such. Once it is established that the hazard is recognized OSHA must also show that such hazards are causing or are likely to cause death or serious physical harm. If this has not been established, then the citation under the general duty clause is not appropriate. Another aspect of the general duty clause is the feasibility factor. In any citation of the general duty clause, OSHA must show the feasible means of abating the hazard exist.
The requirement to make and maintain certain records related to occupational safety and health has been in place since the OSHA act was enacted. Congress realized that it would be necessary to obtain such information to statistically determine the need for new rule making based on trends in accident clause data. The Secretary of Labor and the Secretary of Health and Human Services were both granted the authority to require employers to make records of employee injury and illness data, to maintain those records for specific periods of time, and to make records available to the Secretaries upon requests. During the first decade of OSHA, these requirements although mandatory, were not strictly enforced on a uniform basis. Even when employers were found to be in noncompliance with the record keeping requirements, OSHA could only fine them once for the violation regardless if there was one failure to comply or many. During the Regan administration, OSHA enacted its egregious policy, which allows the agency to cite each individual?s failure to comply as a separate violation, even if the same standard was at issue in each case. This led to multimillion-dollar fines based on record keeping violations alone.
OSHA holds employers responsible for complying with provisions of the OSHA act, standards, and the general duty cause and other specific regulations. The agency does acknowledge that employers may not always be able to control the actions of employees who sometimes violate standards; employers must still prove that all possible actions were taken to prevent the violation. OSHA will hold employers responsible for compliance in most instances so it is important the employer understands the OSHA requirements and take any measures necessary to achieve compliance. To understand their compliance obligations, employers must first acknowledge that complying with OSHA regulations and standards is neither a selective or objective process. Issues of interpretation, applicability, intent, fairness, and consistency often complicate the compliance process. Unfortunately, while such concerns are being addressed or ignored, the safety and the health of the workers can continue to remain at risk until resolution.
At the time of the enactment, the primary intent of the OSHA act was to ensure the safety of the worker. Congress knew that employees would be an important element in the process and granted them certain rights under the act. Employee rights under the OSHA act include the right to complain about safety and health conditions in the workplace, which affect them. Complaints can be formal or informal, which maybe anonymous phone calls and unsigned letters. Employees also have the right of protection against discriminatory acts for exercising their right to complain. The acts even authorizes OSHA to obtain injunctive and back pay relief for employees who are discriminated against under the act. The act also provides the right of an employee or their designated representative to accompany OSHA inspectors during their walk around inspection of plants, factories, and other work places. Employees can also be interviewed by the inspector with a guarantee of anonymity, without having any company management present. The act describes an employee representative as a union official or labor organization, an attorney for employees, or any other person acting as a bona fide representative. Employees were also given the right to remove themselves from danger under criteria specified by the courts. The rights listed above were placed within the body of the OSHA so that employees could participate in the process of ensuring a safe and healthy work place. Employers should be aware that such provisions exist, since a violation in any of these rights can result in citations, fines, and penalties. Employers should know and understand employee obligations under the act. It is an important note that ensuring safety and health in the work place is not a one sided affair. Employers do bear the majority of the responsibility here, but employees must also do their part.
OSHA enforcement actions are the key to enforcing compliance with the provisions of the OSHA act. Such activities are the only way the agency can truly know the status of the employer compliance inspections are a primary element in the enforcement process while OSHA is Authorized to enter and inspect all workplaces covered by the act, the agency generally inspects less than two percent of these sites in any given year. Because of the limited resources and the fact that OSHA could never really visit all American work locations each year, the agency has established a scheduled priority of inspection activity.
1. Workplace situations that present imminent danger of causing death or serious injury are inspected first.
2. Osha will respond after a catastrophic accident involving a fatality and/or the hospitalization of three or more employees.
3. OSHA will respond to formal employee complaints of alleged safety violations.
4. OSHA will regularly schedule inspections of high hazard industries.
5. OSHA will revisit a previously inspected facility to verify compliance and abatement practices are adequate.