Occupational Safety and Health Laws
in the United States, Mexico and Canada: An Overview

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Acknowledgements

This report was prepared under the direction of Charles N. Jeffress, Assistant Secretary for Occupational Safety and Health (OSHA), Ross Eisenbrey, OSHA's Director of Policy, and Craig Obey, OSHA's Director of Intra-governmental Affairs. Jacquelyn DeMesme-Gray, OSHA's Coordinator of International Affairs, Vivian Allen, OSHA's Senior Program Analyst, and Renee Lewis, OSHA's Program Assistant, coordinated, edited and facilitated its development and review by each country. The report was researched and written by the staff of Dennison Associates, Randy Rabinowitz, Mark Hager and Jennifer Costello.

We would like to thank OSHA's National Office Headquarters Staff and the United States Department of Labor's Office of the Solicitor for their invaluable assistance. We would also like to thank the National Administrative Offices (NAO) of the United States, Mexico and Canada for their guidance and cooperation. We are especially grateful to the Secretary of the United States' NAO, Irasema Garza, and her staff for their wonderful support.

The United States report reviews salient features of U.S. occupational safety and health law, including workers' compensation. The federal Occupational Safety and Health Act (Act), administered by the Occupational Safety and Health Administration (OSHA), is the chief law regulating workplace safety and health in the U.S. Except for state and local governments and several particular industries, the Act covers all employers with employees. States may administer their own federally-approved workplace safety and health plans if they are as effective as the federal program.

Many standards have been incorporated from federal standards or voluntary industry standards pre-dating the Act. The main contemporary standard-setting procedure is by notice and comment. Subsequent to hazard identification and expert discussion, draft standards are published for public comments, which are considered in development of the final rule. Standards must address significant workplace risks, and compliance must be economically and technologically feasible within the affected industry. Final standards may be and frequently are challenged in federal appeals courts which review the legal and factual basis for regulation.

Employers may be penalized for violating specific standards and/or a general duty under the Act. The chief enforcement mechanism is work site inspection, which under the U.S. Constitution may not be performed without either employer consent or a warrant. Fines, which vary with severity of violation, along with employer size, good faith, and history of noncompliance, may be levied for all violations except de minimis ones. Employers may contest citations in an adversary hearing before an independent administrative tribunal -- Occupational Safety and Health Review Commission -- whose rulings are subject to judicial review.

Workers' compensation systems, operated at the state level, cover most workers for work-related injuries and diseases. Beneficiaries may seek reimbursement for medical expenses and lost income, but not for noneconomic damages like pain and suffering. They need not prove negligence to claim benefits, but coverage precludes tort suits for damages against employers. Workers' compensation insurance premiums, paid by employers to private insurers or to state-run funds, may be experience-rated to create some employer incentive to reduce hazards.

The Mexico report reviews salient features of Mexican occupational safety and health law, including workers' compensation. The relevant law is federal, though some enforcement is administered at state and local levels. Recent reform initiatives attempt to improve effectiveness and efficiency in both standard-setting and compliance policy.

Technical standards are issued through notice-and-comment rulemaking. After hazard identification and expert discussion, draft standards are published for public comments, which are considered in formulation of the final rule. Draft standards must be accompanied by a regulatory impact statement, including a cost-benefit analysis for standards involving substantial economic impact.

Employer safety and health duties stem from several legal sources. Important among those duties are compliance with standards, operation of safety and health programs, and support to legally mandatory joint safety and health committees operating at the workplace level.

Compliance policy features three approaches: government inspection; private sector verification units which may inspect and report on compliance; and joint committees charged with monitoring compliance, assisting inspectors, and improving risk prevention. Unlike the U.S., Mexico seldom imposes first-violation penalties. Penalties are mainly for imminent dangers and failures to abate previously highlighted violations. Penalties turn on gravity of offense, intentional or repeated nature of violations, and company financial capacity. Maximum penalties for violations of technical standards have been enhanced in recent reforms. Employers enjoy certain due process right in penalty proceedings. They may contest charges and secure administrative and judicial review of rulings.

A federal fund provides workers' compensation benefits for medical expenses and lost income, without any requirement of negligence by any party. Employers pay mandatory premiums, experience-rated to create a risk-reduction incentive, into the fund. Private insurers play no role.

The Canada report reviews salient features of Canadian occupational safety and health law, including workers' compensation. The federal government regulates a specific set of industries, whereas most sectors of the economy fall under provincial jurisdiction. Each province regulates safety and health directly, with broad similarity among provinces. Both federal and provincial laws stress internal responsibility for improved safety and health among workplace parties. The Government assists the parties in achieving these goals and initiates enforcement when internal efforts fail. The laws generally cover all employers and extend to other parties at the work site, such as owners or suppliers.

Standards are developed by consensus committees representing employer and employee interests. Authorities commonly rely on these consensus standards to set protective goals. Compliance policy relies mainly on employer-employee joint committees and on employee representatives to identify and correct hazards. Employers must comply with both specific standards and a general safe-workplace duty. Employees and supervisors also bear enforceable duties.

With its reliance on workplace parties to reduce hazards, Canadian laws feature a less adversarial governmental enforcement role, compared with U.S. law. Inspections may be carried out without warrants or prior notice, and inspectors commonly issue abatement orders but do not give priority to levying fines. Violations of standards and abatement orders may be sanctioned by means of prosecution. Abatement orders may be administratively appealed, but judicial oversight is minimal.

An important feature of Canada's workplace safety and health policy is the joint committee found in most workplaces. Often legally mandatory, joint committees are composed equally of employer and employee representatives. They play various advisory roles in identifying and reducing hazards.

Canadian law gives employees strong rights against adverse treatment for refusing dangerous work. Generally, workers with reasonable fear of danger may refuse work even if the risk is not imminent.

As in the U.S., Canadian workers' compensation law provides medical and lost-income benefits without requiring proof of negligence and precludes suits for damages. Coverage is furnished through public funds and private insurers play no role. Premiums are experience-rated so as to create a hazard-reduction incentive.