Occupational Safety and Health Laws [Section 3]
Occupational Safety and Health Laws
Under the North American Agreement on Labor Cooperation (NAALC) the United States, Mexico and Canada, as partners, have initiated a joint study on the Occupational Safety and Health Laws in the United States, Mexico and Canada. The purpose of the study is to further understand each country's laws and regulations to promote the development and implementation of maximally protective occupational safety and health programs. This report describes the statutory and regulatory framework governing safety and health in the U.S., Mexico and Canada. This report represents one of many cooperative activities developed between the NAFTA countries since 1991.
To complete this report, the occupational safety and health and workers' compensation laws of the United States, Canadian federal and provincial laws, as well as untranslated versions of Mexican social security and translated versions of Mexican labor law were reviewed. Case law interpreting the Occupational Safety and Health Act of 1970 was also analyzed. Extensive literature searches for monographs and articles analyzing safety and health laws in the United States, Canada, and Mexico were conducted. Canadian safety and health and workers' compensation regulations were reviewed. Each province provided copies of its laws and regulations. Significant Mexican laws pertinent to regulation of safety and health and workers' compensation were also consulted.
In 1970, the U.S. Congress enacted the Occupational Safety and Health Act of 1970 (the Act), the preeminent federal law governing workplace safety and health. Before the Act, states separately regulated occupational safety and health, some more stringently than others.(1) Seeking to eliminate the competitive disadvantages of employers who invested in safety and health compared with those who did not, Congress mandated minimum national standards. It also created three federal health and safety agencies: one to set and enforce mandatory safety and health standards; one to conduct research on occupational hazards and their control; and one to review contested enforcement actions. States continued to administer workers' compensation programs.
The Occupational Safety and Health Administration (OSHA), within the Department of Labor, holds primary policy making and enforcement responsibility.(2) OSHA sets standards, conducts workplace inspections, and issues citations and proposed penalties for violations. It also funds education and training efforts and state consultation programs, monitors state OSHA performance, and coordinates voluntary compliance initiatives.
The National Institute for Occupational Safety and Health (NIOSH), a division of the Centers for Disease Control within the Department of Health and Human Services, is the U.S. government's occupational safety and health research agency.(3) Although NIOSH does not set or enforce safety and health standards, it has the same authority to enter workplaces to accomplish its research mission as OSHA has to conduct inspections.(4) NIOSH also develops nonbinding scientific criteria and recommendations for OSHA's use in standard setting, conducts health hazard evaluations, and provides technical assistance to labor, to management, and to other government agencies.
The Occupational Safety and Health Review Commission (OSHRC) is an independent, quasi-adjudicatory agency that resolves challenges to OSHA citations, proposed penalties, and abatement deadlines.(5) Its cases are usually initiated by employers who object to OSHA's citations. Federal safety and health activities are funded from annual Congressional appropriations. Penalty assessments from citations are not credited to OSHA specifically. Workers' compensation, a state run program, is funded from employer-paid insurance premiums or other employer assessments. Monies from workers' compensation are not used to fund federal safety and health activities, but may enhance state activities.
The Act applies to all employers with one or more employees, except state and local governments.(6) If a state administers an approved state plan, it must protect local government employees.(7) The Act establishes a separate safety and health regime for federal employees.(8)
The Act's reach is subject to several important restrictions. OSHA may not regulate working conditions if another federal agency does so, even if workplace safety and health is only one of that agency's responsibilities.(9) For example, because the Mine Safety and Health Act regulates working conditions in "coal or other mines," mine safety and health lies outside the Act.(10) OSHA authority over vessels regulated by the Coast Guard and over government-owned, contractor-operated, nuclear facilities regulated by the Department of Energy is narrow. Likewise, because the Environmental Protection Agency (EPA) mandates hazard warnings on pesticides, OSHA's authority to limit farm worker pesticide exposure is circumscribed.(11) The preemption of OSHA has been interpreted to limit enforcement of the Act in large segments of the railroad, airline, and trucking industries.(12)
Congress further limits OSHA's coverage through its appropriations power. Since the 1970's, Congress has banned routine inspections of employers with fewer than 10 employees or enforcement of the Act on small farms without temporary labor camps.(13)
The Act preempts state workplace safety and health regulations, but allows states to regain that authority by authorizing federally-approved state plans so long as they are as effective as the federal program.(14) OSHA provides up to 50-percent funding for approved state plans. Today, twenty-one states and two territories operate approved plans covering both public and private sector workers.(15) Two additional states, New York and Connecticut, operate plans covering only public sector employees.
A state plan must meet numerous requirements to secure OSHA approval. It must designate a state agency responsible for occupational safety and health, assure that state inspectors can enter workplaces, provide adequate staff, and cover employees of the state and its subdivisions.(16) In addition, it must implement standards as effective as OSHA's.
Development of a state plan follows several stages. State law must authorize program submission to OSHA.(17) OSHA reviews the program to ensure inclusion of elements needed for an effective program and structural completeness. If compliance is adequate, the plan is approved for a three-year development period.(18) During this time, OSHA and the state may exercise concurrent jurisdiction, but in practice OSHA suspends its jurisdiction.(19) A plan whose actual operations are effective and staffing levels adequate receives final approval. OSHA monitors the performance of approved plans.(20) It may withdraw approval but only after affording the state a hearing to defend its performance.(21)
States may regulate any hazard not covered by an OSHA standard. Where an OSHA standard applies, state law is preempted,(22) unless the state regulates under an approved plan.(23) In such cases, the state's standards must be as effective as OSHA's. State plans may impose standards more stringent than OSHA's, provided they place no undue burden on interstate commerce and are justified by compelling considerations.(24)
There are three types of OSHA standards: national consensus or established federal standards, which could only be adopted under section 6(a) of the Act in the first two years after passage; emergency temporary standards, which are issued under section 6(c); and permanent standards, which are issued under section 6(b).
Under section 6(a), OSHA had authority to adopt existing federal standards and privately established voluntary consensus standards without notice and comment.(25) Before this authority expired in 1973, OSHA adopted hundreds of "consensus" rules as mandatory standards. They represent the majority of OSHA regulations in effect today. Many have not been updated since 1971 and some are out of date.(26)
Section 6(c) authorizes OSHA to issue an emergency temporary standard (ETS) without notice and comment rulemaking.(27) An ETS is an enforceable interim standard that remains in effect for six months. When published, it serves as a proposed permanent standard.(28) A final standard replacing an ETS should be published within six months, but that timetable has proven unrealistic.(29) Courts regard ETS's skeptically because they are promulgated without notice and comment. Five out of six ETS's challenged in court were never permitted to become effective.(30) For this reason, OSHA rarely issues ETS's.
An ETS must be directed toward a "grave danger."(31) Courts have interpreted "grave danger" to mean a life threatening hazard (32) and have suggested it must be one likely to materialize within the six month period that an ETS is in effect.(33) An ETS must also be necessary to protect workers from that grave danger.
OSHA issues permanent standards under 6(b).(34) Standard-setting may be initiated where OSHA finds a new rule warranted or where a private party petitions OSHA for rulemaking. Hazards are typically identified for standard-setting after scientific research or experience indicates a need. OSHA then reviews the issue and meets with interested parties such as labor, business, public health professionals and with other federal agencies like the EPA. It may circulate draft proposed standards or hold public meetings. It may appoint an advisory committee to recommend a standard.(35)
Standards may be adopted under section 6(b) only after notice and comment. OSHA must publish a notice in the Federal Register and allow thirty days for comment.(36) Longer periods are typical. Notices describe anticipated benefits and anticipated economic and technological consequences to regulated firms. If a public hearing is sought, OSHA must hold one before an administrative law judge, allowing testimony by all requesting parties and the opportunity for cross-examination.(37) By practice, OSHA also accepts post-hearing comments and briefs. It then reviews the record and develops a final rule. A final rule must be accompanied by explanations, published in the Federal Register, of how new standards differing from existing consensus standards better effectuate the Act's purposes.(38) The preamble must address significant issues raised during the rulemaking and OSHA's resolutions.(39) Rulemaking should conclude within six months,(40) but courts treat this deadline as precatory.(41) In practice, standards development may span a decade.
Once issued, standards are subject to review in the federal appeals courts. Many standards are controversial and judicial review is frequently sought. Courts require substantial record evidence to support OSHA's factual findings, but allow more leeway for decisions based on policy inferences.(42) Unless a court orders otherwise, standards go into effect while challenges are pending.(43)
The Administrative Procedure Act (APA), the general statute governing agency rulemaking procedures, requires reasonably prompt action by agencies on matters before them.(44) OSHA is sometimes challenged for failing to issue a standard in a timely fashion. Courts have hastened rulemaking in some cases and rejected efforts to speed regulation in others.(45)
Before issuing a permanent standard, OSHA must find that a significant risk exists in the workplace.(46) To evaluate risk, OSHA generally relies on workplace studies or extrapolates from studies of effects in animals or of human exposures above workplace levels.
When regulating toxic or other health hazards posing significant risks, OSHA must reduce significant risk to the extent feasible.(47) For safety hazards, OSHA need not adopt the most protective standard.(48)
Compliance with substance specific health standards usually requires engineering and work practice controls. Though personal protective equipment and biological monitoring may be cheaper, OSHA has found them less effective. The preference for engineering and work practice controls has been upheld by courts.(49)
Standards must be feasible both economically and technologically. A standard is technologically feasible if the most advanced plants usually can meet it.(50) Standards can force industry to develop and diffuse new technology.(51) A standard is economically feasible, even if financially burdensome, if it poses no long-term threat to an industry's profitability or competitive structure. OSHA considers the impact of compliance costs on consumer prices and industry profitability, for both large and small firms, to determine feasibility.(52)
In setting exposure limits for toxins, OSHA may not use cost-benefit analysis because compared with feasibility analysis it generally yields less protection.(53) Although OSHA may not compare the dollar value of risks reduced (lives saved or injuries averted) to the dollar value of compliance costs, it must reduce significant risk so long as such reductions are economically and technically feasible. For safety regulations, OSHA has more flexibility in weighing cost and other factors in setting requirements.(54) Inquiries into significant risk and feasibility must rest on the "best available evidence."(55) Because information about chronic hazards is often imperfect, OSHA may regulate in the face of scientific uncertainty.(56)
Administrative requirements outside the Act affect OSHA rulemaking. The Regulatory Flexibility Act requires OSHA to assess standards for their impact on "small entities" and to explain steps taken to minimize it.(57) Assessments are subject to judicial review.(58) The Small Business Regulatory Enforcement Fairness Act requires OSHA to solicit views from small businesses potentially affected by a standard and to modify it if appropriate.(59) The Paperwork Reduction Act requires OSHA to estimate and minimize recordkeeping burdens. It also authorizes the Office of Management and Budget to determine whether recordkeeping or reporting requirements have "practical utility."(60) In addition, Congress may veto agency rules including OSHA standards through legislation. The agency may not readopt revoked rules.(61)
For any rule with a likely aggregate impact above $100 million or otherwise having significant economic impact, an executive directive requires that OSHA must regulate cost effectively and that costs and benefits be considered to the extent permitted by statute. (62)
Employers must comply with both specific standards and the general duty that workplaces be "free from recognized hazards likely to cause death or serious physical injury."(63) Employer violations may be penalized. Employees are also required to comply with standards but there is no enforcement mechanism against them.(64)
A specific standard is violated when employees are exposed to a regulated hazard the employer knew or should have known about.(65) An employer also is responsible for exposures of employees of other firms on site, if it either created or controlled access to the hazard.(66)
The general duty clause is breached when a firm's employees are exposed to hazards recognized as harmful by the individual employer or its industry that are likely to cause death or serious harm unless all feasible abatement steps have been taken.(67) Employers cannot be cited for general duty violations where a specific standard applies, unless they know the standard provides inadequate protection to employees.(68)
Certain defenses, which an employer has the burden of proving, have been recognized. Noncompliance is excused where compliance would pose a greater hazard than non-compliance, and a variance application has been filed or would be futile.(69) The variance application requirement sharply curtails this defense.
Noncompliance is also excused if due to unpreventable employee misconduct. If the employer can show misconduct that breached safety rules effectively conveyed to employees and uniformly enforced, no violation will be found.(70)
There is no violation if compliance is infeasible. Compliance is infeasible if it is impossible or impedes business performance. Alternative employee protections either must be provided or be unavailable.(71) The infeasibility defense does not apply where compliance is merely difficult or economically burdensome.
Finally, noncompliance is excused on multi-employer work sites for employers who neither create nor control a given hazard.(72) On such sites, it may be difficult to identify the employer capable of abating a hazard or restricting employee access. Traditionally endemic to construction, this issue also arises in manufacturing as firms subcontract tasks formerly performed in-house.(73) An employer who neither creates nor controls a hazard must nevertheless take positive steps to protect its employees from identifiable harm, such as alerting other employers of the hazard.(74) In addition, professionals such as architects or engineers violate the Act if they assume safety responsibility contractually.(75)
OSHA's main enforcement mechanism is work site inspections. There are five types: complaint; general schedule; fatality/catastrophe; imminent danger; and follow-up inspections.
Complaint inspections are generated by written complaints, filed by employees or their representatives, alleging job hazards.(76) General schedule inspections target high-hazard sites. Data limitations constrain their effectiveness. Fatality/catastrophe inspections follow incidents resulting in employee death or hospitalization of three or more employees. Imminent danger inspections follow upon notice from any party of such danger. Follow-up inspections monitor abatement of previously cited violations.
OSHA arrives for inspections unannounced.(77) Upon arrival, an inspector presents United States Department of Labor credentials. Because the Supreme Court has held that employers have reasonable expectations of workplace privacy, the U.S. Constitution prohibits inspections without either employer consent or a warrant.(78) The Constitution further requires that employee complaint inspections be limited to issues raised in complaints.
An inspection begins with an opening conference, in which the inspector explains the inspection's purpose and its scope. The employer may be requested to produce safety and health records. Employee representatives have a right to attend the opening conference with the employer or, if the employer insists, a separate one.
While on site, the inspector conducts a walkaround, which employer and employee representatives have the right to join.(79) If no employee representative is available for the walkaround, as is often the case in non-union facilities, the inspector is expected to conduct interviews with employees.
The initial inspection concludes with a closing conference, in which the inspector informs the employer of violations observed. The employer may explain noncompliance, urging against unwarranted citations. Employee representatives have a right to attend this conference as well, or a separate one if the employer insists.
For observed violations, OSHA issues citations within six months. A citation must identify the standard violated, characterize the degree of the violation, propose a penalty, and set an abatement deadline. The Secretary must cite all observed violations,(80) except for de minimis ones, or else grant a variance for alternative compliance achieving full protections.(81)
Each citation is classed by severity: de minimis, nonserious, serious or willful. De minimis violations are those with no direct relationship to safety and health.(82) No penalty is assessed and there is no abatement duty. Nonserious violations are for hazards affecting health and safety but unlikely to cause death or serious injury. Penalties are discretionary and may reach $7000 per violation, but average approximately $800 per violation.(83) Serious violations are hazards likely to cause death or serious injury.(84) Penalties are mandatory and may reach $7000 per violation. Willful violations denote intentional employer disregard for the Act's requirements or plain indifference to employee safety and health.(85) They carry a mandatory minimum penalty of $5000 per violation, but penalties may reach $70,000.(86) OSHA may levy additional fines for repeat violations, those which present substantially similar hazards to violations affirmed in prior Occupational Safety and Health Review Commission (OSHRC) orders. Daily penalties may be assessed for failure to abate within the time allowed.(87)
The Secretary must consider four factors in proposing penalties: employer size; severity of violation; good faith; and prior violation history. The Act is silent on the weighing of these factors, giving the Secretary discretion. For serious or willful violations, penalties may be levied for each instance of employee exposure. These enforcement actions significantly raise permissible fines, augmenting deterrence.(88) OSHRC is the final arbiter of penalties proposed by OSHA.(89)
The Secretary has unreviewable prosecutorial discretion to withdraw citations, reach settlements, characterize violations, and reduce or eliminate penalties.(90) Though the Secretary must cite all violations and penalize serious or willful ones, cases can be settled on terms established by the parties.
Unless an employer contests a citation, it becomes a final OSHRC order, enforceable in federal court.(91) To bring a contest, an employer must file a notice within 15 working days from receipt of the notice.(92) Contested cases go to OSHRC administrative law judges (ALJs) who have authority to conduct administrative trials. Discovery is permitted. At the hearing, both sides may introduce evidence, call witnesses, and cross examine adverse witnesses. After the hearing, parties may file briefs amplifying their arguments. The Secretary has the burden of proving employer violations. An ALJ decision becomes final 30 days after issuance, unless OSHRC grants review.(93)
OSHRC has discretion to direct cases for review. It may affirm, modify, or reverse ALJ decisions. While an OSHRC challenge is pending, employer abatement obligations are tolled.(94)
Final OSHRC decisions are reviewable in federal appeals courts, which must affirm decisions supported by substantial evidence.(95) OSHRC and the courts are required to defer to the Secretary's reasonable interpretations of safety and health regulations.(96)
Employees may participate in employer-initiated OSHRC challenges by electing party status.(97) But this does not alter the prerogatives of the Secretary and employer to settle matters on whatever terms they choose.(98) Employees may initiate challenges only to the reasonableness of abatement periods.(99) They may not challenge the form of abatement OSHA seeks.(100)
Even when OSHA identifies an imminent danger, it cannot force immediate abatement or removal of employees from exposure. Most employers voluntarily correct perceived imminent dangers. If an employer refuses, the Secretary must obtain an injunction in federal court to change conditions which "could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated."(101) OSHA must demonstrate real risk of injury or death to enjoin an imminent danger.(102) While an imminent danger remains extant, employees have a protected right to refuse work.(103)
OSHA can seek criminal penalties when willful violations of specific standards result in employee deaths.(104) General duty clause violations, even if willful or intentional, are not criminal. Criminal prosecution also may lie against someone who provides advance notice of an OSHA inspection or who falsely reports information to OSHA.(105) Only firms, not individuals, are subject to criminal prosecution.(106) Federal prosecutions under the Act are rare. State prosecutions for crimes like manslaughter and reckless endangerment may also occur.(107)
Because OSHA's limited resources leave most workplaces uninspected, the agency has in recent years explored various cooperative enforcement alternatives. These leverage OSHA's limited resources, offering employers who invest in safety and health a partnership with OSHA.(108) Three main alternative approaches have been implemented either at the federal or state government level.
First, OSHA provides ninety percent of the funds for state projects providing free consultation services targeted at smaller employers in high-hazard establishments.(109) Employers who receive a full service consultation visit, fix identified hazards, but wish to make additional efforts, may seek recognition under OSHA's Safety and Health Achievement Recognition Program (SHARP). SHARP recognizes small employers who meet rigorous standards of safety and health protection by working with their employees to establish and maintain effective workplace safety and health management systems. Work sites that achieve SHARP status receive a one-year exemption from OSHA's general schedule inspections, although they remain subject to complaint and fatality-related inspections and penalties for violations.(110)
Second, OSHA's Voluntary Protection Program (VPP) recognizes employers with exemplary safety and health programs. Employers participating in VPP are exempted from General Schedule Inspections.(111) Employees must agree to their firm's VPP participation. OSHA periodically reevaluates VPP eligibility.
Third, some advocate joint labor-management committees to enhance job safety and health. The National Labor Relations Act (NLRA) prohibits such committees if dominated by management or subject to employer interference.(112) But where employer activity in support of a joint committee is mandated by law or established through collective bargaining, there is no NLRA violation. Committees are permitted in nonunion workplaces if employees select their representatives. Many enterprises have established joint committees through collective bargaining.
Moreover, thirteen states mandate joint committees for some or all employers.(113) Oregon's fatality and injury rates fell sharply after its 1990 requirement took effect. Whether this can be attributed to the joint committee requirement is unclear. Oregon's worker compensation premiums fell by 12.2 percent in 1991, 11 percent in 1992, and 11.4 percent in 1993.(114)
Though employees must comply with OSHA standards and regulations, they may not be cited or penalized for violations.(115) Employees enjoy a right to participate in inspections, exercised most vigorously at unionized sites. They may review relevant standards and the results of exposure monitoring.(116) If an employee files a formal complaint alleging violation of a standard, OSHA must inspect.(117) Employees may accompany inspectors during walkaround inspections and may participate in opening and closing conferences with the employer or separately. If a firm contests violations, its employees may participate by electing party status.(118) Employees may challenge the reasonableness of a citation's abatement date.(119)
Section 11(c) bans discrimination against employees who exercise rights guaranteed by the Act.(120) This ban cannot be enforced directly by employees. They must petition the Secretary to file suit.(121) To prove a violation, the Secretary must show that exercise of protected rights was a substantial cause for an employee's adverse treatment.
Under section 11(c), OSHA has adopted regulations giving employees a right to refuse imminently hazardous work.(122) This right is similar to an employee's NLRA section 502 right to refuse work where there is objective evidence of abnormal danger.(123)
OSHA regulations also grant employees a right to know about hazardous substances on the job and access to exposure information and medical records.(124) Many states also have such right-to-know laws. State laws requiring that employees get information about exposures are preempted by OSHA.(125)
Causes of occupational injury and illness cannot be analyzed without good data. OSHA enforces requirements for employers to record, and in some cases, report work-related injuries and illnesses.(126) Employers may also be required to report injury and illness information to OSHA and the Bureau of Labor Statistics.
About 1.1 million of the 6.5 million employers in the nation are required to maintain workplace injury and illness records. Employers with 10 or fewer workers are not required to maintain OSHA records. Most employers in retail trade, finance, insurance and services are also not required to maintain OSHA records.
Employers must keep a log, posted in the workplace annually, of all work-related injuries and illnesses. All injuries, even minor ones, must be recorded unless no medical treatment or work restrictions result. Employers must report fatalities and accidents hospitalizing three or more employees to OSHA within eight hours.
NIOSH collects, analyzes and disseminates data from various sources including its surveillance programs(127) and laboratory and field research.(128) It disseminates information through its publications and a toll-free information number. It maintains two pertinent databases: a bibliography of occupational safety and health literature (NIOSHTIC) and the Registry of Toxic Effects of Chemical Substances (RTECS).
State workers' compensation systems maintain workplace injuries and illnesses data. Workers' compensation reporting, which captures only compensable injuries such as those requiring medical treatment or lost wages, is narrower than OSHA's. For example, OSHA requires recording of all injuries beyond first-aid cases occurring at the workplace, whereas workers' compensation reporting, which varies by state, usually requires reporting only after three to seven days away from work.
OSHA runs a training institute for compliance officers and the public. It also supports training on designated hazards by grantees. NIOSH funds training of safety and health professionals.
Every state in the U.S. has enacted workers' compensation programs for employees injured on the job.(129) Coverage is no-fault. To obtain benefits, workers need not prove any party's negligence but only that the injury occurred in the scope of employment. Compensation is made exclusive, so employers are immunized from tort liability for injuries to employees, except those inflicted intentionally.(130)
Workers' compensation does not cover all workers. Excluded workers often include the self employed; independent contractors; agricultural, casual or domestic workers; and small firm employees.(131) In 1972, the Report of the National Commission on State Workmen's Compensation Laws recommended that states expand coverage to all employees disabled by their jobs.(132) While many state programs have extended coverage in the last twenty years, coverage remains incomplete.
In theory, most workers' compensation systems compensate all injuries, fatalities, and diseases arising from employment. Claims may be barred by proof of an employee's willful misconduct, failure to use a safety device, and intoxication or drug use. Because workers may fear job loss for filing claims, legitimate claims are often not filed.
Though early statutes usually provided benefits only for "accidental" injuries, coverage has theoretically been expanded to occupational diseases.(133) Occupational diseases are employment-related when disease-causing exposures in the workplace exceed those of the general environment.(134) Chronic occupational diseases, such as those from dust exposure, noise, fumes, and repetitive motion, are covered in principle, but often not in practice.(135) This is so because the science of disease causation is uncertain, employees may not know their diseases are work-related, work-caused diseases may be indistinguishable from everyday diseases, insurers frequently contest disease claims, statutes of limitation sometimes exclude claims for latent diseases, specific diseases are sometimes noncompensable, states may require minimum exposure periods within the state before covering a disease, and so on.(136)
Several states now exclude stress-related or psychological conditions not associated with physical injury.(137) Oregon limits compensation to injuries medically provable by "objective findings," arguably eliminating compensation for many soft tissue and psychological disabilities.
Workers' compensation benefits typically include medical expenses and rehabilitation, partial indemnity for wage loss, and fatality compensation to surviving dependents of workers killed by or on their jobs. Benefits are set by statute or regulation and vary substantially from state to state.
Impairment/wage loss indemnity for total disability is typically two-thirds the pre-injury wage, but no more than the state's average wage.(138) Partial disability indemnity is proportional to degree of impairment or lost earning capacity. Some states terminate benefits after a fixed period, even for recipients still unable to work.(139)
Noneconomic losses like pain and suffering are not compensated. Several types of economic losses, such as lost pensions, deferred compensation, health and other benefits, and costs of care by family members, also go uncompensated. This displaces wage-loss and medical costs onto injury victims and other social systems.(140)
Medical care and rehabilitation expenses are generally compensable, without charge to the injured worker,(141) for as long as treatment is needed.(142) Medical costs have increased rapidly and now represent about 50 percent of total benefit costs.(143) Insurers, regulators, and employers have proposed cost-containment strategies: eliminating certain benefits; expanding employer and insurer power over physician selection and over treatment and return-to-work decisions; developing fee schedules to restrict unnecessary treatment; and merging workers' compensation with employer provided medical benefit plans.(144) Critics of such efforts contend they may undermine employee rehabilitation, medical confidentiality, and health care quality.
Under the employment-at-will doctrine, employees can be discharged for any reason, including occupational disability. No requirement exists for reinstatement when an employee's work capacity returns. OSHA gives disabled workers limited job-retention and no reinstatement protection. By statute or case decision, however, several states now prohibit discharge in retaliation for filing workers' compensation claims.(145) The Family and Medical Leave Act prohibits discharge (in firms with 50 or more employees) for absence up to twelve weeks a year due to serious medical conditions, including compensable work-related conditions.(146) Some states extend protection for work-related absences and disabilities to small firms.(147) Collective bargaining agreements frequently forbid discharge for absence due to occupational illness or injury. The Americans with Disabilities Act requires employers to provide reasonable accommodation to employees with serious disabilities who can perform essential job functions.(148)
Workers' compensation addresses injury prevention in various ways. Experience rating on premiums theoretically induces employers to reduce hazards so as to cut insurance costs. Studies suggest these incentives have minimal safety impact, particularly with small firms that are subject to minimal expense rating. Other approaches in some workers' compensation systems include safety audits; mandatory safety programs and/or labor-management joint safety committees; safety training programs; and workplace inspections and penalty assessments.(149) Insurers sometimes consult with employers on loss prevention and safety engineering.
When workers' compensation applies, it is the exclusive remedy for employees injured on the job. Employees may not recover in tort for work-related harms.(150) An important exception is that employers may be liable in tort for intentional harms.(151) Moreover, workers' compensation does not bar suit for tort damages against third-parties, like the makers of defective products causing workplace injuries. In some states, the third party may seek contribution and indemnity from the employer.(152) Finally, workers' compensation does not prevent employee redress under federal statutes, like the discrimination ban in Title VII of the Civil Rights Act, for non-physical harms.
1 Prior to 1970, enforcement of state safety and health regulation varied and injury and illness rates kept rising. Massachusetts passed the first factory inspection law in 1877 and by 1890, 22 states had passed laws permitting safety inspectors into some workplaces. However, these early laws were rarely enforced. By 1968, only 20 states had occupational health programs. A survey taken that year found that most states had more game wardens than safety inspectors. See generally OFFICE OF TECHNOLOGY ASSESSMENT, PREVENTING INJURY AND ILLNESS, 209-211 (1985); NICHOLAS ASHFORD, CRISIS IN THE WORKPLACE 47-51 (1976).
2See Martin v. Occupational Safety & Health Review Commission, 499 U.S. 144, 147-8 (1991) (holding that reviewing courts should defer to Secretary of Labor when resolving ambiguous and conflicting regulatory interpretations).
8 29 U.S.C. § 668. See 29 C.F.R. pt. 1960. Executive Order 12196 imposes additional safety and health duties on federal agency heads. Safety and health protection for employees of the legislative branch of the federal government is provided by the Congressional Accountability Act, 2 U.S.C. § 1301 (1994), which incorporates the substantive requirements of the Act, but provides an enforcement mechanism controlled entirely by Congress.
11 Organized Migrants in Community Action v. Brennan, 520 F.2d 1161 (D.C. Cir. 1975)(explaining that Federal Environmental Pesticide Control Act encompasses farm worker exposure to pesticides so OSHA is preempted from acting).
12 See, e.g., Northwest Airlines, 8 O.S.H. Cas. (BNA) 1982 (O.S.H.R.C. 1980) (holding that preemption applies to airline maintenance workers because they are within the class of persons intended to be protected under the Federal Aviation Act); Southern Ry. v. Occupational Safety & Health Review Commission, 539 F.2d 335 (4 th Cir. 1976)(holding that, in absence of Federal Railroad Administration regulation of employee safety in railway shops and repair facilities, the Act applied to such functions).
15 States and territories operating approved plans include: Alaska; Arizona; California; Hawaii; Indiana; Iowa; Kentucky; Maryland; Michigan; Minnesota; Nevada; New Mexico; North Carolina; Oregon; South Carolina; Tennessee; Utah; Vermont; Virginia; Washington; Wyoming; Virgin Islands; Puerto Rico. 29 C.F.R. 1952 pts. .90-.394.
24 29 U.S.C. § 667(c)(2) (1994). See OSHA Notice of Approval of California Hazard Communication Standard, 62 Fed. Reg. 31159 (1997) (observing that any condition of concern to state officials might justify local regulation).
26 In 1989, OSHA completed a generic rulemaking aimed at updating the exposure limits for over 400 toxic substances first adopted in 1971. That effort was invalidated by the 11th Circuit. See AFL-CIO v. OSHA, 962 F.2d 965 (11th Cir. 1992).
30 Courts stayed the effect of ETS’s for pesticides, multiple carcinogens, commercial diving, benzene, and asbestos. Several ETS’s have become effective when no court challenge was filed, including vinyl chloride and DBCP. In one instance, the Sixth Circuit denied a motion to stay the effectiveness of an ETS regulating acrylonitrile. Visitron v. OSHA, 6 O.S.H.C 1483 (6th Cir. 1978).
31 International Union v. Donovan, 590 F. Supp. 747 (D.D.C. 1984) (stating that ETS must address grave danger, even though permanent standard may address merely significant risk). Courts have required that a consensus exist that the substance addressed by an ETS poses a hazard to workers. See Dry Colors Mfrs. Ass’n v. Department of Labor, 486 F.2d 98 (3d Cir. 1973)(applying section 655 to ETS regulations).
35 An advisory committee may recommend safety and health standards to OSHA. 29 U.S.C. § 655(b)(1) (1994). Its membership must reflect interests described in the Act, such as labor, business, and state agencies. 29 U.S.C. § 656(a) (1994). The Federal Advisory Committee Act imposes additional procedural requirements, such as published notice of meetings, open meetings, and transcribed proceedings.
37 29 C.F.R. § 1911.15(a)(3). At least one court has suggested that these additional procedural safeguards are implicitly required by the hybrid rulemaking procedures established under the Act. See Industrial Union Dep’t v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974).
39 The preamble must reveal the policy issues confronted by an agency during rulemaking and its reaction to them. See Automotive Parts & Accessories Ass’n. v. Boyd, 407 F.2d 330, 338 (D.C. Cir. 1968). An agency must respond to comments received and explain its rule by reference to them. See Rodway v. Dep’t. of Agriculture, 514 F.2d 809, 817 (D.C. Cir. 1975).
42 29 U.S.C. § 655(f). The substantial evidence test imposes a higher burden on OSHA to justify its rules than is generally required of agencies engaged in informal rulemaking. See Associated Indus. of New York v. Department of Labor, 487 F.2d 342 (2d Cir. 1973); Industrial Union Dep’t v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974) (concluding that OSHA policy decisions are not susceptible of factual verification and can be judged only by whether they are rationally related to the Agency’s goals). But see AFL-CIO v. OSHA, 965 F.2d 962 (11th Cir. 1992) (applying the more stringent substantial evidence test to all OSHA decisions).
44 5 U.S.C. § 706(1) authorizes courts to compel agency action unlawfully withheld or unreasonably delayed. In determining whether there has been unlawful withholding and unreasonable delay, a court should consider time elapsed since the duty to act arose; reasonableness of delay; and consequences of delay. See Cutler v. Hayes, 818 F.2d 879 (D.C. Cir. 1987). Courts usually defer to an agency’s rulemaking timetable. Id.
45 The courts have relied on the APA to speed OSHA’s completion of standards governing formaldehyde, ethylene oxide, and cadmium, but have declined to intervene in rulemakings on chromium, benzene, and second-hand cigarette smoke. Compare International Union v. Donovan 756 F.2d 162 (D.C. Cir. 1985) (implementing orders directing OSHA to speed consideration of formaldehyde regulation), and Public Citizen Health Research Group v. Auchter, 702 F.2d 1150 (D.C. Cir. 1983) (directing OSHA to publish a proposed ethylene oxide standard thirty days hence), and Public Citizen Health Research Group v. Brock, 823 F.2d 626 (D.C. Cir 1987) (criticizing OSHA for failing timely to adopt a short term exposure limit for ethylene oxide), and In re International Chemical Workers Union, 958 F.2d 1144 (D.C. Cir. 1992) (ordering OSHA to publish a cadmium standard by a date certain) with Oil, Chemical & Atomic Workers Union v. OSHA , 145 F.3d 120 (3d Cir. 1998) (declining to compel chromium standard) and Action for Smoking and Health v. OSHA, 953 F.2d 687 (D.C. Cir. 1992) (refusing to direct OSHA to expedite consideration of environmental tobacco smoke regulations), and United Steelworkers of America v. Rubber Mfrs. Ass’n 783 F.2d 1117 (D.C. Cir. 1986) (accepting OSHA’s timetable for completion of benzene standard).
46 Industrial Union Dep’t v. American Petroleum Institute, 448 U.S. 607, 639-40 (1980). The Supreme Court suggested risks of 1/1000 are plainly significant and authorized OSHA to risk error on the side of worker protection.
49 See American Textile Mfrs. Institute v. Donovan, 452 U.S. 490 (1981); American Smelting & Refining Co. v. Occupational Safety & Health Review Commission, 501 F.2d 504, 515 (8th Cir. 1974) (holding that it is reasonable for Secretary of Labor to rely on effective and efficient air sampling rather than sophisticated biological monitoring when determining health hazards).
50 United Steelworkers of America v. Marshall, 647 F.2d 1189, 1265 (D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981).
53 American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 504-05 (1981). On the other hand, OSHA must select the most cost-effective method of achieving its employee-protective goal. Building & Construction Trades Dep’t v. Brock, 838 F.2d 1258, 1269 (D.C. Cir. 1986) (finding rationale supporting cost-effectiveness analysis of regulations compelling).
54 International Union v. OSHA, 938 F.2d 1310 (D.C. Cir. 1991) (concluding that the requirement in § 6(b)(5) that OSHA maximize employee health does not apply to safety regulation). See also Control of Hazardous Energy, Supplemental Statement of Reasons, 58 Fed. Reg. 16612 (1993).
56 See generally Society of Plastics Indus. v. OSHA, 509 F.2d 1301 (2nd Cir. 1975) (finding OSHA should regulate when scientific evidence “points” but does not “conclude”); United Steelworkers v. Marshall, 647 F.2d at 1266 (finding Congress did not expect OSHA to await the “Godot of scientific certainty”).
58 5 U.S.C. § 609. Under the Regulatory Flexibility Act, the Secretary must assess the impact of alternative compliance approaches on small business and consider ways to reduce those impacts. The Regulatory Flexibility Act does not override OSHA’s duty to protect employee health or require it to adopt different standards for small and large businesses. See Associated Fisheries of Maine v. Daley, 127 F.3d 104 (1st Cir. 1997).
65 See generally Brennan v. OSHRC (Alsa Lumber Co.), 511 F.2d 1139 (9th Cir. 1975). The Secretary’s burden is fourfold: (1) a specific standard applies, (2) the employer fails to comply, (3) employees were exposed to the hazard, and (4) the employer knew or had constructive knowledge of the condition.
66 See Anning-Johnson Co. v. Occupational Safety & Health Review Commission, 516 F.2d 1081, 1091 (1975); Grossman Steel & Aluminum Corp., 4 O.S.H. Cas. (BNA) 1185 (O.S.H.R.C. 1976). See also BOKAT & THOMPSON, OCCUPATIONAL SAFETY AND HEALTH LAW 411 (1988).
67 National Realty & Construction Co. v. Occupational Safety & Health Review Commission, 489 F.2d 1257, 1261 (D.C. Cir. 1973). The general duty clause applies only to recognized hazards, but feasible abatement is required without regard to another employer or its industry recognize the utility of such measures.
68 International Union v. General Dynamics, 815 F.2d 1570 (D.C. Cir. 1987) (holding the Act required application of the general duty clause to hazardous conditions not adequately controlled by a specific standard where the employer knew employees remain in danger).
69 General Electric Co. v. Secretary of Labor, 576 F.2d 558 (2d Cir. 1978). An employer seeking a permanent variance must demonstrate to OSHA that its alternative compliance will provide protection “at least as effective” as would compliance. 29 U.S.C. § 655(d). OSHA must notify affected employees of the variance application, may conduct on-site investigations and must hold a hearing, if requested, before granting a variance. For purposes of the greater hazard defense, an application for a variance is considered futile where the job will likely end before the application is considered, such as at a construction site.
71 Dun-Par Engineered Form Co., 12 O.S.H. Cas. (BNA) 1949 (O.S.H.R.C. 1986). Initially, noncompliance was excused only for impossibility. The standard is now infeasibility. Id. See also United Steelworkers of America v. Marshall, 647 F.2d at 1273.
75 See CH2M Hill Central, Inc., 17 O.S.H. Cas. (BNA) 1961 (O.S.H.R.C. 1997) petition for review pending No. 891712 (7th Cir. April 21, 1997) (holding an engineering firm in violation because it had a contractual right to oversee safety); Simpson, Gumpertz, & Heger, Inc., 15 O.S.H. Cas. (BNA) 1851, 1867, 1869-70 (Rev. Comm. 1992), aff’d, 3 F.3d 1(1st Cir. 1993) (holding an engineering firm not in violation when its work had a tenuous relationship to the hazards).
76 OSHA must initiate inspections in response to formal complaints. 29 U.S.C. § 656(f)(1). OSHA does not routinely initiate inspections in response to phone and other informal complaints or in response to complaints from non-employees. But see L.R. Wilson & Sons, Inc., 17 O.S.H. Cas. (BNA) 2059 (O.S.H.R.C.. 1997), aff’d in part & rev’d in part, remanded, 134 F.3d 1235 (4th Cir. 1998) (initiating inspection in response to the Assistant Secretary’s observations).
78 In Marshall v. Barlow’s Inc., 436 U.S. 307 (1978), the Supreme Court ruled that the Fourth Amendment’s prohibition on unreasonable searches and seizures requires OSHA to seek a search warrant from a neutral magistrate before conducting a nonconsensual workplace inspection. To obtain a warrant, OSHA must demonstrate either that it has probable cause to believe a violation exists or the workplace was selected for inspection on the basis of neutral criteria. This form of “administrative” probable cause imposes less burden on OSHA than demonstrating probable cause for a criminal warrant. NIOSH too must obtain a warrant before entering a workplace over an employer’s objection.
79 Courts have interpreted an employee’s walkaround rights as designed to assist the inspector and those rights may be curtailed at the inspector’s discretion. Cf. Chamber of Commerce v. OSHA, 636 F.2d 464 (D.C. Cir. 1980) (holding that time spent accompanying an OSHA inspector was for employee’s benefit and not considered hours worked under the Fair Labor Standards Act).
80 Section 9(a) provides that “if, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, of any standard, rule or order prescribed pursuant to this act, he shall with reasonable promptness issue a citation to the employer.”
81 Section 9(a) authorizes the Secretary to issue “notices in lieu of citations” only for de minimis violations; those which have no direct or immediate relation to safety and health. For this category, no penalties or abatement duties may be imposed. See 29 U.S.C. § 658(a). See also 29 C.F.R. § 1903.14(a). Section 6(d) authorizes a permanent variance from a standard “after an opportunity for inspection where appropriate” if an employer demonstrates that alternative compliance approaches “will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard.” 29 U.S.C. § 655(d). An employer may receive a variance even where compliance has not been achieved. Compare 29 U.S.C. § 655(d) (authorizing the Secretary to issue a permanent variance, after an opportunity for inspection, if an employer demonstrates that alternative compliance means will provide employment as safe and healthful as that provided by the standard), with 29 U.S.C. § 655(b)(6)(a) (authorizing the Secretary to issue a temporary variance but not to conduct an inspection to verify the employers representations).
87 29 U.S.C. § 666(d). An employer that cannot timely abate has two extension options. It can seek a temporary variance if noncompliance stems from lack of materials or equipment. 29 U.S.C. § 655(b)(6)(A). It can also petition for modification of the abatement date. 29 U.S.C. § 659(c).
88 Compare Caterpillar, Inc., 15 O.S.H. Cas. (BNA) 2153 (O.S.H.R.C. 1993) (authorizing separate penalties for each instance of violations requiring individualized abatement action), with Metzler v. Arcadian Corp., 1997 U.S. App. Lexis 12693 (5th Cir. 1997) (prohibiting separate penalties based on individual employee exposures under the general duty clause).
96 Martin v. Occupational Safety & Health Review Commission, 499 U.S. 144 (1991) (holding that reviewing courts should defer to Secretary of Labor when resolving ambiguous and conflicting regulatory interpretations).
102 Secretary of Labor v. Dayton Tire, 853 F. Supp. 376, 380 (W.D. Okl. 1994) (holding that OSHA must show that a reasonable person would conclude that a real risk of injury or death exists because of lookout/tagout violations).
105 See generally Lynn K. Rhinehart, Would Workers Be Better Protected If They Were Declared An Endangered Species?: A Comparison of Criminal Enforcement Under the Federal Workplace Safety and Environmental Laws, 31 Am. Crim. L. Rev. 351 (1994).
106 United States. v. Doig, 950 F.2d 411, 412 (7th Cir. 1991) (holding that Congress did not intend to subject employees to charges of aiding and abetting employers in criminal violations under § 666(e)) .
109 OSHA Instruction TED 3.5B (page V-3 item D, Scope of Request), December 9, 1996, issued by the Office of Cooperative Programs. Consultants are not compliance inspectors, but they must refer to OSHA any imminent danger they observe and which an employer refuses immediately to abate. 40 Fed. Reg. 21935-36 (1975). Consultants must also seek elimination of serious hazards within reasonable times or else report the refusals to abate. Id.
110 49 Fed. Reg. 25082 (1984). OSHA refers to this as its Safety and Health Achievement Recognition Program. OSHA Instruction TED 3.5B (page X-8 item D, Scope of Request), December 9, 1996, issued by the Office of Cooperative Programs.
112 29 U.S.C. § 169(a)(2) (1994); See also Electromation, 309 N.L.R.B. No. 163 (Dec. 16, 1992); Electromation v. N.L.R.B, 35 F.3d 1148, 1158 (7th Cir. 1994); E.I. DuPont de Nemours & Co., 311 N.L.R.B. No. 88 (May 28, 1993); N.L.R.B General Counsel’s Memorandum in Vanalco, Inc., 1996 N.L.R.B. GCM Lexis 24 (Aug. 21, 1996).
113 See generally Greg Watchman, Safe and Sound: The Case for Safety and Health Committees Under OSHA and NLRA, 4 CORNELL J. L. & PUB. POL’Y (1994). See, e.g., Alaska (Alaska Admin. Code tit. 8, 61.010.07.310(a)(8)(1984) (joint committees required in the paper and pulp industries); Connecticut (Workers’ Compensation Act 28(a), 1993 Conn. Acts 228, Pub. Act No. 93-228) (employers of 25 or more employees or a higher than average injury and illness rates); Florida (Act of Nov. 24, 1993, 1994 Fla. Laws ch. 93-415) (employers of 10 or more and high hazard employers); Minnesota (MINN. STATE ANN. 176.231 (West 1993) (employers of 25 or more and high hazard employers); Montana (MONT. CODE ANN. 39-71-1504 to 1505 (Supp. 1993) (employers of 5 or more); Nevada (NEV. REV. STAT. ANN. 618.383(2)(b)(Michie Supp. 1993) (employers of 25 or more); Nebraska (NEB. REV. STAT. 48-443 (Supp. 1993) (all employers); North Carolina (NC GEN. STAT. 95-252 (1993) (employers of 11 or more and a higher than average workers compensation experience); Oregon (OR. REV. STAT. 654.176 (1991) (employers of 11 or more and high hazard employers); Tennessee (TENN. CODE ANN. 50-6-501(a) (Supp. 1994) (high hazard employers); Washington (WASH. ADMIN. CODE 296-24-045(1) (1992) (employers of 11 or more); West Virginia (W. VA. CODE 23-2B-2 (1994) (Labor Commissioner authorized to require joint committees).
114 David Weil, Implementing Employment Regulations: Insights on the Determinants of Regulatory Performance, in GOVERNMENT REGULATION OF THE EMPLOYMENT RELATIONSHIP 429-474 (Bruce E. Kaufman, ed., 1991).
117 29 U.S.C. § 657(f)(1). OSHA must keep the complaining employee’s name secret from the employer and keep the employee advised of the status. OSHA regulations require inspections for charged violations of the general duty clause even though the Act does not mandate them. 29 C.F.R. 1903.11(a).
118 29 U.S.C. § 659(c). Even if employees elect party status, the Secretary of Labor has unreviewable discretion to withdraw or settle citations. Cuyahoga Valley Ry. v. United Transportation Union, 474 U.S. 3 (1985).
123 See Gateway Coal v. United Mineworker of America, 414 U.S. 368 (1974). Under such circumstances a no strike clause in a collective bargaining agreement will not be enforced so as to prohibit an employee from engaging in concerted activity to avoid performing abnormally dangerous work.
127 NIOSH operates, with its state partners, a number of surveillance programs, including: Adult Blood Lead Epidemiology and Surveillance (ABLES), which identifies cases of elevated blood lead levels among U.S. adults; Sentinel Event Notification System for Occupational Risks (SENSOR) surveillance for occupational lung diseases; and Fatality Assessment and Control Evaluation (FACE), which investigates work sites where fatalities have occurred. See generally OFFICE OF TECHNOLOGY ASSESSMENT, PREVENTING ILLNESS AND INJURY IN THE WORKPLACE, 242-52 (1985).
128 Every year NIOSH conducts hundreds of investigations at the request of workers, employers, and governmental agencies to evaluate concerns at specific work sites through its Health Hazard Evaluations, Intervention Studies and Control Technology Studies. Id.
129 Workers’ compensation is mandatory in all states except Texas and New Jersey. Edward M. Welch, EMPLOYERS’ GUIDE TO WORKERS’ COMPENSATION 51 (1994). Wisconsin developed the first workers compensation program in 1911. To meet constitutional objections, these early programs were voluntary. See PREVENTING ILLNESS, supra note 127, at 208.
149 See Spieler, supra note 130, at 244-259. A workers’ compensation related requirement for workplace inspections and penalty assessments may be preempted by OSH Act. Ben Robinson v. Texas Workers’ Compensation Commission, 934 S.W.2d 149 (Tx. Ct. App. 1996).
151 Many states allow worker tort actions for intentional harms. See id. See also Mark M. Hager, Harassment as a Tort: Why Title VII Hostile Environment Liability Should be Curtailed, 30 CONN. L. REV. 375, 430 n.107 (1998). Often, the employer must be “substantially certain” of an effect before a tort action is permitted. See Beauchamp v. Dow Chemical Co., 398 N.W. 2d 882 (Mich. 1986) (holding tort liability lies if employer was substantially certain injury would result and intended the act which caused injury); Blakenship v. Cincinnati Milacron Chemicals Inc. 433 N.E. 2d 571 (Ohio 1982)(providing same standard).