By Linda C. Ashar, J.D., Faculty Member, Wallace E. Boston School of Business
Work is risky. According to the U.S. Bureau of Labor Statistics, private employers reported 2.8 million nonfatal injuries and illnesses in 2019, and 5,333 fatal work injuries. These numbers reflect an overall consistent decrease of incidents over the past 20 years, down from the 5.7 million nonfatal injuries and illnesses and 6,054 fatal incidents reported for 1999.
However, the Bureau of Labor Statistics noted that the 5,333 fatal injuries of 2019 “represents the largest annual number since 2007.”
Safety is the business of the Occupational Health and Safety Administration (OSHA), the U.S. government’s regulator and enforcer of workplace safety standards. OSHA’s official mission is “to ensure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.”
This was not always the case. Until the middle of the 20th century, efforts for effective federal involvement in safety regulation were unsuccessful. But momentum grew for change with the publicity surrounding such fatal atrocities as the radiation illnesses of uranium mine workers and construction workers’ asbestosis. In 1968, President Lyndon Johnson called the American workers’ situation “the shame of a modern industrial nation.” The President’s message was backed by the power of labor’s AFL-CIO.
Finally enacted into law in 1970, the Occupational Safety and Health Act (OSH Act) was one of the earliest and the most comprehensive of federal laws to address worker safety. It established the Occupational Safety and Health Administration within the U.S. Department of Labor. In the decades since, OSHA has published a vast number of regulations governing private and some public employer safety practices.
Who Does OSHA Cover?
OSHA’s standards are organized in four industry categories:
- General industries
- Agriculture
- Maritime
- Construction
The law, however, does not cover state and local government employees, self-employed persons, immediate farm family members, or businesses that come under the auspices of another federal agency. (For example, the mining industry is covered by the Federal Mine Safety and Health Act of 1977.)
OSHA’s General Duty Clause
Although OSHA has identified and defined standards for thousands of safety practices and issued regulations covering the four industries, no one can foresee the circumstances of every potential safety problem in every workplace on any given day.
[Related: Navigating Complex Issues of Employment Negligence]
To cover the possibility of safety irregularities and hazards arising from a lack of oversight or attention, the OSH Act imposes a broad legal duty on employers to maintain a safe workplace. Known as the General Duty Clause, this provision states:
“Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.”
OSHA routinely cites the General Duty Clause to address hazards for which there are no specific standards in the regulations. Key terms here are “recognized hazards,” “likely to cause,” and “serious physical harm.”
- Recognized hazards. These are situations that are known to have or could cause harm. Even without a defined standard, employers must recognize and correct a hazard or risk or exposure to harm. An example is workplace violence. OSHA has not issued formal standards for workplace violence. But invoking the General Duty Clause, OSHA states: “Employers who do not take reasonable steps to prevent or abate a recognized violence hazard in the workplace can be cited.” COVID-19 is another workplace hazard for which OSHA has cited the General Duty Clause for employer responsibility to limit workplace exposure to and implement precautions against the spread of the highly contagious disease.
- Likely to cause. Experience and common sense inform circumstances that are reasonably foreseeable to result in harm. Situations can range from an “accident waiting to happen” to failure to train employees in the proper use of equipment or to provide them with protective gear.
- Serious physical harm. OSHA requires deaths and certain injuries to be immediately reported. A fatality must be reported within 8 hours; inpatient hospitalization, amputation or eye loss must be reported within 24 hours. The General Duty Clause has a much broader scope for serious physical harm. Was immediate medical care required? Will the harm significantly interfere with the employee’s ability to work? Change life quality?
Under the General Duty Clause, OSHA will identify and cite safety violations during an inspection on a “we know it when we see it” approach. This requires wise employers and employees to bring common sense and reasonable vigilance to day-to-day workplace practices.
Employee Rights and Obligations Under the Act
The law and OSHA regulations provide employees with several rights that serve to protect safety interests and assist maintenance of standards. These include the right to:
- A safe and healthy workplace
- Knowledge about hazardous chemicals and other hazards in the workplace
- Access to safety data sheets (SDS) (providing information about hazardous substances)
- Access to information about work-related injuries and illnesses in the workplace
- Complain in good faith to employers about danger or request hazard correction
- Safety training
- Hazard exposure information and medical records
- File a good faith complaint with OSHA
- Participate (or not) in an OSHA inspection by speaking privately with inspector
- Employer provision of required personal protective safety clothing and equipment
- Nonretaliation for making complaints
- View employer-posted OSHA poster
- View posting of OSHA notices of violations issued to employer and abatement measures
With rights come responsibilities. With the General Duty Clause, the OSH Act also states: “Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.”
Every employee has an obligation to follow safety procedures. If employees do not observe the rules, the effort for safety is lost. An example would be an employee who chooses not to wear required personal protection equipment or who disables a safety mechanism on a machine because he finds these measures cumbersome.
Employers are required to assess their workplace for compliance with OSHA standards. Also, for potential problems pursuant to the General Duty Clause, employers must implement and enforce policies and procedures to maintain safety. Employees who do not comply can be subjected to disciplinary action including termination of employment. Failure to observe safety puts themselves and other employees in jeopardy.
About the Author: Dr. Linda C. Ashar is a full-time Associate Professor in the Wallace E. Boston School of Business, teaching undergraduate and graduate courses in business, law, and ethics. She obtained her Juris Doctor from the University of Akron School of Law. Her law practice spans more than 30 years and includes business, employment law and litigation on behalf of employers and employees.
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