Chapter 20: Occupational Safety and Health

1. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 1 Chapter 20: Occupational Safety and Health Employment & Labor Law 7th Edition Cihon & Castagnera

2. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 2 Policy and Processes of the OSH Act The Occupational Safety and Health Act (OSH Act) was enacted by Congress in 1970 Broad goals: Assure safe and healthful working conditions for men and women Provide a framework for research, education, training, and information in occupational safety and health Employers shall meet the various health and safety standards set under the act and keep records of injuries, deaths, accidents, illnesses, and particular hazards Applies to all employees who work for an employer that is engaged in a business affecting interstate commerce Does not apply to: The federal and state governments in their capacity as employers Domestic servants Self-employed persons The OSH Act contains no specific industry-wide exemptions

3. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 3 Administration and Enforcement of OSH Act OSHA created 3 federal agencies for administration and enforcement: The Occupational Safety and Health Administration (OSHA) is an agency created for enforcement of the OSH Act Able to issue citations and recommend penalties for violations The National Institute of Occupational Safety and Health (NIOSH) is an agency created to conduct research and promote the application of the research results regarding work experience The Occupational Safety and Health Review Commission (OSHRC) is a quasi-judicial agency created to adjudicate contested enforcement actions of OSHA 3 members appointed by the President for 6-year terms Able to actually enforce penalties recommended by OSHA

4. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 4 Standards The OSH Act provides for the issuance of 3 kinds of standards: Interim standards: Standards that the Secretary of Labor had power to issue for the first 2 years following the effective date of the act Modeled on various preexisting industry consensus standards Permanent standards: Include both newly created standards and revised interim standards Developed by OSHA and NIOSH Temporary emergency standards: Issued when the employees are exposed to grave dangers from substances or agents determined to be toxic or physically harmful Actual injury does not have to occur but there must be a genuinely serious emergency Appeals of standards must be filed with the appropriate federal Court of Appeals before the 60th day after its issuance

5. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 5 Feasibility & Burden of Proof Feasibility The feasibility of a standard must be examined from: Technological feasibility Economic feasibility Burden of Proof The Secretary must carry the burden of proving both technological and economic feasibility when promulgating and enforcing standards governing toxic materials and harmful physical agents The Secretary bears the burden of proving by �substantial evidence on the record considered as a whole� that the cited employer violated the act

6. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 6 Trinity Industries, Inc. v. OSHRC Facts: Trinity Industries operates plants that manufacture and repair railcars. Trinity was cited for failure to comply with an OSHA regulation as the atmosphere inside at least one of Trinity�s railcars exceeded ten percent of the lower explosive limit. Trinity had designed a ventilation system that prevented the build up of hazardous atmosphere and, in thousands of tests over a 10-year period, had never received a reading above ten percent. Trinity therefore appealed the citation. Issue: Whether Trinity knew or should have known that its ventilation was not maintaining an atmosphere below 10 percent of the lower explosive limit Decision: Since, the Secretary of Labor failed in his burden of proving that Trinity knew or should have known that the levels in the railcars were improper, the citations issued against Trinity are vacated.

7. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 7 Variances If an employer, or a class of employers, believe that the OSHA standard is inappropriate to its particular situation, an exemption, or variance, may be sought Temporary variances are granted when the employer is unable to comply with a standard by its effective date because of the unavailability of Professional or technological personnel Materials or equipment necessary to come into compliance Permanent variances are granted when the employer establishes by a preponderance of the evidence that its particular procedures provide as safe and healthful a workplace as the OSHA standard would provide

8. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 8 Employee Rights Section 11(c)(1) of the OSH Act provides the right to refuse Protects employees from discrimination because they refuse to work in the face of a dangerous condition Can be exercised when Employees are exposed to a dangerous condition posing the risk of serious injury or death and There is insufficient time, due to the nature of the hazard, to resort to the regular statutory procedures for enforcement

9. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 9 Wood v. Department of Labor Facts: Wood was employed as a senior electrician by United Engineers and Constructors (UE&C). He worked on a contract with the U.S. Army to dismantle and destroy lethal chemical weapons. Wood found several problems with the basic safety equipment and training and began making a number of safety complaints. An OSHA investigation found 2 serious citations. Thereafter, Wood and his supervisors had many clashes and he was eventually discharged for insubordination. Wood filed a complaint with OSHA, which investigated and found that he was not entitled to refuse to work on the day of his insubordination citation. Wood appealed OSHA�s decision. Issue: Whether Wood�s termination a retaliatory discharge Decision: The Assistant Secretary for OSHA determined that Wood�s refusal to work was not a protected activity under and therefore UE&C did not violate the act by discharging him

10. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 10 OSHA Physical Inspections OSHA�s occupational safety and health standards are enforced through physical inspections of workplaces Priority of inspections: 1. Investigation of complaints of imminent danger 2. Investigation of fatal and catastrophic accidents 3. Investigation of complaints filed by employees alleging hazardous working conditions 4. Investigation of high-hazard industries 5. Random general investigations

11. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 11 OSHA Recordkeeping Requirements Employers with 8 or more employees are required to keep records of and to make periodic reports to OSHA on occupational injuries and illnesses Occupational injuries must be recorded if they result in: Death Loss of consciousness Medical treatment other than minor first aid One or more lost workdays The restriction of work or motion Transfer to another job The employer is required to maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents required to be monitored Any employee or representative of an employee who believes that a violation of a safety or health standard exists that threatens physical harm, or believes that an imminent danger exists, may request an inspection

12. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 12 OSHA Inspections The compliance officer conducting the inspection may enter without delay and at reasonable times any factory, business establishment, construction site, or workplace covered by the act The officer also has the authority to question privately any employer, owner, operator, agent, or employee The act allows the employer and a representative authorized by the employees to accompany the inspector during the physical inspection of the work site

13. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 13 Ethical Dilemma The illegal immigrant workers rebuilding New Orleans are especially vulnerable to exploitation, according to a study released by professors at Tulane University and the University of California. Illegal immigrants were paid significantly less at an average $10 per hour, compared with $16.50 for documented workers. Under federal labor law, illegal immigrants are afforded the same health and safety protections as documented workers. Regardless of their legal status, laborers can sue most employers under the FLSA for violation of the minimum wage law and overtime regulations. Do you agree that illegal immigrant workers should receive the same protections under the federal OSH Act as American workers and legal immigrants? If OSHA inspects a site for safety violations and the inspector suspects that illegal workers are employed at the site, should he be required to report this suspicion to the U.S. Immigration and Customs Enforcement (ICE) agency? What if the OSHA inspection was prompted by a call or complaint from one of the illegal workers? Does this change your answer?

14. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 14 Chao v. Mallard Bay Drilling, Inc. Facts: Mallard Bay Drilling operates a fleet of barges used for oil and gas exploration. Rig 52 exploded when drilling, killing 4 members of the crew and injuring 2 others. OSHA cited Mallard for 3 violations, which Mallard objected to based on the fact the Rig 52 was not a work place. Therefore, the Coast Guard, and not OSHA, has the authority to promulgate and enforce safety regulations. Issue: Whether Rig 52 was at �workplace� within the meaning of the act Decision: It was held that Rig 52 was a �workplace� as defined by the Act and, therefore, OSHA did have authority to issue citations.

15. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 15 The Working Law OSHA offers the following guidance for farm and poultry workers and others at risk of coming into contact with avian flu: All persons who have been in close contact with the infected animals, contact with contaminated surfaces, or after removing gloves, should wash their hands frequently All workers involved in the culling, transport, or disposal of avian influenza-infected poultry should be provided with appropriate personal protective equipment Environmental clean up should be carried out in areas of culling Unvaccinated workers should receive the current season�s influenza vaccine to reduce the possibility of dual infection with avian and human influenza viruses Workers should receive an influenza antiviral drug daily for the duration of time during which direct contact with infected poultry or contaminated surfaces occur Potentially exposed workers should monitor their health for the development of fever, respiratory symptoms, and/or conjunctivitis (i.e., eye infections) for 1 week after last exposure to avian influenza-infected or exposed birds or to potentially avian influenza-contaminated environmental surfaces

16. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 16 Citations and Abatement When an inspection uncovers a violation of a standard, the employer is issued either: A written citation The employer must be notified by certified mail within a reasonable time (no longer than 6 months after the violation) The citation must set a reasonable time for the abatement of the violation (usually not to exceed 30 days) The employees or representatives of the employees may file a notice challenging the period of time set in the citation for the abatement The citation must be prominently posted at or near each place the violation occurred A notice of de minimis violations de minimis violation: A technical violation, but so insignificant as to require no fine or remediation

17. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 17 Appeal and Penalties Appeal The employer may appeal the citation If the employer has made a good-faith effort to comply with the abatement requirements of the initial citation but has been unable to because of factors beyond the reasonable control of the employer, a petition for modification of abatement can be filed Penalties If the employer fails to correct a cited violation after it has become final, a fine may be imposed of not more than $1,000 per day If the violation is found to be willful, a repeat violation, or results in the death of an employee, OSHA can impose fines of up to $70,000 Criminal penalties of up to 6 months imprisonment are allowed, with a maximum increased to 12 months for a repeat violations

18. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 18 Workplace Violations Workplace violence can be classified as follows: Violence by emotionally enraged persons Violence by an angry spouse or relative of an employee Random acts of violence Violence against law enforcement or security Terrorism and hate crimes

19. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 19 Indicators of a Potential for Workplace Violence Alcohol abuse Drug abuse Impaired judgment Emotional difficulties Financial problems Legal problems Strained family relations Occupational failure Threats Absenteeism Deterioration of personal appearance, attitude, and behavior Deterioration of interpersonal relations Inefficiency A history of violence Psychosis Romantic obsession Chemical dependence Depression Paranoia or pathological blaming Impaired neurological functioning Elevated frustration with the work environment Interest in or obsession with weapons Personality disorder

20. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 20 Documenting Behavior Incidents of workplace violence or possible violent behavior should be documented as follows: Record incidents promptly Indicate date, time, and location Detail the behavior List all persons and work products involved Identify the performance standards and disciplinary rules violated Record the consequences of the action Record management�s response Record the employee�s reaction to management�s response

21. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 21 Prevention The following should be done to prevent workplace violence: Develop a written policy Form a crisis management team Develop policies on counseling, suspension, and termination Immediately investigate all incidents, such as threats Contact specialists for assistance Revise plans, policies, and procedures as information develops

22. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 22 Evacuation Plans The EEOC recently released guidelines concerning the creation of emergency plans that comply with the Americans with Disabilities Act (ADA). The guide lists 3 ways in which employers can obtain the information: The employer can ask about a new hire�s needs in this regard after making an offer of employment and prior to the commencement of work The employer is allowed to send out periodic surveys to all employees to ascertain such special needs; however, self-identification must be strictly voluntary and be used only in conjunction with construction of the emergency plan The employer may ask all employees with declared disabilities if they will require such special assistance in the event of an evacuation of the work site

23. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 23 Packages and Mail

24. � 2011 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use. 20 - 24 Anders v. Waste Management of Wisconsin Facts: Anders, an African American male, was a unionized roll-off waste-hauler employed at Waste Management�s facility in Franklin. Because of his insubordinate manner and violent conduct, he was fired from Waste Management. After being terminated from Waste Management, Anders was hired by an industry competitor, City Wide Disposal. In 2003, Waste Management acquired City Wide�s assets and hired a number of their employees. Anders was not re-hired. Anders filed a lawsuit against West Management for the violation of Title VII. Issue: Whether the Waste Management had violated Title VII by failure to rehire Anders Decision: The decision of the district court was affirmed. The adjudicating court found Anders� aggressive actions to be in strict non-compliance with the company�s code of conduct.