Both employers and employees have responsibilities and rights under the Occupational Safety Health Act (OSHA). Employers for example, are responsible for meeting their duty to provide â€œa workplace free from recognized hazardsâ€, for being familiar with mandatory OSHA standards, and for examining workplace conditions to make sure they conform to applicable standards. Employers have the right to seek advice and off site consultation from OSHA, request and receive proper identification of the OSHA compliance officer before inspection and to be advised by the compliance officer of the reason for inspection.
Employees also have rights and responsibilities, but OSHA canâ€™t cite them for violations of their responsibilities. They are responsible, for example, for complying with all applicable OSHA standards, for following all employer safety and health rules and regulations, and for reporting hazardous conditions to the supervisor. Employees have a right to demand safety and health on the job without fear of punishment. The act prohibits employers from punishing or discriminating against workers who complain to OSHA about job safety and health hazards.
Dealing with Employee Resistance:
While employees have a responsibility to comply with OSHA standards, they often resist, and in most such cases the employer remains liable for any penalties. The refusal of some workers to wear hard hats as mandated by the OSHA requirements typifies this problem. Employers have attempted to defend themselves against penalties for such noncompliance by citing worker intransigence and their own fear of wild cat strikes and walkouts. In most cases, courts have held employer liable for safety violations at the workplace regardless of the fact that the violations were due to employee resistance.
Yet it is possible for employers to reduce their liability since courts have recognized that it is impossible to totally eliminate all Hazardous conduct by employees. In the event of a problem, the courts may take into consideration facts such as whether the employerâ€™s safety procedures were adequate; whether the training really gave employees the understanding, knowledge, and skills required to perform their duties safely; and whether the employer really required employees to follow the procedures.
There are several other ways to address the liability problem. First, an employer can bargain with its union for the right to discharge or discipline any employee who disobeys an OSHA standard. As a second alternative a formal employer-employee arbitration process could provide a relatively quick-method for resolving an OSHA-related dispute. Other employers have tuned to positive reinforcement and training for gaining employee compliance. However, the only surefire way to eliminate liability is to ensure that no safety violation occurs.
The magazine Occupational Hazards conducted a survey of 12 health and safety experts, and asked them to identify the â€œ10 best waysâ€ to get into trouble with OSHA. The experts ranged from former OSHA compliance officers and lawyers to consultants and safety managers. Hereâ€™s what they said (starting with the best way to incur OSHAâ€™s wrath):
1. Ignore or retaliate against employees who raise safety issues
2. Antagonize or lie to OSHA during an inspection.
3. Keep inaccurate OSHA logs and have disorganized safety files.
4. Do not correct hazards OSHA has cited for and ignore commonly cited hazards.
5. Fail to control the flow of information during and after an inspection. (The employer should not hand over to the OSHA inspector any information he or she does not ask for, and should also keep tabs on everything the employer has given to the inspector)
6. Do not conduct a safety audit, or identify a serious hazard and do nothing about it.
7. Do not use appropriate engineering controls.
8. Do not take a systemic approach toward safety. (As one expert put it, an OSHA officer can see right away if [your company] does not place a priority on safety.
9. Do not enforce safety rules.
10. Ignore industrial hygiene issues (Itâ€™s easier to focus on day-to-day physical safety because these problems tend to be more apparent then hygiene issues such as airborne contaminants. You often cannot exposure problems such as these, although their effects on employees may be severe).
To the chagrin of some employers, OSHA is using technology to report its inspection. For example, OSHAâ€™s Web site (www.osha.gov) gives you easy access to your companyâ€™s (or your competitorsâ€™) OSHA enforcement history. The â€œWhen Youâ€™re On Your Ownâ€ feature how OSHA can help smaller businesses comply with safety rules and laws.