OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION (OSHA)

The Occupational Safety and Health Administration (OSHA) was established by the Williams-Steiger Occupational Safety and Health Act (OSH Act) of 1970, which took effect in 1971. OSHA's mission is to "assure, in so far as possible, every working man and woman in the nation safe and healthful working conditions." With the exception of operators of mines, the OSH Act covers every nonpublic U.S. employer whose business affects interstate commerce. Thus, nearly every private employer in the United States is covered. Operators of mines are exempt from the OSH Act because they are regulated separately pursuant to the Mine Safety and Health Act of 1977. Because OSHA is an administrative agency within the U.S. Department of Labor, it is administered by an assistant secretary of labor.

OBJECTIVES AND STANDARDS SETFING

OSHA seeks to make workplaces safer and healthier by making and enforcing regulations, which the OSH Act calls "standards." The OSH Act itself establishes only one workplace standard, which is called the "general duty standard." The general duty standard 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 are likely to cause death or serious physical harm to his [or her] employees." In the OSH Act, Congress delegated authority to OSHA to make rules further implementing the general duty standard.

Standards made by OSHA are published in the Code of Federal Regulations (CFR). The three types of regulations are called interim, temporary emergency, and permanent. Interim standards were applicable for two years after the OSH Act was passed. For this purpose, OSHA was authorized to use the standards of any nationally recognized "standards setting" organization, such as those of professional engineering groups. Such privately developed standards are called "national consensus standards." Temporary emergency standards last only six months and are designed to protect workers while OSHA goes through the processes required by law to develop a permanent standard. Permanent standards are made through the same processes as the regulations made by other federal administrative agencies. As OSHA drafts a proposal for a permanent standard, it consults with representatives of industry and labor and collects scientific, medical, and engineering data as appropriate. A proposed standard is then published in the Federal Register. A comment period is held, during which input is received from interested parties including, but not limited to, representatives of industry and labor. At the close of the comment period, the proposal may be withdrawn and set aside, withdrawn and reproposed with modifications, or promulgated as a final standard. (Promulgated means that it has been made into a permanent standard and has the force and effect of law.) All promulgated standards are first published in the Federal Register and are then compiled and published in the Code of Federal Regulations. It is important to note that many of OSHA's permanent standards originated as national consensus standards developed by private professional organizations such as the National Fire Protection Association and the American National Standards Institute. Examples of permanent OSHA standards include limits for exposure of employees to hazardous substances such as asbestos, benzene, vinyl chloride, and cotton dust.

In the OSH Act of 1970, in addition to creating OSHA, Congress established a research institute called the National Institute of Occupational Safety and Health (NIOSH). Since 1973 NIOSH has been a division of the Centers for Disease Control and Prevention. The purpose of NIOSH is to gather data documenting incidences of occupational exposure, injury, illness and death in the United States. After gathering and evaluating data, NIOSH develops" criteria documents" for specific standards giving doctors' and scientists' conclusions about specific hazards. For example, they evaluate how much noise is likely to cause deafness or how much exposure to benzene is likely to cause leukemia. Some OSHA standards specifying permissible amounts and levels of exposure to toxic substances are based on criteria documents. The administration, however, also considers data gathered by representatives of industry, labor, and other groups.

RECORD-KEEPING REQUIREMENTS

As a means of identifying workplace hazards and as a means of identifying violations of OSHA's standards, all employers covered by the OSH Act are required to keep four kinds of records. These records include: (1) records regarding enforcement of OSHA standards; (2) research records; (3) job-related injury, illness, and death records; and (4) records regarding job hazards.

ENFORCEMENT OF STANDARDS

OSHA inspectors conduct planned or surprise inspections of work sites covered by the OSH Act to verify compliance with the OSH Act and standards promulgated by OSHA. The OSH Act allows the employer and an employee representative to accompany OSHA's representative during the inspection. It should also be noted that in 1978, in Marshall v. Barlow, the U.S. Supreme Court declared that in most industries, employers have a right to bar an OSHA inspector from their premises if the inspector has not first obtained a search warrant.

If violations are found during an inspection, an OSHA citation may be issued in which alleged violations are listed, notices of penalties for each violation are given, and an abatement period is established. The abatement period is the amount of time the employer has to correct any violation(s). Penalties for a violation can be civil or criminal and vary depending on whether the violation is nonserious or serious, willful or nonwillful, or repeated. For serious, repeated, willful violations, possible civil penalties range up to $70,000. Ironically, however, monetary criminal penalties range up to only $10,000. A six-month jail sentence can be imposed if an employee death results from a violation. Because OSHA must refer cases to the U.S. Justice Department for criminal enforcement, it has not made extensive use of criminal prosecution as an enforcement mechanism.

An employer has 15 days to contest an OSHA citation, and any challenge is heard by an administrative law judge (ALJ) within OSHA. The ALJ receives oral and written evidence, decides issues of fact and law, and enters an order. If the employer is dissatisfied with that order, it can be appealed to the Occupational Safety and Health Review Commission, which will, in turn, enter an order. Finally, within 30 days of the issuance of that order, the employer or the secretary of labor can take the case to the U.S. federal court system by filing an appeal with a U.S. court of appeals.

OSHA AND ITS STATE COUNTERPARTS

Pursuant to the OSH Act, an individual state can pass its own worker health and safety laws and standards. If the state can show that its counterpart to OSHA will regulate as stringently as or more stringently than the federal agency, the state counterpart will be certified to assume OSH Act administration and enforcement in that state. As of 1999, counterparts to OSHA were authorized in at least 25 states. Therefore, businesses in those states deal on a day-to-day basis with the state agency instead of the federal administration.

Businesses should be aware that in recent years state attorneys general and prosecutors have brought increasing numbers of criminal prosecutions against employers for crimes ranging from battery to murder. Thus, although the OSH Act provides for maximum penalties of six months of jail for willful violation of a standard, state prosecutors can and do seek much more serious penalties using state criminal statutes.

HISTORY OF THE RELATIONSHIP
BETWEEN OSHA AND BUSINESS

OSHA has traditionally used "command and control" kinds of regulation to protect workers. "Command and control" regulations are those which set requirements for job safety (such as requirements for guardrails on stairs) or limits on exposure to a hazardous substance (such as a given number of fibers of asbestos per cubic milliliter of air breathed per hour). They are enforced through citations issued to violators.

In 1984 OSHA promulgated the Hazard Communication Standard (HCS), which is viewed as a new kind of regulation differing from "command and control." The HCS gives workers access to information about long-term health risks resulting from workplace exposure to toxic or hazardous substances. The HCS requires manufacturers, importers, and distributors to provide employers with evaluations of all toxic or hazardous materials sold or distributed to those employers. For each chemical, this information is compiled in a material safety data sheet (MSDS). The MSDS describes the chemical's physical hazards such as ignitability and reactivity, gives associated health hazards, and states the exposure limits established by OSHA. In turn, the employer must make the MSDSs available to its employees. In addition, the employer must establish a hazard communication program that educates employees about the HCS, explains the potential hazards of materials in their workplace to employees, and trains employees in methods of using those materials safely. The employer must also label all containers with the identities of hazardous substances and appropriate warnings. Worker Right-to-Know, as implemented on the federal level through the HCS, is designed to give workers access to information which, in turn, may enable workers to make choices about their exposure to toxic chemicals.

OSHA has been criticized by businesses throughout its history. In the 1970s it was criticized for making job-safety regulations that businesses considered to be vague or unnecessarily costly in time or money to enforce. For example, a 1977 OSHA regulation contained detailed specifications regarding irregularities in western hemlock trees used to construct ladders. In the Appropriations Act of 1977, Congress directed OSHA to get rid of certain standards that it described as "trivial." As a result, in 1978 OSHA revoked 928 job-safety standards and increased its efforts to deal with health hazards.

On the other hand, OSHA has been criticized throughout its history for doing too little to protect workers. It has been and continues to be criticized for issuing too few new standards, for failing to protect workers who report violations of OSHA standards, for failing to adequately protect workers involved in the clean up of toxic-waste sites, and for failing to enforce existing standards. For example, in September 1993, 25 men and women perished in a fire in a chicken processing plant in North Carolina. The workers died because they were trapped inside the burning building behind emergency exits that had been bolted by managers of the plant in violation of OSHA standards. During 11 years of operation in North Carolina, the plant had never been inspected by OSHA inspectors.

The alleged reasons for such failures to protect workers range from inadequate funding for research and enforcement to lack of will to enforce. During the 1980s Presidents Reagan and Bush publicly supported efforts to keep agencies such as OSHA "off the backs" of business. Therefore, workers' advocates place at least partial blame for lax enforcement on those administrations. During the 1990s the goal of the Clinton administration has been to reduce the adversarial relationship between businesses and OSHA. For example, OSHA has established a Voluntary Protection Program (VPP), in which about 500 businesses participated in 1999. The program gives official recognition to partnerships between regulated businesses and OSHA. The VPPS are designed to lead to effective safety and health programs in more than 180 industries, saving money for the VPP participants as a result of reduced injury rates.

REFORM LEGISLATION

Although OSHA's HCS and similar state Worker Right-to-Know laws give today's workers access to far more information about their exposure to toxic chemicals than they received in the early 1980s, knowledge alone does not prevent illness, injury, or death. As a result of workers' and other citizens' increased awareness of hazards, however, there are calls for OSHA to do more to protect workers, and there are proposals for new mechanisms to allow workers themselves to take action to protect themselves.

Various OSHA reform bills were considered by the 105th Congress before it adjourned in 1998; several were enacted as law. One authorized a program providing incentives for states to offer on-site consultations and training and education for businesses. The bill included funding for consultative visits by officials from OSHA and its state counterparts. A second addition to OSHA prohibits the secretary of labor from considering issuance of citations or penalties as a performance measure when evaluating OSHA employees. Third, the Postal Employees Safety Enhancement Act extended OSHA coverage to the U.S. postal service. In addition, OSHA received an additional $16.3 million in funding for 1999, bringing its total funding for fiscal year 1999 to a total of $353 million.

Bills providing for comprehensive reforms of OSHA failed. In addition, legislation to permit electronic access to MSDSs was blocked by opponents.

On the other hand, although some Republicans advocated a measure barring OSHA from moving forward with an ergonomics rule, that measure failed. (Ergonomics involves fitting the job to the worker. It is designed to prevent work-related musculoskeletal disorders [WMSDs].) In late 1998 OSHA proposed a new rule that will require employers to establish ergonomics programs to prevent WMSDs. OSHA will take public comments in various cities in late 1999, and it is expected that a final rule will be published in 1999.

The OSH Act is three decades old, and criticisms of the OSH Act and OSHA abound. Further, OSHA faces new challenges related to the globalization of business as it enters the 21st century. For example, in October 1998, the United States and the European Union (EU) held a joint safety and health conference in Luxembourg as a part of a new transatlantic agenda. The United States and the EU agreed to continuing joint meetings in the future which will include work on asbestos and the need for ergonomics programs to protect workers from WMSDs. As we enter the 21st century, debate regarding the role of OSHA and its activities continues to be vigorous. The outcome of that debate will be significant for our society.