OSH Law Primer, Part I: Understanding the OSH Act and OSHA

Quick Hits

• The purpose of the OSH Act is to “assure safe and healthful working conditions for working men and women.”
• The OSH Act regulates all private-sector employment and specifically exempts federal and state employers.
• Twenty-one states and Puerto Rico administer their own OSHA-approved workplace safety and health programs, known as “state plans.”

The Occupational Safety and Health Act was passed by the U.S. Congress in 1970, and, in addition to other things, the OSH Act called for the creation of an agency to develop regulations to effectuate its purpose and administer its requirements. The OSH Act, whose purpose is to “assure safe and healthful working conditions for working men and women,” regulates all private-sector employment, and it specifically exempts federal and state employment. The OSH Act allows states to develop and administer their own plans, known as “state plans.” State plans generally regulate both private- and public-sector employment. Some states created agencies to regulate health and safety in public-sector employment while OSHA regulates private-sector employment. Currently, twenty-one states and Puerto Rico administer state plans that cover private employers.

OSHA Standards

OSHA has established standards that cover broad industry sectors, including “general industry,” construction, maritime, and agriculture. “General industry” is defined by OSHA as “all industries not included in agriculture, construction or maritime,” including the manufacturing sector. For each of those sections, OSHA has promulgated a variety of categories of regulations, referred to as “subparts.” Examples of subparts in the general industry standards are:

• Subpart D: Walking-Working Surfaces (ladders, step bolts, stairways, dockboards, etc.)

• Subpart E: Exit Routes and Emergency Planning (coverage and definitions, compliance with alternate exit-route codes, design and construction requirements for exit routes, etc.)

• Subpart F: Powered Platforms, Manlifts, and Vehicle-Mounted Work Platforms (elevating and rotating work platforms, standards, organizations, etc.)

Under each of these subparts, any number of regulations, referred to as “standards,” were created. There are health standards and there are safety standards. Health standards are created to protect the health of employees, both short- and long-term, and typically relate to things like chemical exposures, radiation exposures, and noise exposures. Safety standards are created to protect employees from injuries and death resulting from the physical conditions of the workplace. When there is not a specific standard that applies to a particular hazard, OSHA can cite an employer under the Section 5(a)(1) General Duty Clause, which operates as a catch-all for violations under the OSH Act.

OSHA standards are enforced by Certified Safety and Health Officers (CSHOs), compliance officers who perform investigations (referred to as “inspections,” which often include walk-throughs of workplaces) that involve taking photographs, collecting employer records, and interviewing employees and managers. Depending on what a CSHO finds, he or she may recommend that one or more citations be issued to an employer.

Citations

If an employer receives a citation, the citation may include a fine that carries with it an obligation to correct any alleged violation. Citations are “classified” or described, from least severe to most, as other-than-serious, serious, or willful. In most instances, when a citation is issued, an employer has three options relative to the citation—accept it, contest it, or attempt to negotiate a resolution of the citation.

The effort to resolve a citation informally is done with the OSHA area office that issued the citation at an informal conference. If a resolution is not reached at the informal conference, the employer has fifteen business days from the date of receipt of the citation to file a notice of contest. If the employer simply wishes to file a notice of contest, that too must be done within fifteen business days of receipt of the citations.

A contest of OSHA citation is a form of appeal and is similar to litigation in a court, with the exception that an administrative law judge on the Occupational Safety and Health Review Commission (OSHRC) decides the matter. If an employer is not satisfied with the administrative law judge’s decision, that decision can be appealed to a larger OSHRC panel, and, ultimately, to the court of appeals for the federal circuit where the dispute arose. Procedures in state plan states vary, but they resemble what is described here.

Finally, the OSH Act provides whistleblower protections for employees who complain about unsafe working conditions. Section 11(c) of the OSH Act prohibits retaliation against employees who engage in protected activity by raising health or safety complaints to the government or their employers.

Ogletree Deakins’ Workplace Safety and Health Practice Group will publish additional articles on the Workplace Safety and Health blog as an ongoing part of its OSH Law Primer series. The next article in the series addresses the rulemaking process.

For further information on this topic, please request a recording of our webinar, “OSH Law Primer, Part I: Understanding the OSH Act and OSHA,” which took place on Thursday, February, 22, 2024.

The OSH Law Primer webinar series provides an overview of OSHA, the OSH Act, and how both influence workplaces in the United States.

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