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Using OSHA in the Workplace
- Although it has long been the target of attacks by business and anti-worker lawmakers and, as a worker-protection agency, it is far from perfect, every worker should know what protections the Occupational Health and Safety Administration (OSHA) can provide on-the-job.
- Here, we describe who is covered, how and when to contact OSHA, filing grievances and OSHA complaints and the right workers have to refuse unsafe work.
OSHA, the Occupational Safety and Health Act was passed in 1970 after years of struggle by unions and other citizens' rights organizations. The Act gives the Secretary of Labor the right to set standards for workplace health and safety and to create the Occupational Health and Safety Administration to oversee the application of these standards.
Who is Covered?
The Federal OSHA law covers all workers in the private sector; the law does not cover Federal, State or Municipal employees. One of the problems with U.S. labor laws is that they have almost always been written to be covered by the "commerce clause" of the Constitution. The "commerce clause" gives the Federal government the right to regulate commerce between the different states. The first paragraph of OSHA reads:
(a) the Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.
So according to Congress, the real reason to pass OSHA is that injuries to workers cost businesses money and the Federal government wants to help business by eliminating these extra costs. The problem with making OSHA constitutional by using the commerce clause is that OSHA then becomes vulnerable to attacks by businesses who claim it costs them more to make a workplace safe than it would cost to pay for the injuries that occur.
What About Public Employees?
Under the Federal OSHA law public workers are exempted but the law contains a provision that allows each state to set up its own OSHA law and program. These state OSHAs must be "at least as effective" as the Federal OSHA and they must cover all workers including public workers in that state. Most states that have their own OSHA follow the Federal OSHA standards and rulings.
The following states have their own OSHA law which covers both private sector and public sector workers: Maryland, Indiana, Michigan, Vermont, California, Iowa, Minnesota, North Carolina, Virginia.
New Jersey, New York, Connecticut and Ohio have state plans that cover public sector workers (although the OSHA website does not list Ohio's plan on its list of state-approved plans) while private sector workers are covered by the Federal OSHA law.
What Does OSHA Cover?
There are two basic parts of OSHA coverage. The first states the purpose of the law and what employers are obligated to do. This is often called the "General Duty Clause."
Section 654 (a) each employer:
(1) 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 employees;
(2) shall comply with occupational safety and health standards promulgated under this chapter.
This General Duty Clause is also the "catch all" clause. If there is no specific OSHA standard then complaints or grievances can be filed under it. Many new hazards have been recognized under this clause. For example, the employer can be cited for failing to provide a workplace free from hazards if they fail to stop an employee from harassing another employee.
The second part of OSHA coverage are specific health and safety standards that the Secretary of Labor authorizes OSHA to enact. There are hundreds of OSHA standards limiting workers' exposure to chemicals, dust, noise, unsafe machinery, etc. Although these standards are constantly under attack from big business and the Bush Administration has succeeded in destroying implementation of an ergonomics standard, other standards are still in place and can be obtained through the OSHA website: www.osha.gov.
Filing Health & Safety Grievance
Grievances can therefore be filed over an employer violating a specific OSHA standard or a violation of the General Duty Clause (for failure to provide a workplace free from hazards.) If the union contract contains a specific health and safety clause, a grievance can also be filed over a violation of that clause.
Using Information Requests
If a steward believes that an unsafe condition exists, the first step is to request that your employer correct the situation. A steward does not have to first prove that the situation is an actual violation of OSHA; make the request to correct the situation first.
If the employer refuses, then consider what information you as a steward need to determine if an OSHA violation exists. Here are some of the types of information that the employer should provide if it is requested.
- Material Safety Data Sheets - These are facts sheets that are supplied by the makers of all substances. They explain the possible hazards that the substances might present.
- Accident reports - These will let the steward know if there have been previous problems.
- Copies of any previous OSHA citations.
- Any studies done by the employer concerning the suspected hazard (air quality studies, noise studies, studies of health problems etc.)
- Operating instructions for machinery.
The union can also call the nearest Federal or State OSHA office and request information. Explain the problem and why it appears to be a health or safety violation and ask if they will check to see if there is an OSHA standard that is being violated.
If it appears that there is a legitimate violation of an OSHA standard, the General Duty Clause or the contract, then a grievance should be filed.
Filing an OSHA Complaint
The union, a steward or an employee can also file a complaint with OSHA. This can be done over the phone or in person at an OSHA office. The first thing OSHA wants to know is if the employer was approached and asked to fix the problem. If the employer refused then usually OSHA will proceed.
Upon filing a written and signed complaint an employee can formally request that his/her name be withheld from the employer.
An OSHA investigator will usually try to contact the employer and work things out over the phone. If they aren’t satisfied they may make an inspection of the workplace to determine if the violation actually exists. When the inspector is at the worksite, the union has the right to have a representative of its choosing accompany the inspector.
The OSHA inspector will only look for the specific problem that was cited in the complaint. They will not do a general inspection.
Sometime later (don’t expect super fast results unless the problems are really life threatening) OSHA will either dismiss the complaint or issue a citation against the employer. This will include what the employer has to do to fix the problem, how long they have to fix it and how much of a fine, if any, they will have to pay.
The Right to Refuse Unsafe Work
Under certain conditions workers have the right to refuse to perform unsafe work. These situations are extremely limited and the proper procedures must be followed. Here is what OSHA says:
If a health or safety hazard at your workplace puts you in imminent danger of death or a serious injury including situations immediately dangerous to life and health, tell your supervisor immediately. Ask that the condition be corrected and that no workers be exposed to the danger until it is eliminated or controlled.
OSHA then says if your employer refuses to fix the situation, call the nearest OSHA office immediately and tell them the specific facts. Because it is being reported as a problem of "imminent danger" it gets the highest priority and an inspector will be there within one day.
Here’s the problem, if the danger is real, who wants to wait a day while doing the work, for the inspector to come. Here’s what OSHA says:
OSHA can protect you if you are discharged or otherwise disciplined for refusing to perform a task that would expose you to imminent danger of death or serious injury, providing you have sought and been unable to obtain a remedy from your supervisor and there is insufficient time to have the condition corrected through filing a complaint with OSHA.
You may also be protected by the National Labor Relations Board (NLRB) if you refuse dangerous work in cooperation with or on behalf of other workers. OSHA and the NLRB cooperate in refusal-to-work cases involving health or safety hazards. You may contact either agency to discuss your case if you have been punished for refusing dangerous work.
The problem here will always be the question of whether or not the danger is immediate.
Example: An employee has been working on a machine for weeks and hasn’t been hurt but has been asking to have the machine repaired. The supervisor never gets around to having maintenance do the repairs. The problem could be serious. One day she gets fed up and refuses to run the machine saying her life is in danger.
The problem here is that the employee has been running the machine for weeks without getting hurt. Even if she is right, it will be hard to argue that the danger NOW is imminent, and therefore she has the right to refuse to run the machine.
Example: A Head Start employee in a state with a state OSHA plan (and therefore covered) is told to make a house visit at night to a certain client. The client's husband had previously threatened the Head Start employee to stay away. The employee calls the client and is told that her husband has been drinking and it is not safe to come over. The employee's supervisor orders her to go anyway.
In this case the Head Start employee would have grounds for refusal. She should be sure to contact her steward and they could again approach the supervisor. They could ask for the supervisor to arrange police escort or to send several people along. If all this is refused, then, since the threat to her safety was immediate, she could refuse to go.
No employee or steward should make the decision to refuse work by themselves. As OSHA points out, acting as a group is safer because you may then have rights under the NLRB. Since workers could be fired for refusing to perform work, the union should be involved in trying to make the employer fix the situation.