OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 29 U.S.C. 651-678, 84 Stat. 1590 (1970) Summary and Description PURPOSE OF THE LAW The declared Congressional purpose and policy of this Act is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." COVERAGE The law applies to every employer engaged in a business affecting commerce who has employees. It applies in all 50 States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, the Trust Territory of the Pacific Islands, Wake Island, the Outer Continental Shelf Lands, Johnston Island, and the Canal Zone. Federal, State and local government employees are specifically excluded from coverage, but may be covered by equally effective requirements. In addition, the Act specifically provides that its terms shall not apply to working conditions protected under other Federal occupational safety and health laws (such as those under the Federal Coal Mine Health and Safety Act; and under the Atomic Energy Act of 1954, as amended, including State agreements under that Act). DUTIES OF EMPLOYERS AND EMPLOYEES Each employer under the Act has the general duty to furnish each of his employees employment and places of employment, free from recognized hazards causing, or likely to cause, death or serious physical harm; and the employer has the specific duty of complying with safety and health standards promulgated under the Act. Each employee has the duty to comply with these safety and health standards, and all rules, regulations, and orders issued pursuant to the Act which are applicable to his own actions and conduct. ADMINISTRATION Administration and enforcement of the Act are vested primarily in the Secretary of Labor and in a new agency, the Occupational Safety (689) and Health Review Commission, a quasi-judicial board of three members appointed by the President. Research and related functions are vested in the Secretary of Health, Education, and Welfare whose functions will, for the most part, be carried out by the National Institute for Occupational Safety and Health established within HEW. The Secretary of Labor is responsible for both promulgating and enforcing job safety and health standards. Occupational safety and health inspections are made by inspectors located in offices established in many communities throughout the country. OCCUPATIONAL SAFETY AND HEALTH STANDARDS In general, job safety and health standards consist of rules for avoidance of hazards which have been proven by research and experience to be harmful to personal safety and health. They constitute an extensive compilation of wisdom which sometimes applies to all employees. An example of this would be fire protection standards. A great many standards, however, apply only to workers while engaged in specific types of work, such as handling compressed gas. It is the obligation of all employers and employees to familiarize themselves with those standards which apply to them and to observe them at all times. The Secretary of Labor is authorized, until April 28, 1973, to promulgate as occupational safety and health standards any existing Federal standards (such as those applying to Federal contractors under the Walsh-Healey Act) or any national consensus standards (such as those issued by the National Fire Protection Association), without complying with the rule-making requirements of the Administrative Procedure Act. In addition, the Secretary of Labor may, upon the basis of information submitted by the Secretary of Health, Education, and Welfare, advisory committees and others, revise, modify or revoke existing standards as well as promulgate new ones. The promulgation of standards under this section of the Act must be done under the procedures set forth in the section itself, including various time limitations, and also under the procedures of the Administrative Procedure Act. Any person adversely affected by a standard issued by the Secretary may challenge its validity by petitioning the U.S. Court of Appeals within 60 days after its promulgation. Unless otherwise ordered by the Court, filing such a petition does not operate as a stay of the standard. Also, the Act provides for the establishment of emergency temporary standards, effective immediately upon publication in the Federal Register, where it is found that employees are exposed to grave danger. The Act also contains provision for standards which may require: • That no emplovee dealing with toxic materials or harmful phys ical agents will suffer material impairment of health or functional capacity, even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. • Development and prescription of labels or other appropriate forms of warning so that employees are made aware of all hazards to which they are exposed. • Prescription of suitable protective equipment. be necessary for the protection of employees. or other tests for employees exposed to health hazards. At the request of an employee, the examination or test results shall be furnished to his physician. The Secretary of Labor, after a hearing on an employer application therefor, is authorized to grant temporary variances from standards to give the employer sufficient time to come into compliance if he can show a need for certain time-extension and has a protective plan of action. Variances may be granted without time limits if the Secretary finds that an employer is using safety measures which are as safe as those required in a standard. Affected employees must be given notice of each such application and an opportunity for hearing. COMPLAINTS OF VIOLATIONS Any employees (or representative thereof) who believe that a violation of a job safety or health standard exists which threatens physical harm, or that an imminent danger exists, may request an inspection by sending a signed written notice to the Department of Labor. Such a notice shall set forth with reasonable particularity the grounds for the notice and a copy shall be provided the employer or his agent. The names of the complainants need not, however, be furnished to the employer. If the Secretary finds no reasonable grounds for the complaint and a citation is not issued, he is required to notify the complainants in writing of his determinations or final disposition of the matter. The Secretary is also required to set up procedures for informal review in a case where a citation is not issued. ENFORCEMENT In enforcing the standards, Labor Department safety inspectors may enter without delay, and at any reasonable times, any establishment covered by the Act to inspect the premises and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any employer, owner, operator, agent, or employee. The Act permits the employer and a representative authorized by his employees to accompany the inspector during the physical inspection of any workplace for the purpose of aiding such inspection. The Secretary of Labor also has power, in making inspections and investigations to require the attendance and testimony of witnesses and the production of evidence under oath. The Secretary of Health, Education, and Welfare is also authorized to make inspections and question employers and employees in order to carry out those functions assigned to HEW under the Act. Where an investigation reveals a violation, the employer is issued a written citation describing the specific nature of the violation. All citations shall fix a reasonable time for abatement of the violation, and each citation (or copies thereof) issued by the Department of Labor must be prominently posted at or near each place where a violation referred to in the citation occurred. Notices, in lieu of citations, may be issued for de minimis violations which have no direct or immediate relationship to safety or health. No citation may be issued after the expiration of six (6) months following the occurrence of any violation. Notification of proposed penalty Within a reasonable time after issuance of a citation for a job safety or health violation, the Labor Department shall notify the employer by certified mail of the penalty, if any, which is proposed to be assessed. The employer then has 15 working days within which to notify the Department that he wishes to contest the citation or proposed assessment of penalty. If the employer fails to so notify the Department, the citation and the assessment shall be final, provided no employee files an objection to the time allowed for abatement (see below Time for Abatement of Hazards”). If the employer notifies the Department within such time that he does wish to contest, the Secretary of Labor will so advise the Occupational Safety and Health Review Commission which shall afford an opportunity for a hearing. The Commission then will issue orders affirming, modifying or vacating the citation or proposed penalty, which orders are final 30 days after issuance. Review of Commission orders may be obtained in the U.S. Court of Appeals. The Review Commission's rules of procedure shall provide affected employees (or representatives thereof) an opportunity to participate as parties to such hearings. Time for abatement of hazards A citation issued by the Department shall prescribe a reasonable time for elimination or abatement of the hazard. This time limit may also be contested if notification is filed with the Department within 15 days. The time set by the Department for correcting a violation shall not begin to run until there is a final order of the Review Commission, if the review is initiated by the employer in good faith and not solely for delay or avoidance of penalties. Employees (or representatives of employees) also have the right to object to the period of time fixed for the abatement of a violation. If, within 15 days after a citation is issued, an employee files a notice with a the Department alleging that an unreasonable time was allowed for abatement, review procedures similar to those specified above apply. Failure to correct violations within allowed time Where time for correction of a violation is allowed, but the employer fails to abate within such time, the Secretary of Labor shall notify the employer by certified mail of such failure and of the proposed penalty. Such notice and assessment shall be final unless the employer contests the same by notice to the Secretary within 15 days. Upon a showing by an employer of a good faith effort to comply with the abatement requirements of a citation, but that abatement has not been completed because of factors beyond his reasonable control, an opportunity for a hearing will be afforded, after which an order affirming or modifying the abatement requirement will be issued. PENALTIES FOR VIOLATIONS Willful or repeated violations of the Act's requirements by employers may incur monetary penalties of up to $10,000 for each violation. Citations issued for serious violations incur mandatory monetary penalties of up to $1,000 for each violation, while penalties in the same amount may be incurred where non-serious violations are cited. A serious violation exists where there is a substantial probability that death or serious physical harm could result. Any employer who fails to correct a violation for which a citation has been issued within the period prescribed may be penalized up to $1,000 each day the violation persists. A willful violation by an employer which results in the death of any employee is punishable by a fine of up to $10,000 or imprisonment for up to six months. A second conviction doubles these criminal penalties. Criminal penalties are also established for making false official statements, and for giving unauthorized advance notice of any inspections to be conducted. RECORDKEEPING REQUIREMENTS Employers are required to keep and make available to the Labor Secretary (and also to the HEW Secretary) records on certain employer activities. Employers are also required to maintain accurate records (and period reports) of work-related deaths, injuries and illnesses. Minor injuries requiring only first aid treatment need not be recorded, but a record must be made if it involves medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job. Employers can also be required to maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents which are required to be monitored or measured and to promptly advise any employee of any excessive exposure and of the corrective action being undertaken. The Secretary of Labor, in cooperation with the Secretary of Health, Education, and Welfare, is authorized to issue regulations in this area which shall provide employees or their representatives with an opportunity to observe such monitoring or measuring, to have access to the records thereof and to such records as well indicate their own exposure to toxic materials or harmful physical agents. For recordkeeping purposes, the Secretary's regulations may also require employers to conduct their own periodic inspections. The Secretary is directed to issue regulations requiring employers to keep their employees informed of their protections and obligations through posting of notices or other appropriate means. The information which employers may be required to give their employees may also include the provisions of applicable standards. STATISTICS The Secretary of Labor, in consultation with the HEW Secretary, is required to develop and maintain an effective program of collection, compilation and analysis of statistics on work injuries and illnesses. In so doing he may make private grants or contracts and grants to States or political subdivisions thereof. The Secretary may also require employers to file such reports of work injuries and illnesses required to be kept as he shall deem necessary. Existing agreements between the Department of Labor and a State for collection of occupational safety and health statistics are preserved |