Chapter III
Occupational Safety and Health
The Bureau of Labor Statistics (based on employer reports) reports that there were more than 5,500 fatal work injuries in 2002, with construction continuing to record the highest number of fatal injuries of any major industry. In addition, there were nearly 4.7 million nonfatal injuries and illnesses reported in private industry workplaces, of which 2.5 million resulted in days away from work, job transfer, or restrictions of some sort (i.e., recuperation away from work, restricted duties at work, or some combination of these actions). Finally, many workers die long after leaving employment from diseases caused by carcinogens, dusts, solvents, fibers, and other hazards encountered through their work.
These statistics point out the great need for workers to play an active role toward insuring that healthy and safe working conditions are provided for them on the job. This chapter contains information for helping to resolve occupational health and safety problems through the legal right to a safe and healthful workplace using the Occupational Safety and Health Act ( OSH Act ) and the Occupational Safety and Health Administration ( OSHA ), the National Institute for Occupational Safety and Health ( NIOSH ), and Rhode Island's Chemical Identification Law .
When workers and/or management are confronted by safety and health hazards, they have a right to take one or all of the following actions:
• exercise their rights under the Occupational Safety and Health Act ( OSH Act ).
• request the National Institute for Occupational Safety and Health ( NIOSH ) conduct an occupational health hazard evaluation of their workplace.
• utilize the Rhode Island law designed to identify the hazards of chemicals used in a work area. R.I.G.L. §§28-21-3, et seq .
What is the purpose of OSHA ?
Congress passed the Occupational Safety and Health Act ( OSH Act or the Act) in 1970 to assure, so far as possible, safe and healthful working conditions for American workers. The Occupational Safety and Health Administration ( OSHA ), created under the Act and within the Department of Labor, is responsible for promulgating legally enforceable standards and charged to:
• encourage employers and employees alike to reduce workplace hazards and to implement new or improved existing safety and health programs;
• develop mandatory job safety and health standards and enforce them effectively;
• establish "separate, but dependent responsibilities and rights" for employers and employees for the achievement of better safety and health conditions;
• maintain a reporting and record-keeping system to monitor job-related injuries and illnesses; and,
• provide for the development, analysis, evaluation, and approval of state occupational safety and health programs.
Who is covered by the Act?
The Act covers almost every private employer and their employees in the country. The areas of covered employment include manufacturing, construction, longshoring, agriculture, law, medicine, organized labor, and private education.
Most private sector workers will be covered by the Act. And since the term employee is broadly interpreted, welfare recipients working pursuant to the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 are considered employees for OSHA purposes. But not all workers are covered. Volunteers, for instance, may or may not be covered under the Act. It will often depend on whether they serve of their own free will and are compensated. Hospital volunteers usually are not considered employees for purposes of the Act, while volunteer firefighters are considered employees.
What businesses are not covered by the Act?
The Act does not apply to businesses over which state and other federal agencies exercise statutory authority concerning occupational safety and health. Also exempted from the law are:
• self-employed persons, and
• farms at which only immediate members of the farm employer's family are employed.
Are public sector employees covered by the Act?
The Act contains special provisions to assure safe and healthful working conditions for federal employees. The responsibility to ensure that each federal agency establishes and maintains a comprehensive occupational safety and health program consistent with OSHA standards falls to the head of each federal agency. However, OSHA does retain jurisdiction over federal agencies (apart from the military) and does inspect and issue citations to federal agencies.
OSHA does not cover Rhode Island's public employees. Instead, the responsibility to establish and maintain an occupational safety and health program belongs to the head of each state agency and of each municipal agency. The creation of codes for the elimination of safety or health hazards is the duty of the Code Commission for Occupational Safety and Health, within the Department of Labor and Training, and the Commission has adopted federal OSHA standards to protect public employees from workplace hazards. Responsibility for administering and enforcing this legislation falls on the Rhode Island Department of Labor and Training.
Do employers have a duty to provide a safe and healthful workplace?
Yes. The employer's first obligation under the Act is to provide safe and healthful working conditions. The general duty clause requires an employer "furnish to each of his or her 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... ." (Section 5 of the OSH Act). The employer is also obligated to "comply with occupational safety and health standards promulgated under [the] Act." The Secretary of Labor sets the occupational safety and health standards. Everything in the Act focuses on these two obligations.
What do these obligations include?
The first obligation is the general duty clause designed to cover all hazards that don't fall under a specific standard or regulation. OSHA may cite violations of this employer duty directly from the language of the Act, where no published or promulgated standard exists. The general duty clause can only be enforced when OSHA has determined that:
• there is no standard,
• it is a recognized hazard,
• employees are exposed,
• the condition is of a nature that could cause death or serious physical harm,
• there is a feasible and useful method to correct the hazard.
The second obligation is compliance with existing federal occupational safety and health standards (i.e., specific standards). The specific standards are detailed and technical, and cover nearly all aspects of the job environment for selected industries. Some of the specific standards include:
• control of ventilation, air contaminants, and noise levels
• chemical hazard communication
• keeping the workplace clean and orderly
• emergency exits, fire protection, sprinklers
• evacuation plans
• medical and first-aid treatment
• handling and storage of explosives, hazardous wastes, and other toxic materials
• personal protective equipment
• training procedures
• electrical standards
• general working conditions (waste disposal, toilets, showers, dressing rooms, ventilation, and food handling)
What other legal responsibilities do employers have?
Employers also have a number of other legal responsibilities. Generally, they must be familiar with OSHA standards and keep employees informed about OSHA and the various safety and health matters with which they are involved. Specifically, the employer is obligated to:
• conduct examinations of the workplace to ensure it conforms to OSHA standards;
• provide proper warnings to employees of potential hazards;
• provide OSHA -mandated training;
• maintain certain OSHA -required records concerning injuries, illnesses, and fatalities;
• report fatalities and injuries requiring three or more hospitalizations to OSHA within eight hours;
• abate cited violations within the period prescribed by OSHA ;
• post the Job Safety and Health Protection poster informing employees of their rights and responsibilities under the Act; and,
• where employees are exposed to particularly hazardous materials (for example: asbestos, vinyl chloride, or lead), the employer is obligated to conduct periodic testing to determine the presence and concentration of hazardous substances. In addition, the employer must provide periodic medical exams for those employees.
Other obligations are detailed within this section.
Is an employee entitled to know if the employer seeks a variance from an OSHA standard?
Yes. The OSH Act provides that an employee has the right to be notified if the employer applies for a variance from an OSHA standard. Furthermore, an employee may testify at a variance hearing and appeal the final decision.
What duties do employees have under the OSH Act ?
Employees are also required to comply with OSHA standards, rules, and regulations. It is important to note, however, that an employer is not relieved of his or her obligations under the Act because an employee fails to comply with OSHA regulations.
What rights do employees have under the OSH Act ?
Employees have numerous rights under the Act relating to information about safety and health hazards, monitoring of hazards, and inspections of the worksite. Some of these rights derive directly from the Act and some derive from standards promulgated pursuant to the Act. Several of these standards are explained more fully below.
What does the Chemical Hazard Communication Standard entail?
The purpose of the Chemical Hazard Communication Standard is "to ensure that the hazards of all chemicals produced or imported are evaluated, and that information is transmitted to employers and employees." This means that employers must inform employees about the dangers presented by various chemicals, the necessary precautions to be taken when working with these chemicals, and the procedures that must be adopted and followed if employees are involved in a job-related accident or exposed to a hazardous chemical.
The other specific provisions of the Chemical Hazard Communication Standard include:
• Hazard Communication Written Program
• Material Safety Data Sheets
• Training
• Labeling
What is the Hazard Communication Program ?
OSHA requires employers who use, produce, or distribute hazardous chemicals and substances to develop a written Hazard Communication Plan . This plan must describe the hazardous chemicals and provide details on how the employer will protect employees from these hazards.
What are Material Safety Data Sheets ?
OSHA mandates that each company that manufactures, imports, or distributes hazardous chemicals provide Material Safety Data Sheets ( MSDS ) to the companies to which they ship those chemicals. The MSDS must list the chemicals' properties and dangers, the proper means of handling them, appropriate medical treatment in case of exposure (inhalation, ingestion, skin contact or absorption), fire and explosion limit information, dangerous chemical reactions, acute and chronic health hazards, handling and labeling, disposal procedures in case of accidents, and how to avoid exposure.
Manufacturers, distributors, and importers of chemicals are required to label all hazardous containers. The labels must identify the chemical, warn of potential dangers, and provide the name and address of the manufacturer, distributor, or importer.
Must employers permit employees (or their representatives) access to records of exposure?
Yes. Employers must allow employees and former employees (or their representatives or attorneys) to see all records (including medical records) of employees' exposure to toxic substances and harmful agents within fifteen days of the written request. OSHA representatives must be given immediate access to exposure records. Employers must retain records of exposure for thirty years.
What sort of information and training does the Chemical Hazard Communication Standard mandate?
Employees must be informed of operations in their work area where hazardous chemicals are present. The standard also requires employers provide employees with training on the handling of any hazardous chemical as soon as it is introduced into their work area or as soon as an employee is assigned to an area containing a hazardous chemical. This training must include an explanation of the requirements of the Chemical Hazard Communication Standard , how to recognize when a hazardous chemical is being released into the work area, physical and health hazards of chemicals in the work area, and appropriate protective measures.
What does the Personal Protective Equipment Standard entail?
This standard requires employers to provide and employees to use personal protective equipment (PPE) when hazards are present or likely to be present which necessitates the use of PPE.
What do the Workplace Fire Safety Standards entail?
These standards require employers to provide proper exits, fire fighting equipment, and employee training to prevent fire deaths and injuries in the workplace. The standards also requires employers to develop and implement emergency action plans.
What does the Bloodborne Pathogens Standard entail?
This standard covers all employees who, as a result of performing their job duties, could "reasonably anticipate" coming into contact with blood and other potentially infectious materials. The standard requires employers to develop and implement a written plan covering how employees will be protected from exposure to blood and other potentially infectious materials. Employers must also provide training and personal protective equipment in accordance with the employer's written plan.
Can workers request that OSHA conduct an inspection of their workplace?
Yes. Under the Act workers have the right to request that OSHA inspect their workplace if the workers believe hazardous conditions or violations of standards exist. The responsibility for conducting the investigation and determining any apparent violation falls on the OSHA compliance officers. If OSHA decides not to inspect, a worker may request an informal review of that decision.
Under what circumstances does OSHA conduct inspections?
OSHA inspections are usually conducted without advance notice. Inspections priorities are:
• where there is an allegation of imminent danger;
• where a fatality or catastrophe has occurred; or
• in response to a formal complaint or to a referral.
OSHA also conducts programmed inspections and follow-up inspections.
Federal OSHA and occupational safety and health agencies conduct approximately 80,000 inspections per year. This amounts to slightly more than one-percent of the nearly six million workplaces covered by the Act.
A non-formal complaint will result in notification of the employer and a time frame for a written response to OSHA . The complainant will also be notified and OSHA requests that the complainant inform OSHA if no corrective action is taken within the specified time period.
What does an OSHA inspection entail?
An OSHA inspection can be very comprehensive. After presenting appropriate credentials to the owner, operator or agent in charge, the OSHA compliance officer is authorized to inspect and investigate the work site during regular working hours and at other reasonable times. Inspections usually include a check of company records, a review of compliance with the Hazard Communication Standard , an examination of workers' personal protective gear and fire-protection measures, and a review of the company's general health and safety plan.
Under the Act, a compliance officer may inspect "all pertinent conditions, structures, machines, apparatus, devices, equipment and materials therein. . .." In addition, the compliance officer has authority to "question privately any such employer, owner, operator, agent or employee."
Once the compliance officer has been permitted entry, interference with the inspection by the employer may be deemed a refusal. Examples of interference include refusals to permit the walkaround, the refusal to permit essential photographs or videotapes, the refusal to permit employee interviews, and the refusal to allow the attachment of sampling devices.
The compliance officer will conduct an opening conference with the representatives from the employer and employees (during which the procedures for the inspection will be discussed) and a closing conference with the employer or the employer's representative (during which the compliance officer will review the findings and inform the employer of any apparent violations).
Can OSHA ever give employers advance notice for an inspection?
Yes, but only under special circumstances. An unauthorized advance notice may result in criminal charges. The special circumstances for which advance notice is permitted include:
• imminent danger situations to allow for swift correction;
• inspections that must take place after regular business hours, or that require special preparation;
• cases where notice is required to assure that the employer and employee representative(s), or other personnel will be present; and,
• situations in which the OSHA area director determines that advance notice would produce a more thorough or effective inspection. In such a case, employers must inform their employees' representative or arrange for OSHA to do so.
What can workers do during an OSHA inspection?
Workers can play an important role during OSHA inspections. The compliance officer must determine as soon as possible after arriving whether the employees at the workplace are represented. If they are, employee representatives shall be permitted to participate in the walkaround. An employee representative refers to:
• a representative of the certified or recognized bargaining agent, or, if none,
• an employee member of a safety and health committee who has been chosen by the employees as their OSHA representative, or
• an individual employee who has been selected as the walkaround representative by the employees in the workplace.
At workplaces where there is more than one employer, it is permissible to have more than one employer-employee representative for the different phases of the walkaround.
During the inspection, employees may show the compliance officer the violations and ask verbally or in writing for appropriate action to be taken. If no citation is issued as a result of the employee's complaint, the area director must send written notice to the employee or employees stating the reason that no citation was issued.
Employees also have the right to observe any monitoring or measuring of hazardous materials and see the resulting records.
If an employer resists participation by an employee representative it shall be construed as a refusal to permit the inspection.
How do employees discover the inspection results?
When violations are found, the OSHA area director will send a citation to the employer, which the employer must post at or near where the violation occurred. The citation lists the nature of the violation, the standard violated, the time allowed to repair, fix, or replace, and the penalty. The time permitted by OSHA to correct the violation is called an abatement time . There is a penalty for not conspicuously posting this citation at or near the violation.
Can citations be contested?
If the time allowed for correction seems too long and employees wish to contest the citation, they may file a notice of contest by writing the area director within fifteen working days from the date of the employer's posting of the citation. After that, the decision is final.
The employer also has fifteen working days to appeal the citation, the abatement time, or the penalty. If the employer appeals or asks for a hearing, employees must be notified and allowed to participate in any hearing. After a hearing, the result may be appealed by anyone affected.
Rhode Island workers should direct their complaints to either one of the following offices:
Employees of private employers Employees of the state and municipalities:
and the federal government:
U.S. Department of Labor R.I. Dept. of Labor and Training
OSHA Providence Office Division of Occupational Safety
Federal Building 1511 Pontiac Avenue
380 Westminster Street Cranston, Rhode Island 02920
Providence, Rhode Island 02903 (401) 462-8557
(401) 528-4669
Complaints may also be filed on the internet at the worker page of OSHA 's Homepage: www.osha.gov/as/opa/worker/index.html
Can a worker ever refuse to do certain work?
Workers have a right to refuse to do a job under very limited circumstances. The workers must believe "a danger exists which could reasonably be expected to cause death or serious physical harm immediately." Thus, the hazard must be both serious and imminent. This right is not contained in the law, but in OSHA regulations which have been upheld by the U.S. Supreme Court.
Example: A boiler about to explode is clearly an imminent danger . Long-term exposure to toxic substances would not likely be regarded as an imminent danger because there normally is sufficient time to have such a hazard abated through regular OSHA inspection procedures.
When an imminent danger condition is discovered by an employee, the employee should act immediately by contacting a supervisor and, if a member of a union, a union representative. If a worker refuses to do a job because of a perceived imminent danger, it is extremely important that the employee inform the supervisor, in front of a witness, that, while the employee refuses to work in the location or function which poses the immediate danger, the employee is willing to work at another location or in another function that is occupationally safe and healthful.
If the employer fails to remedy the situation, employees should contact the OSHA area office to report the condition. If OSHA determines an imminent danger exists, OSHA will attempt to have the employer abate the condition. If the employer fails to abate the condition, OSHA can initiate legal action with the Secretary of Labor's office.
As noted above, the right to refuse work was upheld by the U.S. Supreme Court. The court ruled unanimously that an employee might refuse hazardous work provided that:
"[T]he employee is ordered by his employer to work under conditions that the employee reasonably believes pose an imminent risk of death or serious bodily injury, and, the employee has reason to believe that there is not sufficient time or opportunity either to seek effective redress from his employer or to apprise OSHA of the danger." Whirlpool Corporation v. Marshall, Secretary of Labor , 445 U.S. 1, 100 S.Ct. 883, 63 L.Ed.2d 154 (1980).
It is important to note that the employee runs the risk of discipline should a court subsequently determine that the employee acted unreasonably or in bad faith. NLRB v. Washington Aluminum Co. , 370 U.S. 9, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962). Still, the employee may be protected under other law. See, NLRA Protected Actions - Hazardous Work Refusal Under §8(a)(1).
Can a worker legally be discriminated against for filing an OSHA complaint or testifying at a hearing?
No. Section 11(c) of the Act prohibits discrimination for filing an OSHA complaint. Discrimination is understood broadly. It does, of course, include discharge, but also includes discrimination in compensation, terms, conditions or privileges of employment.
When a compliance officer presents a complaint, the identity of the complaining employee is deleted. Also, information given to the compliance officer during the inspection is confidential. But even if an employer knows who is invoking the OSHA complaint, the employee is legally protected from discrimination. The Act provides:
"No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded under this Act."
If discrimination does occur, the employee must notify the Secretary of Labor or a local OSHA office within thirty days of any act of discrimination. The Secretary can investigate the complaint and go to federal district court to get appropriate relief, including rehiring or reinstatement with back pay.
What function does NIOSH serve?
The National Institute for Occupational Safety and Health ( NIOSH ) is charged with identifying and evaluating new or challenging health hazards on the job. NIOSH also updates and revises previously promulgated standards. NIOSH has no authority to promulgate or enforce standards, but is responsible for conducting the research about occupational hazards. NIOSH makes its recommendations to the Department of Labor.
Section 20 (a) (6) of the Occupational Safety and Health Act stipulates that upon written request from an employer or authorized representative of employees, the National Institute for Occupational Safety and Health ( NIOSH ) will determine whether any substance normally found in a workplace has potentially toxic effects when used in the concentrations found within that place of employment. After completion of its study, NIOSH submits its findings to OSHA , the employer, and affected employees as soon as possible.
NIOSH can be extremely important in helping workers conduct a health-hazard evaluation of a particular workplace. Workers can request a NIOSH health-hazard evaluation by completing a request form provided by the agency and mailing it to:
NIOSH, C-13
4676 Columbia Parkway
Cincinnati, Ohio 45226
1-800-356-4674
What protections do Rhode Island laws provide to workers with respect to hazardous substances?
Rhode Island's Hazardous Substance Right-To-Know Act requires an employer who "uses, transports, stores, or otherwise exposes its employees to toxic or hazardous substances" maintain and make available to the employees a list of all hazardous substances to which the employees are or may be exposed.
Employers must also:
• maintain Material Data Safety Sheets conforming to OSHA regulation;
• update on an annual basis the chemical identification list;
• ensure that the local fire department is informed of the types and locations of hazardous substances on the premises; and,
• provide training and education to an employee regarding hazardous substances prior to the commencement of the employee's work with such materials.
In addition, because an employee has a Right to Know , an employer must provide, upon request by an employee or an employee's authorized representative, information regarding hazardous materials within three working days from the date of request.
The employer's failure to provide the employee with the requested information may trigger the employee's right to refuse to work with or be exposed to the hazardous material. Unlike the more limited right to refuse mentioned above, the Rhode Island law does not require the employee to perceive an imminent danger before invoking the right. Discipline of the employee for exercising this right is prohibited by statute.
More information can be obtained by contacting the Rhode Island Department of Labor and Training, Division of Occupational Safety at (401) 462-8557.
Do any other laws provide Rhode Island citizens with protection from chemical hazards?
Yes. Under the Superfund Amendments and Reauthorization Act ( SARA , 42 U.S.C. §9601 et. seq. ), Congress passed the Emergency Planning and Community Right to Know Act . The Emergency Planning and Community Right to Know Act requires employers who have hazardous chemicals in their workplaces to report them to various state and local emergency agencies and local fire departments.
Employers must also submit a list of hazardous chemicals they regularly release into the environment and the quantities released, as well as notify emergency agencies of the release of any harmful chemical into the environment.
Does Rhode Island have a law or does OSHA have a standard addressing ergonomic designs?
Rhode Island has no law relating to ergonomics, although the Workers' Compensation statute does recognize certain injuries sustained over a longer period, such as carpal tunnel syndrome, occurring as a consequence of employment as compensable.
OSHA' s ergonomic standards were repealed shortly after enacted in 2001, although using the general duty clause, OSHA has developed an approach to address musculoskeletal disorders (MSDs) in the workplace, including inspections and the development of voluntary industry-specific and task-specific guidelines. Again, the guidelines are voluntary and an employer's failure to implement the guidelines will not be deemed violation of the general duty clause of the OSH Act.
Does either OSHA or Rhode Island regulate smoking in the workplace?
Rhode Island does regulate smoking in the workplace. OSHA 's efforts to regulate in this area, via its rulemaking authority, have stalled.
Employers are required by the Rhode Island Workplace Smoking Pollution Control Act (R.I.G.L. §§23-20.7-1, et seq. ) to adopt, implement and maintain a written smoking policy which must be posted in conspicuous locations throughout the workplace. Employers are also required to make reasonable accommodations for the preferences of both smoking and non-smoking employees - particularly those employees, who as a result of physical conditions are unduly sensitive to tobacco smoke - although employers are not required to make any structural changes to create these accommodations. Non-smoking areas at work must be clearly designated.
The employer may decide to adopt a policy that prohibits smoking throughout in the workplace. This regulation is enforced by the Rhode Island Department of Health. Complaints must be in writing and signed and mailed to:
Rhode Island Department of Health
Community Health Services
3 Capitol Hill, Room 209
Providence, RI 02908
(401) 222-2231
