VII

MHR 6401, Employment Law 1

Course Learning Outcomes for Unit VII Upon completion of this unit, students should be able to:

8. Evaluate the Occupational Safety and Health Administration’s (OSHA) regulatory power in the context of workplace safety. 8.1 Summarize the manner in which OSHA enforces workplace safety and health standards. 8.2 Explain the requirements of the Occupational Safety and Health (OSH) Act. 8.3 Assess a legal case for compliance with OSHA standards.

Course/Unit Learning Outcomes

Learning Activity

8.1 Unit Lesson Chapter 15 Unit VII Case Study

8.2 Unit Lesson Chapter 15 Unit VII Case Study

8.3 Unit Lesson Chapter 15 Unit VII Case Study

Reading Assignment Chapter 15: Occupational Safety and Health, pp. 545–584

Unit Lesson The primary objective of workplace safety is the prevention of workplace injuries, illnesses, and fatalities. In 2014, almost 4,821 U.S. workers died from workplace injuries. There were approximately 2.9 million nonfatal workplace injuries and illnesses (Bureau of Labor Statistics, 2016). These incidents cost businesses huge sums of money and take a significant toll on the victims and their families. One death is too many, but the number of deaths, injuries, and illnesses has generally declined over time, due in no small measure to safety requirements at the federal level. Prior to the passage of the Occupational Safety and Health Act (OSH Act) in 1970, only the common law bound employers to provide employees with a safe workplace. Further, employers had several common law defenses that often enabled them to avoid liability. Employees had few protections from unscrupulous employers who eschewed safety for profit. The OSH Act covers almost all employers and employees and is critically important to those who support employment law compliance. Any employer in a business affecting commerce is subject to and covered by the OSH Act. The limited exceptions to coverage are primarily the self-employed and farms that employ only immediate family of the owner. Workplaces covered by other federal laws, such as the mining, nuclear, railroad, and airline industries, as well as state and local governments (unless otherwise permitted by state law) are also excluded from the OSH Act (OSHA, n.d.-a).

UNIT VII STUDY GUIDE

Occupational Safety and Health

MHR 6401, Employment Law 2

UNIT x STUDY GUIDE

Title

The OSH Act imposes two basic requirements on employers to accomplish the goal of a safe workplace. First, the employer must comply with all the safety and health standards set by the U.S. Department of Labor

(DOL). Second, the employer must furnish each of its employees a workplace free from recognized hazards that are causing or likely to cause death or serious physical harm. The Occupational Safety and Health Administration (OSHA), which falls under the DOL, is charged with enforcing the OSH Act. OSHA translates the basic requirements imposed on employers by the OSH Act into specific actions. OSHA holds employers responsible for proactively adopting safety practices, communicating them to employees, insuring employees use them, monitoring working conditions, alerting employees to potential hazards, and reporting work-related deaths and injuries (OSHA, n.d.-a). OSHA has established industry standards to inform employers how to guarantee a safe and healthy workplace.

The four major categories of OSHA standards are general, construction, maritime, and agriculture. To determine the industry standards an employer needs to follow, he or she must determine the appropriate industry code that applies to the organization within the North American Industry Classification System (NAICS). While some OSHA standards are specific to one industry, many of them apply across industries, such as standards for personal protective equipment and hazardous communication. Most employers will need to implement a combination of standards including the associated training and safety inspection requirements to be compliant. OSHA requires that employers prominently display federal workplace health and safety posters in their workspaces. To help employers navigate the requirements imposed on them, OSHA’s website contains a wealth of information for various types of employers, including small businesses. The site’s resources include interactive tools for both employers and employees. Every state has free workplace consultations available to small businesses that want onsite help in establishing safety and health programs. This assistance will also help in identifying and correcting workplace hazards. Additionally, OSHA has a network of compliance assistance specialists in local offices to provide tailored information and training to employers and employees. There are 22 states that have OSHA-approved job safety and health programs. These are operated by the individual states instead of adhering to federal OSHA standards. All state plans are approved and monitored by OSHA, and they require that state-run safety and health programs must be at least as effective as the federal program. If the state programs are compliant, OSHA provides as much as fifty percent of the funding for each program (OSHA, n.d.-c). What is the downside of lax compliance with OSHA requirements? After years of a legal anomaly that prevented OSHA from increasing penalties, in 2016, Congress passed legislation that allowed the agency to adjust penalties to more appropriate and modern levels. Serious violations of the law increased from $7,000 to $12,471 per violation. Failure to abate dangerous or hazardous conditions rose from $7,000 to $12,471 per date after the date recorded on an OSHA citation for correction of the violation. In addition, willful or repeated violations increased from $70,000 to $124,709 per violation (Smith, 2016). In 2016, OSHA released new injury and illness reporting rules that change the way employers have long done business and in an unusual twist, call into question employers’ drug testing practices after accidents. Traditionally, employers track and maintain injury information internally, though fatalities and serious injuries must be reported to OSHA immediately. The new rule, however, requires electronic submission of the information by the employer annually to OSHA. In turn, OSHA will then publish the data online for anyone to access. There are also new requirements related to employee involvement in employer recordkeeping practices and the prevention of discrimination and retaliation. Employers must inform each employee how to properly report a work-related injury or illness. Further, employers must establish a reasonable procedure for

OSHA Reporting Form (Occupational Safety and Health Administration, n.d.-b)

MHR 6401, Employment Law 3

UNIT x STUDY GUIDE

Title

employee reporting. A process is not reasonable if it would prevent or discourage a reasonable employee from correctly reporting a workplace injury or illness. Employers must inform employees of their right to report injuries and illnesses and inform them that they cannot be fired or discriminated against for reporting (Gelb, Hennessy, Olie, & Petrides, 2016). The twist is the impact on employer drug testing policies. In conjunction with this new rule, OSHA announced that policies that call for across-the-board testing after an accident deter employees from reporting injuries and may not be reasonable. OSHA indicates that employers should engage in post-injury drug testing only when there is a reasonable potential that drug use by the reporting employee contributed to the injury or illness and further, only when the test can precisely indicate that impairment was caused by the use of drugs (Gelb et al., 2016). This guidance does not appear to prevent testing where there are facts that support that drugs could have contributed to the incident, such as slurred speech, glazed eyes, stupor, or other signs generally associated with drug or alcohol intoxication. Beyond this, it may be a challenge to determine when it is appropriate to drug test employees following reported accidents, injuries, and illnesses. Workplace violence is an area that can affect all employers and has increasingly been in the forefront of OSHA’s attention. Workplace violence is any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the workplace. It includes a wide range of actions from threats and verbal abuse to physical assaults and even homicide (OSHA, n.d.-d). It can affect and involve employees, clients, customers, and visitors. Among many incidents is one in 2010, which occurred as two dozen employees worked at a Penske truck rental facility near Atlanta. A former employee, dressed in camouflage, came to the facility and fatally shot three workers and injured two others. Subsequently, a survivor of one of the workers killed in the shooting sued Penske, claiming that the company had been making threats to come to the property and hurt employees and that the company therefore had an obligation to protect its employees (Bluestein, 2010). According to OSHA (n.d.-d), homicide is the fourth-leading cause of fatal occupational injuries in the U.S., accounting for over 400 of the workplace fatalities in 2014. Further, nearly two million American workers report having been workplace violence victims annually and many cases go unreported (OSHA, n.d.-d). While there is no magic way to predict where workplace violence will occur, OSHA has identified workers with elevated risk of being victims of violence as those who exchange money with the public, delivery drivers, healthcare professionals, public service workers, customer service agents, law enforcement personnel, and workers who work by themselves or in small groups. Additional risk factors include working in a location where there is the service of alcohol and working late at night or in areas with known high crime rates. To combat workplace violence, OSHA recommends employers establish a zero-tolerance policy covering not only workers, but also anyone exposed to workers in the workplace. Further, employers should assess their workplaces, identify risk factors, and implement methods of reducing risk. Training, too, can reduce the incidence of workplace violence and inform workers what concerns they should report, how to report concerns, and how to respond if an incident occurs. Clearly, establishing and maintaining a safe and healthy workplace is a goal that requires attention on a daily basis, not only from HR staff, but also just as importantly from managers and workers. Government entities such as OSHA protect workers in the workplace and require employers to provide risk reduction and safe work environments through education, training, and government assistance. Within organizations, employers must ensure management is knowledgeable about their responsibilities, as well as resources available to help them achieve safety goals. HR has the responsibility of keeping this critical goal in front of the members of the organization and avoiding complacency because just one incident can have devastating effects.

References Bluestein, G. (2010, April 2). Widow: Penske warned of threats before shooting. Retrieved from

http://archive.boston.com/business/articles/2010/04/02/widow_penske_warned_of_threats_before_sh ooting/

Bureau of Labor Statistics. (2016, October 27). Employer-reported workplace injuries and illnesses – 2015

[Press release]. Retrieved from https://www.bls.gov/news.release/pdf/osh.pdf

MHR 6401, Employment Law 4

UNIT x STUDY GUIDE

Title

Gelb, A. R., Hennessy, J. K., Olie, C. M., & Petrides, T. H. (2016, May 19). OSHA issues new illness and injury recordkeeping rule that casts doubt upon commonplace employer drug testing and safety incentive policies. The National Law Review. Retrieved from http://www.natlawreview.com/article/osha-issues-new-illness-and-injury-recordkeeping-rule-casts- doubt-upon-commonplace

Occupational Safety and Health Administration. (n.d.-a). OSHA laws & regulations. Retrieved from

https://www.osha.gov/law-regs.html Occupational Safety and Health Administration. (n.d.-b). OSHA’s form 300 [Image]. Retrieved from

https://www.osha.gov/recordkeeping/images/clip_image002.jpg Occupational Safety and Health Administration. (n.d.-c). State plans: Frequently asked questions. Retrieved

from https://www.osha.gov/dcsp/osp/index.html Occupational Safety and Health Administration. (n.d.-d). Workplace violence. Retrieved from

https://www.osha.gov/SLTC/workplaceviolence/ Smith, A. (2016, October 19). Steep new penalties under OSH Act raise compliance concerns. Retrieved from

https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/osh-act- penalties.aspx

Suggested Reading The following PowerPoint presentations are supplements to the textbook chapter readings and are provided for further knowledge and review of the unit materials. Chapter 15: Click here to access the PowerPoint presentation. Click here to access a PDF file of the PowerPoint presentation.

Learning Activities (Nongraded) Nongraded Learning Activities are provided to aid students in their course of study. You do not have to submit them. If you have questions, contact your instructor for further guidance and information. At the end of each chapter of your textbook, scenario-driven questions provide legal issues and realistic situations that relate to employment law. Exploring these questions allows you the opportunity to further your understanding of the concepts in each chapter and prepares you for similar situations you may encounter in your workplace.

 Review the Chapter 15 questions in your textbook on pages 584–585.