he Occupational Safety and Health Act was passed by the United States Congress in 1970 — almost five decades ago! However, awash in Federal regulatory activities of so many kinds, many emerging businesses remain vague and uncertain about the ways in which OSHA may affect them. Let's take a brief overview of this important body of Federal regulations and administrative law. Who is affected? Compliance with OSHA standards is mandated for all employers in all industries "engaged in a business affecting commerce who has employees," regardless of size, except:
- Self-employed persons;
- Farms on which only immediate members of
the farm employer's family are employed; and
- Working conditions regulated by other federal
agencies under other federal statutes.
The Commerce Clause in the Constitution of the United States — Article 1, Section 8, Clause 3 — has been interpreted so broadly by the Courts that even the possession of a firearm during an attempted robbery of a small local tavern, Lisa's Just In Time, in Nashville, Tennessee, has been prosecuted as a Federal crime because of the incident's possible effect on the free flow of interstate commerce [United States v Brown, 959 F 2d 63 (CA6, 1992)]. Therefore, even a tiny business with a handful of employees is subject to compliance with the standards promulgated by OSHA.
What are the OSHA Standards? The Occupational Safety and Health Administration has established and is continually upgrading legally enforceable standards falling into four major industry categories — General Industry, Maritime, Construction, and Agriculture. All current regulations and standards are published in the Code of Federal Regulations (CFR) under Title 29, Sections 1900-1999; of course, the CFR can be ordered from the US Government Printing Office (GPO). It behooves the manager of any business to have and be familiar with the pertinent sections of the CFR that are applicable to his/her industry.
What about record keeping and reporting? All employers with 11 or more employees are required to maintain specified records of all occupational injuries and illnesses as they occur [OSHA No. 200, Log and Summary of Occupational Injuries and Illnesses]. However, this record keeping is not required for employers in retail trade, finance, insurance, real estate, and service industries. Further, employers must complete a detail report for each occupational death, injury or illness [OSHA No. 101, Supplementary Record of Injuries and Illnesses]. In addition to filing these reports with OSHA, copies are to be posted in a visible spot in the workplace where they are easily seen by all of the employees. In fact, employees are to be fully involved in and apprised of all OSHA activities.
What about inspections? To enforce its standards, OSHA is authorized under the Act to conduct workplace inspections. The Supreme Court has ruled that warrantless inspections may not be conducted without an employer's consent [Marshall v Barlow's, Inc., 436 US 307, 98 S Ct 1816, 56 L Ed 2d 305 (1978)]. However, employer resistance will be met with the issuance of a judicially-authorized search warrant based upon administrative probable cause or upon evidence of a violation. The system of inspection priorities is, first, imminent danger; second, catastrophes and fatal accidents; third, employee complaints; fourth, programmed high-hazard inspections; and fifth, followup inspections to ascertain whether previously cited violations have been corrected. An emerging company in a low-hazard industry will seldom see an OSHA compliance officer. However, larger companies in a high-hazard industry or with a pattern of violations can expect frequent visits by a compliance officer.
Obviously, if an emerging company has reason to believe it may receive a citation and penalties, it should proactively retain competent legal and engineering counsel. Citations and penalties can be serious and substantial; grievous violations may even be the basis of criminal charges. Failure to correct or abate a potential or an active safety or health violation can be costly and most demoralizing — for the emerging company, it can be devastating.
For the manager of the emerging business, compliance with OSHA standards is rarely complex, difficult, or even costly. Most problems arise because of inattentiveness. The best policy is to be fully informed, quite cautious, and generally cooperative. Its cheaper than any other OSHA alternatives!
Your comments and suggestions for these pages are most welcomed!
Brookline, MA 02446-2822 USA
Revised: Augusr 19, 2019 TAF
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