Workplace Health and Safety

OSHA requirements for employers

In general OSHA standards require employers to identify workplace hazards and take steps to mitigate them. OSHA regulations also prohibit employers from punishing employees who, under very narrowly defined circumstances, refuse to perform unsafe work.

Examples of OSHA health and safety programs in the workplace include, but are not limited to:

• Prominently posting in the workplace the OSHA poster that informs employees of their rights and responsibilities under the OSH Act
• Examining workplace conditions to ensure they conform to applicable safety and health standards
• Eliminating or protecting against identified workplace hazards
• Making sure employees have and use safe, properly maintained tools and equipment, including any required personal protective equipment

In addition, many states have their own requirements for injury and illness prevention programs, so attorneys also should review state and local policies that apply to their work.

Employee training

Attorneys developing or reviewing a workplace health and safety policy should know that many OSHA standards require employers to provide workplace safety training or instruction to their employees to ensure work is carried out in a safe and healthful manner. Employers must provide training in languages and vocabulary that all employees understand. For example, employers that have employees who can’t read must ensure their health and safety training doesn’t rely on written materials.

Construction industry requirements

OSHA covers the construction industry separately from general industry. Under OSHA’s construction industry standard (29 CFR Pt. 1926, Subpart C), employers are required to meet several requirements related to creating a safe work environment. These requirements include:

• Ensuring that laborers aren’t required to work in surroundings or under working conditions that are unsanitary, hazardous, or dangerous to health or safety
• Initiating and maintaining an accident prevention program that includes regular worksite inspections by competent persons
• Ensuring that all machines, tools, materials, and equipment used comply with all applicable requirements of the construction standard and may be used or operated only by trained personnel

Commercial vehicle driver requirements

Notably, employers often must comply with multiple federal agencies’ safety and health regulations if they have workers who drive motor vehicles as part of their job duties. The U.S. Department of Transportation Federal Motor Carrier Safety Administration (FMCSA) regulates certain commercial vehicle drivers and establishes safety and health requirements for drivers, such as drivers’ hours of work and drug and alcohol use. For example, drivers of commercial motor vehicles who are subject to FMCSA regulations are prohibited from using electronic devices for texting while driving, except when necessary to communicate with law enforcement officials or other emergency services. So, those who employ commercial motor vehicle drivers can’t require or allow these employees to engage in texting while driving. Employers that violate the texting prohibition can be fined up to $11,000, while employees who violate the prohibition can be disqualified from driving commercial motor vehicles and subject to other penalties.

OSHA’s 7 principles for workplace safety

Although OSHA doesn’t require employers to have written safety programs, it encourages employers to do so. OSHA has issued guidelines to help employers develop voluntary workplace health and safety programs. The guidelines are broadly written and can apply to general industry, shipyards, marine terminals, and longshoring activities, regardless of the size, nature, or complexity of the operations. But guidelines don’t cover the construction industry, which is addressed separately.

The most recent of these voluntary guidelines is OSHA’s “Recommended Practices for Safety and Health Programs,” released in 2016. These practices address seven interrelated principles OSHA says are best viewed as part of an integrated system. Actions taken under one core element can, and likely will, affect actions in other areas. Therefore, an effective voluntary safety and health program generally will follow these seven principles:

1. Management leadership
2. Worker participation
3. Hazard identification and assessment
4. Hazard prevention and control
5. Education and training
6. Program evaluation and improvement
7. Communication and coordination for host employers, contractors, and staffing agencies

Each of the seven principles is accompanied by a series of recommended action items, providing easy steps employers can take to develop their workplace health and safety programs.

Management leadership

Management should communicate commitment to a safety and health program.

• Management should define program goals and expectations.
• Management should allocate resources toward goals.
• Management should expect performance.

Worker participation

Workers should be encouraged to participate in safety programs in the following ways:

• Workers should be encouraged to report safety and health concerns.
• Management should encourage workers to participate in the program.
• Workers should be involved in all aspects of the program.
• Workers should be given access to safety and health information.
• Management should remove barriers to participation.

Hazard identification and assessment

A critical element to any safety and health program is identifying hazards before they endanger workers. This means:

• Collecting information about workplace hazards
• Inspecting the workplace
• Conducting incident investigations
• Identifying hazards associated with emergency and nonroutine situations
• Characterizing the nature of identified hazards, determining controls to be implemented, and prioritizing the hazards for control

Hazard prevention and control

This principle aims to help employers prevent and control hazards identified in the previous section. Action steps include:

• Identifying control options
• Selecting controls
• Developing and updating a hazard control plan
• Selecting controls to protect workers during nonroutine operations and emergencies
• Implementing selected controls in the workplace
• Following up to confirm that controls are effective

Education and training

The program should aim both to inform workers about how to work safely and to provide workers and managers with a great understanding of the safety and health program itself, so they can contribute to its development and implementation. Steps include:

• Providing program awareness training
• Training workers in their specific roles and responsibilities in the safety and health program
• Training workers on hazard identification and controls

Program evaluation and improvement

After a program is established, it should be evaluated to make sure it is being implemented as intended. After that, it should be evaluated at least monthly. Employers should:

• Monitor performance and progress
• Verify the program is implemented and is operating
• Correct program deficiencies

Communication and coordination for host employers, contractors, and staffing agencies

Given the fact that an increasing number of workers are assigned by staffing agencies or are otherwise working under multiple employers, it’s important for employers and contractors to ensure that all workers are protected. Steps they can take include:

• Management leadership
• Worker participation
• Hazard identification and control
• Education and training
• Program evaluation and improvement

OSHA compliance

OSHA’s recommended practices stress the importance of worker participation. To maintain compliance with OSHA-mandated laws and policies, employers can consider the following actions:

• Ensure written safety programs are current, accurate, compliant, and implemented.
• Develop a formal program for reporting and resolving employee safety concerns.
• Establish a Safety Committee that includes employee representatives and management.
• Evaluate safety programs as written and implemented.
• Audit the workplace for potential hazards.
• Review and discuss workplace incidents and near misses.

OSHA inspections

OSHA has the authority to conduct inspections of workplaces and bring enforcement actions against employers found to be in violation of the OSH Act or health and safety standards. The agency can issue citations and penalties if a company fails to comply with the law. The current maximum penalties that may be assessed after Jan. 15, 2023, are $15,625 for serious and other-than-serious violations, failure to abate, or posting violations, and $156,259 per “willful or repeated” violation.

Because OSHA conducts virtually all its litigation discovery during on-site inspections, and the OSH Act gives OSHA broad investigative authority during inspections, it is critical for employers to prepare, assert their rights, and manage the flow of information during inspections.

Appealing an OSHA standard

Anyone adversely affected by an OSHA standard can contest the standard’s validity in a federal appeals court within 60 days after the standard was issued. The court can prevent OSHA’s enforcement of a standard until the court rules on the standard’s validity; however, contesting a standard doesn’t automatically lead to a temporary halt in enforcement.

In addition, because OSHA notes that interpretations and enforcement policy “may change over time,” employment attorneys may want to review OSHA’s latest enforcement policies when developing a workplace health and safety policy and working toward compliance.

Should employers implement health screening policies?

As more employees return to the office, employers and the attorneys advising them will continue to face tough questions around vaccine policies and implementation.

The Equal Employment Opportunity Commission (EEOC) has acknowledged that the Covid-19 pandemic presents a direct threat to employees and generally allows employers to conduct Covid-19 testing, temperature checks, and health screenings without violating the Americans with Disabilities Act.

That said, employers that choose to implement health screenings should be aware that the EEOC’s guidance does not set aside other employment laws. Employers must ensure that they remain in compliance with Title VII of the Civil Rights Act, the Fair Labor Standards Act, the OSH Act, and all applicable federal, state, and local laws.

Employers providing on-site testing for infectious diseases must also consider confidentiality, wage and hour, and safety issues associated with screening, and determine how to address employees who refuse to undergo testing.