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OSHA Employee Rights Guide - Standards and Inspections

Employee Rights - OSHA Standards, Workplace Hazards and Inspections

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OSHA 3021
OSHA: Employee Workplace Rights

Before OSHA issues, amends or deletes regulations, the agency publishes them in the Federal Register so that interested persons or groups may comment.

The employer has a legal obligation to inform employees of OSHA safety and health standards that apply to their workplace. Upon request, the employer must make available copies of those standards and the OSHA law itself. If more information is needed about workplace hazards than the employer can supply, it can be obtained from the nearest OSHA area office.

Under the OSH Act, employers have a general duty to provide work and a workplace free from recognized hazards. Citations may be issued by OSHA when violations of standards are found and for violations of the general duty clause, even if no OSHA standard applies to the particular hazard.

The employer also must display in a prominent place the official OSHA poster that describes rights and responsibilities under the OSH Act.

Right to Know

Employers must establish a written, comprehensive hazard communication program that includes provisions for container labeling, material safety data sheets, and an employee training program. The program must include a list of the hazardous chemicals in each work area, the means the employer uses to inform employees of the hazards of non-routine tasks (for example, the cleaning of reactor vessels), hazards associated with chemicals in unlabeled pipes, and the way the employer will inform other employers of the hazards to which their employees may be exposed.

Access to Exposure and Medical Records

Employers must inform employees of the existence, location, and availability of their medical and exposure records when employees first begin employment and at least annually thereafter. Employers also must provide these records to employees or their designated representatives, upon request. Whenever an employer plans to stop doing business and there is no successor employer to receive and maintain these records, the employer must notify employees of their right of access to records at least 3 months before the employer ceases to do business. OSHA standards require the employer to measure exposure to harmful substances, the employee (or representative) has the right to observe the testing and to examine the records of the results. If the exposure levels are above the limit set by the standard, the employer must tell employees what will be done to reduce the exposure.

Cooperative Efforts to Reduce Hazards

OSHA encourages employers and employees to work together to reduce hazards. Employees should discuss safety and health problems with the employer, other workers, and union representatives (if there is a union). Information on OSHA requirements can be obtained from the OSHA area office. If there is a state occupational safety and health program, similar information can be obtained from the state. OSHA provides special recognition through its Voluntary Protection Programs (VPP's) to worksites where employers and employees work together to achieve safety and health excellence (See page 16).



OSHA Inspections

If a hazard is not being corrected, an employee should contact the OSHA area office (or state program office) having jurisdiction. If the employee submits a written complaint and the OSHA area or state office determines that there are reasonable grounds for believing that a violation or danger exists, the office conducts an inspection.

Employee Representative

Under Section 8(e) of the Act, the workers' representative has a right to accompany an OSHA compliance officer (also referred to as a compliance safety and health officer, CSHO, or inspector) during an inspection. The representative must be chosen by the union (if there is one) or by the employees. Under no circumstances may the employer choose the workers' representative.

If employees are represented by more than one union, each union may choose a representative. Normally, the representative of each union will not accompany the inspector for the entire inspection, but will join the inspection only when it reaches the area where those union members work.

An OSHA inspector may conduct a comprehensive inspection of the entire workplace or a partial inspection limited to certain areas or aspects of the operation.

Helping the Compliance Officer

Workers have a right to talk privately to the compliance officer on a confidential basis whether or not a workers' representative has been chosen.

Workers are encouraged to point out hazards, describe accidents or illnesses that resulted from those hazards, describe past worker complaints about hazards, and inform the inspector if working conditions are not normal during the inspection.

Observing Monitoring

If health hazards are present in the workplace, a special OSHA health inspection maybe conducted by an industrial hygienist. This OSHA inspector may take samples to measure levels of dust, noise, fumes, or other hazardous materials.

OSHA will inform the employee representative as to whether the employer is in compliance. The inspector also will gather detailed information about the employer's efforts to control health hazards, including results of tests the employer may have conducted.

Reviewing OSHA Form 200

If the employer has more than 10 employees, the employer must maintain records of all work-related injuries and illnesses, and the employees or their representative have the right to review those records. Some industries with very low injury rates (e.g., insurance and real estate offices) are exempt from recordkeeping.

Work-related minor injuries must be recorded if they resulted in restriction of work or motion, loss of consciousness, transfer to another job, termination of employment, or medical treatment (other than first-aid). All recognized work-related illnesses and non-minor injuries also must be recorded.



After an Inspection

At the end of the inspection, the OSHA inspector will meet with the employer and the employee representatives in a closing conference to discuss the abatement of any hazards that may have been found.

If it is not practical to hold a joint conference, separate conferences will be held, and OSHA will provide written summaries, on request.

During the closing conference, the employee representative may describe, if not reported already, what hazards exist, what should be done to correct them, and how long it should take. Other facts about the history of health and safety conditions at the workplace may also be provided.

Challenging Abatement Period

Whether or not the employer accepts OSHA's actions, the employee (or representative) has the right to contest the time OSHA allows for correcting a hazard.

This contest must be filed in writing with the OSHA area director within 15 working days after the citation is issued. The contest will be decided by the Occupational Safety and Health Review Commission. The Review Commission is an independent agency and is not part of the Department of Labor.

Variances

Some employers may not be able to comply fully with a new safety and health standard in the time provided due to shortages of personnel, materials or equipment. In situations like these, employers may apply to OSHA for a temporary variance from the standard. In other cases, employers may be using methods or equipment that differ from those prescribed by OSHA, but which the employer believes are equal to or better than OSHA's requirements, and would qualify for consideration as a permanent variance. Applications for a permanent variance must basically contain the same information as those for temporary variances.

The employer must certify that workers have been informed of the variance application, that a copy has been given to the employee's representative, and that a summary of the application has been posted wherever notices are normally posted in the workplace. Employees also must be informed that they have the right to request a hearing on the application.

Employees, employers, and other interested groups are encouraged to participate in the variance process. Notices of variance application are published in the Federal Register inviting all interested parties to comment on the action.

Confidentiality

OSHA will not tell the employer who requested the inspection unless the complainant indicates that he or she has no objection.

Review If No Inspection Is Made

The OSHA area director evaluates the complaint from the employee or representative and decides whether it is valid. If the area director decides not to inspect the workplace, he or she will send a certified letter to the complainant explaining the decision and the reasons for it. Complainants must be informed that they have the right to request further clarification of the decision from the area director; if still dissatisfied, they can appeal to the OSHA regional administrator for an informal review. Similarly, a decision by an area director not to issue a citation after an inspection is subject to further clarification from the area director and to an informal review by the regional administrator.

Discrimination for Using Rights

Employees have a right to seek safety and health on the job without fear of punishment. That right is spelled out in Section 11(c) of the Act. The law says the employer "shall not" punish or discriminate against employees for exercising such rights as complaining to the employer, union, OSHA, or any other government agency about job safety and health hazards; or for participating in OSHA inspections, conferences, hearings, or other OSHA-related activities.

Although there is nothing in the OSHA law that specifically gives an employee the right to refuse to perform an unsafe or unhealthful job assignment, OSHA's regulations, which have been upheld by the U.S. Supreme Court, provide that an employee may refuse to work when faced with an imminent danger of death or serious injury. The conditions necessary to justify a work refusal are very stringent, however, and a work refusal should be an action taken only as a last resort. If time permits, the unhealthful or unsafe condition must be reported to OSHA or other appropriate regulatory agency.

A state that is administering its own occupational safety and health enforcement program pursuant to Section 18 of the Act must have provisions as effective as those of Section 11(c) to protect employees from discharge or discrimination. OSHA, however, retains its Section 11(c) authority in all states regardless of the existence of an OSHA-approved state occupational safety and health program.

Workers believing they have been punished for exercising safety and health rights must contact the nearest OSHA office within 30 days of the time they learn of the alleged discrimination. A representative of the employee's choosing can file the 11(c) complaint for the worker. Following a complaint, OSHA will contact the complainant and conduct an in depth interview to determine whether an investigation is necessary.

If evidence supports the conclusion that the employee has been punished for exercising safety and health rights, OSHA will ask the employer to restore that worker's job, earnings, and benefits. If the employer declines to enter into a voluntary settlement, OSHA may take the employer to court. In such cases, an attorney of the Department of Labor will conduct litigation on behalf of the employee to obtain this relief.

Section 31105 of the Surface Transportation Assistance Act was enacted on January 6, 1983, and provides protection from reprisal by employers for truckers and certain other employees in the trucking industry involved in activity related to commercial motor vehicle safety and health. Secretary of Labor's Order No. 9-83 (48 Federal Register 35736, August 5, 1983) delegated to the Assistant Secretary of OSHA the authority to investigate and to issue findings and preliminary orders under Section 31105.

Employees who believe they have been discriminated against for exercising their rights under Section 31105 may file a complaint with OSHA within 180 days of the discrimination. OSHA will then investigate the complaint, and within 60 days after it was filed, issue findings as to whether there is a reason to believe Section 31105 has been violated.

If OSHA finds that a complaint has merit, the agency also will issue an order requiring, where appropriate, abatement of the violation, reinstatement with back pay and related compensation, payment of compensatory damages, and the payment of the employee's expenses in bringing the complaint. Either the employee or employer may object to the findings. If no objection is filed within 30 days, the finding and order are final. If a timely filed objection is made, however, the objecting party is entitled to a hearing on the objection before an Administrative Law Judge of the Department of Labor.

Within 120 days of the hearing, the Secretary will issue a final order. A party aggrieved by the final order may seek judicial review in a court of appeals within 60 days of the final order.

The following activities of truckers and certain employees involved in commercial motor vehicle operation are protected under Section 31105:

• Filing of safety or health complaints with OSHA or other regulatory agency relating to a violation of a commercial motor vehicle safety rule, regulation, standard, or order.

• Instituting or causing to be instituted any proceedings relating to a violation of a commercial motor vehicle safety rule, regulation, standard or order.

• Testifying in any such proceedings relating to the above items.

• Refusing to operate a vehicle when such operation constitutes a violation of any Federal rules, regulations, standards or orders applicable to commercial motor vehicle safety or health; or because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of the equipment.

• Complaining directly to management, co-workers, or others about job safety or health conditions relating to commercial motor vehicle operation.

Complaints under Section 31105 are filed in the same manner as complaints under 11(c). The filing period for Section 31105 is 180 days from the alleged discrimination, rather than 30 days as under Section 11(c).

In addition, Section 211 of the Asbestos Hazard Emergency Response Act provides employee protection from discrimination by school officials in retaliation for complaints about asbestos hazards in primary and secondary schools.

The protection and procedures are similar to those used under Section 11(c) of the OSH Act. Section 211 complaints must be filed within 90 days of the alleged discrimination.

Finally, Section 7 of the International Safe Container Act also provides employee protection from discrimination in retaliation for safety or health complaints about intermodal cargo containers designed to be transported interchangeably by sea and land carriers. The protection and procedures are similar to those used under Section 11(c) of the OSH Act. Section 7 complaints must be filed within 60 days of the alleged discrimination.

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