Chapter 20
OCCUPATIONAL SAFETY AND HEALTH
INTRODUCTION
The twentieth chapter focuses on occupational safety and health. The chapter begins with a discussion of the
CHAPTER OUTLINE
1. Occupational Safety and Health
1. President Barack Obama pledged in the first months of his presidency to step up federal
2. The funding increase was aimed at enabling OSHA to “vigorously enforce workplace
safety laws and whistleblower protections, and ensure the safety and health of American
workers.”
THE WORKING LAW
Occupational Safety and Health Administration (OSHA) Enforcement
The Occupational Safety and Health Administration’s (OSHA) mission is to promote and to assure
workplace safety and health, and to reduce workplace fatalities, injuries and illnesses. With over four
decades of working to ensure safe and healthy workplaces, OSHA has continually served a vital role in
2. OSHA Inspection Activity
1. In FY 2013 OSHA conducted 39,228 total inspections. This number includes 185
3. OSHA conducted 17,058 unprogrammed inspections, including employee complaints,
injuries/fatalities, and referrals
3. Policy and Processes of the Occupational Safety and Health Act
1. Historical Roots
1. The Occupational Safety and Health Act (OSHA) was enacted by Congress in 1970.
The statute has two broad goals:
1. To assure safe and healthful working conditions for working men and
2. The act requires employers to furnish their employees a workplace that is free from
recognized hazards that cause, or are likely to cause, serious injury or death.
3. The act also requires that employers meet the various health and safety standards set
under the act and keep records of injuries, deaths, accidents, illnesses, and particular
hazards.
1. In Marshall v. Nichols, an example from Texas, the working conditions of
offshore oil platform workers were governed by health and safety regulations
2. Recent Developments
2. The funding increase was aimed at enabling OSHA to “vigorously enforce workplace
3. Administration and Enforcement
1. The Occupational Safety and Health Act created three federal agencies for
administration and enforcement.
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2. The Occupational Safety and Health Administration (OSHA) is the primary agency
created for enforcement of the act, and it has the authority to:
1. promulgate standards;
3. The National Institute of Occupational Safety and Health (NIOSH) is an agency
created to conduct research and promote the application of the research results to
ensure that no worker will suffer diminished health, reduced functional capacity, or
decreased life expectancy as a result of his or her work experience.
4. Standards, Feasibility, and Variances
1. The act provides for the issuance of three kinds of standards: interim standards,
permanent standards, and emergency standards.
1. Interim standards are those that the Secretary of Labor had power to issue for
2. Permanent standards are both newly created standards and revised interim
standards developed by OSHA and NIOSH and based on suggestions made
by interested parties or an advisory committee appointed by the Secretary of
Labor.
1. After OSHA has developed a proposed rule that promulgates,
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3. Emergency standards are issued when the Secretary believes that employees
are exposed to grave dangers from substances or agents determined to be
toxic or physically harmful.
1. Emergency standards take effect immediately upon publication in
2. Appeals of Standards
1. Any person affected adversely by a standard can appeal the standard before
3. Feasibility
1. A standard must be one that adequately assures, to the extent feasible and on
the basis of the best available evidence, that no employee will suffer material
impairment of health or functional capacity, even if the employee has regular
4. Burden of Proof
1. The Secretary must carry the burden of proving both technological and
2. American Textile Mfr.’s Inst. v. Donovan (Supreme Court, 1981) established
CASE 20.1 CHAO V. GUNITE CORP.
442 Fed.3d 550 (7th Cir. 2006)
Background: After issuing a number of citations against Gunite Corporation for violations of occupational
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Issue: Whether the Secretary met her burden of demonstrating the feasibility of the engineering and
administrative controls the agency had mandated.
ANSWERS TO CASE QUESTIONS
1. The courts seek to set a fair balance between safety and commercial viability. Despite contrary claims
2. The best evidence of the company’s knowledge was the fact that it taken steps, albeit not steps
required by the regulations, to abate the hazard. The Commission seemed to want to see some expert
3. The federal courts typically do defer to the agencies responsible for the creation and enforcement of
regulations that operationalize federal laws. This general rule applies not only to OSHA, but also the
NLRB, the EEOC, etc. However, judges don’t feel constrained to defer to agency actions, when the
5. If an employer, or a class of employers, believes that the OSHA standard is
inappropriate to its particular situation, an exemption, or variance, may be sought.
1. A temporary variance may be granted when the employer is unable to comply
4. Employee Rights
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1. Employees under the Occupational Safety and Health Act are protected from retaliation or
discrimination by their employer because they have exercised any rights granted by the act
under Section 11(c)(1).
1. Pursuant to Section 11(c)(1), the Secretary of Labor has adopted a regulation that
CASE 20.2 HERBERT V. ALTIMETER, INC.
230 Or. App. 715, 218 P.3d 542 (2009)
Facts: The employee-plaintiff claimed that she had been fired in retaliation for making safety complaints,
for requesting a reasonable accommodation, for filing a workers’ comp claim, and because her employer
perceived her as disabled. After the plaintiff had presented her case at trial, the judge took the case away
from the jury and granted the defendant’s motion for a directed verdict.
Issue: Was the trial judge right to grant a directed verdict?
Decision: The court held that the trial judge was wrong right across the board. The jury was entitled to
4. Even where the employee has a legitimate reason for refusing the work order, the
2. Other industrialized nations, such as Canada, may have better approaches to the problem, such
as a fairly detailed approach that sets out the reasons a worker may refuse to work and the
5. Inspections, Investigations, and Recordkeeping
1. Inspections
1. OSHA’s occupational safety and health standards are enforced through physical
inspections of workplaces. To prioritize the inspection process, the inspections are
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2. Recordkeeping Requirements
1. Employers with eight or more employees are required to keep records of and
to make periodic reports to OSHA on occupational injuries and illnesses.
1. Occupational injuries must be recorded if they involve or result in:
3. Inspections
1. The compliance officer conducting the inspection may enter without delay
2. The act allows the employer and a representative authorized by the
3. In Marshall v. Barlow’s Inc. (Supreme Court, 1973), the Supreme Court held
that an employer subject to an OSHA inspection may insist upon a search
warrant, and as a result, the compliance officer now must request permission
to enter the workplace or other area that is to be the subject of the search.
ETHICAL DILEMMA
When the OSHA Inspection Finds That the Endangered Workers Are Illegally in the U.S.
USA Today ran a story on June 7, 2006, about post-Hurricane Katrina reconstruction workers, many of
whom were illegal immigrants. The illegal immigrants often worked in hazardous conditions without
protective gear and earned far less than their legal counterparts. Under federal labor law, illegal immigrants
are afforded the same health and safety protections as documented workers. Regardless of their legal status,
laborers can sue most employers under the Fair Labor Standards Act for violation of the minimum wage
law and overtime regulations.
ANSWERS TO QUESTIONS:
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illegal worker. If OSHA reports an illegal worker in cases of reporting a violation, it would deter other
workers from making a complaint. The aim of OSHA is to promulgate and enforce worker safety laws, thus
it would be counterintuitive to report illegal workers that make a complaint. Whether a complaint is made
by a legal worker or an illegal immigrant does not change the answer.
For more resources on this issue, see:
4. Overlapping jurisdictions can complicate the legitimacy of the inspection.
CASE 20.3 NATIONAL MARITIME SAFETY ASS’N V. OCCUPATIONAL SAFETY &
HEALTH
649 F.3d 743 C.A.D.C. (2011), cert. denied, 132 S.Ct. 1960 (April 16, 2012)
Background: This case arose out of OSHA’s effort to limit the total tonnage that could be hoisted aboard
or off of a container ship in a single vertical lift. The agency proposed a limit of two containers with total
weight of 20 tons at one time.
ANSWERS TO CASE QUESTIONS
2. The court found that, while the safety zone practice might protect the workers on the pier, it did nothing
3. The reason your authors remark above about the “bizarre” nature of this claim is that in 2011 one would
6. Citations, Penalties, Abatement, and Appeal
1. Background
1. When an inspection leads to the discovery of a violation of a standard under the act,
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*De minimis violation: A technical violation, but so insignificant as to require no fine or remediation.
2. Citation
1. If a citation is issued, the employer must be notified by certified mail within
a reasonable time, but in no event longer than six months after the
identification of the violation, of any proposed penalty to be assessed.
3. Penalty
1. The penalty and citation may be separately challenged by the employer;
however, if only the penalty is contested, the violation is not subject to
review.
4. The employer has an absolute defense to the citation if it can prove that compliance
with the standard is impossible.
7. Workplace Violence
1. Background
1. The most extreme form of workplace violence – homicide – is the second leading
cause of fatal occupational injury in the United States.
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2. Workplace violence has emerged as an important safety concern in the 21st century
3. Every year, almost 1,000 workers are murdered and about 1.5 million are assaulted
2. Workplace violence can be classified as follows:
1. Violence by emotionally enraged persons; violence by an angry spouse or relative of
an employee; random acts of violence; violence against law enforcement or security;
or terrorism and hate crimes.
5. Supervisors should respond to indicators of potential workplace violence.
6. Steps should be taken to prevent workplace violence, such as develop a written policy, form
a crisis management team, and immediately investigate all incidents.
7. Evacuation plans should be drafted. In order to adequately prepare, it is necessary to know in
advance which employees, if any, will need assistance. The EEOC has released guidelines
concerning the creation of emergency plans that comply with the Americans with Disabilities
Act.
1. The employer can ask about a new hire’s needs in this regard after making an offer
8. OSHA offers guidelines for packages and mail to help employers deal with a potential anthrax
scare.
CASE 20.4 TOMICK V. UNITED PARCEL SERVICE, INC.
511 F. Supp. 2d 235 (D. Conn. 2007)
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Background: The plaintiff’s primary, underlying problem was a bad back. When he came back from
disability leave, he requested a reasonable accommodation. The employer allegedly promised him a helper,
who presumably would do the jumping on and off the truck and handling the packages between the truck
ANSWERS TO CASE QUESTIONS
1. The federal judge doesn’t explain why Tomick chose to bring his suit under the state’s statute. The
2. In deciding a motion to dismiss, the judge must take all of the complaint’s well-stated allegations to
be true. Tomick alleged that he was fired despite being found by a doctor to be drug-free. The
3. It’s difficult to conclude that the company was fair to Tomick, if his version of the story is accurate.
The problem with back-injury claims is that it’s difficult to disprove them, especially if they are based
ANSWERS TO END OF CHAPTER PROBLEMS
QUESTIONS
1. The Act created three agencies. Occupational Safety and Health Administration, which is responsible
2. Under the Act, permanent standards are promulgated through the following procedure:
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(1) Notices of proposed rules must be published in the Federal Register and are subject to public
comment for 30 days.
3. Employees can exercise the right to refuse to work when they believe they face a dangerous condition
4. Under the Act, the workplace inspections are to ensure compliance with the requirements of the Act
and the standards under it. The Barlow‘s requirement that inspectors must get a search warrant to gain
5. The procedures involved in issuing a citation under OSHA are as follows:
1) If a citation is issued, the employer must be notified, within 6 months, of a proposed penalty for
the violation.
5) A party to the proceeding may also petition for review.
6) Final orders of the Commission can be reviewed by the federal courts of appeals.
6. If a citation is issued, the employer must be notified by certified mail within a reasonable time, but in
no event longer than six months after the identification of the violation, of any proposed penalty to be
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assessed. The employer then has 15 working days within which to notify OSHA that it intends to
contest the citation or the proposed penalty. If the employer does not contest, the citation becomes final
and is not subject to appeal or review. If the employer fails to correct a cited violation after it has
CASE PROBLEMS
7. While an employee who protests health and safety hazards is protected by the OSH Act from
termination, this is not a carte blanche to engage in insubordinate conduct, which may constitute an
8. An estoppel argument was available to the employer, since it claimed to have relied upon an agency
official’s advice; however, erred in contacting the incorrect agency within the Labor Department. Thus,
9. Once again the Fifth Amendment’s due process clause is implicated; the employer enjoys a
Constitutional right to defend itself. However, the FOIA excludes from discoverability information
10. The cemetery company could have engaged in long and expensive litigation of the OSHA citation.
Instead it resorted to an eminently practical solution: the general manager simply ordered the back–
11. Sovereign immunity is a concept that derives from ancient times when “the king could do no wrong.“
In modern times many states have voluntarily abrogated portions of their sovereign immunity. And in
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12. This is a long-lived and highly publicized case. The ex–professor was under federal indictment for
terrorism-related charges. However, the university was not obligated to wait until he is found beyond
13. As suggested above, the university was not obligated to wait until the professor was found guilty
14. While OSHA is responsible for workplace safety and the National Labor Relations Board is responsible
15. As this is a workplace safety issue, an OSHA complaint is a possibility. But, since OSHA does not
provide a private right of action, except for retaliation, no preemption issue is implicated here.
HYPOTHETICAL SCENARIOS
17. This is clearly a matter of opinion. How the student responds suggest how they will respond when
faced with a business practice that violates OSHA standards. OSHA possesses authority to
promulgate and enforce health and safety regulations. However, criminal prosecutions for OSHA
18. This is clearly a matter of opinion. How the student responds suggest how they will react when a female
employee decides to place herself at risk, despite warning. The female workers are correct that they
19. No. As per the OSHA recommendation, there was not any additional duty upon the employer to
implement new standards or regulations.
20. The court should rule in favor the airline manufacturing company. The company followed proper rules
21. Any employee who believes that a violation of a safety or health standard exists that threatens physical
harm, or believes that an imminent danger exists, may request an inspection. According to Marshall v.
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