LEGAL RIGHTS OF WORKERS
TRAINEE OBJECTIVES
After completing Section 9, you will be able to:
THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970
The Occupational Safety and Health Act of 1970 (OSHAct) is the most significant labor-protective statute for health and safety in the workplace. The Occupational Safety and Health Administration (OSHA) encourages employers and workers to work together so that workplace hazards can be reduced. This act was created by OSHA within the Department of Labor.
State Plans
OSHA permits states to assume the enforcement responsibility for occupational safety and health issues by adopting a state plan. At a minimum, state plans must be as stringent as OSHA's protections, rules, and regulations. OSHA also gives states the right to conduct inspections and participate in enforcement activities. A list of state agencies with state plans is contained in OSHA's publication Your Workplace Rights.
States with their own occupational safety and health programs generally have the same responsibilities and rights as the states complying with federal OSHA regulations.
Responsibilities of Individuals
Under OSHA's Construction Standard, certain rules must be followed by management, employers, designated competent persons, and workers to ensure safety on the construction site.
Management
Under OSHA's Construction Standard, a senior member of management must initiate a written job site safety and health program and designate a competent person to maintain the program as required by 29 CFR 1926.1101.
Employers
Under OSHA's Construction Standard, all employers, general contractors, and subcontractors must maintain a written job site safety and health program by designating competent persons to carry out the job site safety and health program.
Employers are in violation of OSHA standards if competent persons aren't designated to implement the job site safety and health program requirements.
The following is a small portion of the Construction Standard excerpted from the OSHAct:
| "Sec. 5(a) Each employer: | |
|
(1) |
Shall furnish to each of his employees: employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; |
| (2) | Shall comply with occupational safety and health standards promulgated under this Act." |
Competent Persons
Simply stated, the competent person under the OSHA standard is defined as a person who is capable of identifying hazards and has authorization to take prompt corrective measures to eliminate them. The competent person has a key role in supervising job safety. Individuals who are designated as a competent person must have managerial authority to prevent and correct hazardous conditions.
What do we mean when we refer to a competent person under the OSHA standard?
On any job site, there may be many experienced workers who are highly skilled in performing their work tasks. In everyday language, these skilled people might be described as competent to do their jobs.
The words competent person under the OSHA construction rules however, have a special meaning. The competent person is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authority to take prompt corrective measures to eliminate them.
In other words, the designated competent person on a construction site must be a person knowledgeable about safety and health matters, and who has authority to correct hazards. Therefore, the competent person designated by management plays a central role in making the job site safe.
The OSHA construction rules specifically require that the competent person conduct frequent and regular inspections of the job site, materials, and equipment, and take action when a safety violation is found. In many cases, the competent person will be the person with overall responsibility for conducting the job site safety and health program.
To be in compliance with the OSHA standards for construction sites, every employer must designate a competent person to be responsible for conducting these important parts of the job site safety and health program. Unless employers designate a competent person to implement the above program, they will not have fulfilled their responsibility to provide a safe and healthy workplace and will be in violation of OSHA standards.
Employees
Under OSHA's Construction Standard, employees are responsible for:
Although OSHA doesn't cite employees for violations of their responsibilities, all employees "shall comply with all occupational safety and health standards and all rules, regulations, and orders issued under the Act" that are applicable.
The following is a small portion of the Construction Standard excerpted from the OSHAct:
"Sec. 5(b) Each employee shall comply with occupational safety and health standards and all rules, regulations and orders issued pursuant to this Act which are applicable to his own actions and conduct."
LEGAL RIGHTS OF WORKERS
Under OSHA's Construction Standard, workers have many legal rights on the job site. Some of these rights are listed below. Workers have the right to:
A brief explanation of these rights follow.
Employee Representative
Workers have the right to have an individual (employee representative) to represent them with various health and safety issues. For example, under Section 8(e) of the OSHAct, a workers' representative (employees' representative) has the right to accompany an OSHA Compliance Officer during the inspection tour.
Generally, the employee representative is chosen by the union (if there is one), or by the workers. Under no circumstances may the employer choose the workers' representative. If workers are represented by more than one union, each union may choose an employee representative. Normally, the employee representative of each union doesn't accompany the inspector for the entire inspection. The union's employee representative only joins the inspection when the OSHA Compliance Officer inspects the area where the union's members work.
Review Standards and Regulations
Workers (or the employees' representative) have the right to review appropriate standards, rules, regulations, and requirements regarding asbestos abatement. The employer should have copies available at the workplace.
Access to Medical and Exposure Records
Workers have the right to access their own medical and exposure records.
Employers must inform employees of the existence, location, and availability of their medical record and exposure record (of toxic substances and harmful physical agents) when workers first enter into employment, and at least annually thereafter.
If an employer plans to stop doing business and no successor employer will be receiving and maintaining the medical and exposure records, the employer must notify affected current workers of their rights of access to records at least three months prior to the cessation of the employer's business.
Request Safety and Health Hazard Information
Workers (or the employees' representative) have the right to request information from the employer on safety and health hazards in the workplace. This enables workers to take the proper safety precautions, and to follow the appropriate procedures when an accident or exposure to toxic substances occurs.
Review Log and Summary of Occupational Injuries (Form 200)
Workers (or the employees' representative) have the right to review OSHA's Log and Summary of Occupational Injuries (Form 200). Employers with ten or more workers must record and maintain records of all work-related injuries and illnesses if they result in:
Request an OSHA Inspection
Workers (or the employees' representative) have the right to request that OSHA conduct an inspection when they suspect hazardous conditions in the workplace or when possible violations of standards exist.
OSHA encourages employers and employees to work together to remove health hazards at the workplace. If a possible hazard exists, the workers should discuss safety and health problems with their employer, other workers, and union representatives (if there is a union) in order to correct the problem. As a last resort, if a hazard isn't corrected, the worker should contact the nearest OSHA office. If the OSHA Director in the office decides that an inspection is necessary, an inspection can be ordered if the worker is willing to submit a formal complaint. An OSHA Compliance Officer conducts either a comprehensive inspection of the entire workplace, or a partial inspection involving certain areas or aspects of the operation. (The OSHA Compliance Officer is also called an inspector, or a Compliance Safety and Health Officer [CSHO].)
Workers (or the employees' representative) have the right to request an informal interview if an inspection isn't done or a citation isn't issued.
After the OSHA Inspection
After the inspection, a "closing conference" takes place. At this conference, the OSHA Compliance Officer confers with the employer and the employee representative to discuss the hazard(s) found. (If a joint conference isn't possible, the OSHA Compliance Officer meets with the employer and worker individually, and upon request provides a written summary.)
During the conference, the employee representative may ask questions, such as:
Confidentiality
OSHA will keep the name of the worker who requested the inspection confidential if requested by the worker.
Help the OSHA Compliance Officer
Workers (or the employees' representative) have the right to help the OSHA Compliance Officer and are encouraged to do so by:
Responding to the Compliance Officer's questions, particularly when an employee representative didn't accompany the Compliance Officer during the inspection tour.
Confidentiality
Employees (or the employees' representative) have the right to talk privately and confidentially to the Compliance Officer even when an authorized Employee Representative accompanied the OSHA Compliance Officer during the inspection tour.
Observe Monitoring and Examine Results
Workers (or the employees' representative) have the right to observe testing and examine the resulting records. If the exposure levels are above the limit set by the standard, the employer must let their workers know how the exposure will be reduced.
If health hazards are present in the workplace, a special OSHA health inspection may be conducted by an Industrial Hygienist (IH). The OSHA Compliance Officer may take samples to measure levels of dust, noise, fume, or other hazardous materials in the workplace. The Compliance Officer gathers information about the employer's efforts to control health hazards, and obtains the results of any tests the employer conducted. OSHA provides the Employee Representative with the measurement results.
Contest the Abatement Period
Workers (or the employees' representative) have the right to contest (or object to) the time OSHA allows for correcting a hazard, even if the employer accepts or agrees with OSHA's abatement period.
In order to contest the abatement period, workers (or the employees' representative) must file a contest by writing to the OSHA Area Director within 15 working days from the date the employer received and posted the citation.
Confidentiality
Workers have the right to have their name withheld from their employer if a written and signed complaint is filed with OSHA.
The Occupational Safety and Health Review Commission reviews the contest and determines the final decision. (The Occupational Safety and Health Review Commission is not a part of or connected with the Department of Labor. This Commission is an independent agency.)
Contact the National Institute for Occupational Safety and Health
Workers (or the employees' representative) have the right to contact NIOSH for free information on the potential dangers of substances in the workplace. In some situations, NIOSH may visit a job site to evaluate possible health hazards. The address for NIOSH is:
| National Institute for Occupational Safety and Health | |
| Centers for Disease Control | |
| 1600 Clifton Road N.E. | |
| Atlanta, Georgia 30333 | |
Confidentiality
NIOSH will keep the name of the individual confidential if requested to do so.
Have Knowledge of Standard Variances
Workers (or the employees' representative) have the right to know if their employer applies for a variance from an OSHA standard. In addition, workers (or the employees' representative) have the right to testify at the hearing, and appeal the final decision. Employers must notify their workers when they have applied for a variance.
Report Imminent Danger
Many people believe only safety hazards which could cause accidents can be considered "imminent dangers." However, it is important to remember that health hazards can also cause imminent danger, such as when a worker encounters life-threatening concentrations of toxic gases, vapors, liquids, or radioactive materials. Exposure to some toxic substances or dangerous fumes, dusts, or gases can cause irreversible physical harm, shortened life, or reduced physical or mental performance. In some cases, OSHA may consider such health hazards to be causing imminent danger, even if the potential harm is not something that can be observed immediately.
The urgency of imminent safety hazards usually is obvious because workers can see the likelihood of direct injury. However, sometimes it's not clear that a health hazard is urgent, because the commonly accepted view is that many health hazards cause illness only after an extended period of time. Yet there are scientific studies that indicate that damage to the body, such as the cancer process, can begin with a single exposure. In the case of an imminent danger concerning a health hazard, the right to refuse hazardous work is also available. This too is subject to the general limitations of the OSHA rule requiring workers to take steps to correct the problem, when possible, through normal channels.
Reports of imminent dangers receive the highest priority for OSHA inspections. If the OSHA Compliance Officer finds imminent danger during the inspection, the employer must:
If the employer refuses to comply, OSHA may appeal to the nearest Federal District Court for an order requiring the employer to remove the danger.
Upon completion of the investigation and before the OSHA Compliance Officer leaves the workplace, all affected workers are informed of the hazard.
If OSHA can't inspect within one working day after receipt of the report, the area Director contacts the employer to request that the hazard be corrected and that all affected workers be removed from harm. Then an inspection is conducted at a later date to ensure that the imminent danger is eliminated.
How Workers Should Respond to Imminent Danger
If a health or safety hazard at the job site puts workers in imminent danger of serious injury, or death, workers should:
If employers don't take appropriate steps to remove the danger, workers should contact one of the following offices:
When workers contact OSHA or the Occupational Safety and Health authority, they should:
Confidentiality
Workers have the right to have their name withheld from their employer if a written and signed complaint is filed with OSHA.
Refuse Dangerous Work
OSHA protects workers who are discharged from worker disciplined for refusing to do work because of imminent safety and health dangers, providing:
OSHA Regulation 29 CFR 1977.12(b)(2) states that a worker can refuse to perform work when the work presents a risk of death or serious injury. However, the condition causing the worker's apprehension of death or injury must be of such a nature that a reasonable person would conclude that there is a real danger of death or serious injury confronting the worker, and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through regular statutory enforcement channels. In addition, the worker must have tried to correct the dangerous condition by contacting the employer.
Workers may also be protected by the National Labor Relations Board (NLRB) if workers refuse dangerous work in cooperation with other workers. OSHA and the NLRB cooperate in refusal-to-work cases involving health or safety hazards. Workers may contact OSHA or NLRB to discuss their case.
The following is a small portion of the National Labor Relations Act (Section 7):
"Nothing in this chapter shall be construed to require an individual employee to render labor or service without his consent, nor shall anything in this chapter be construed to make the quitting of his [or her] labor by an individual employee an illegal act; nor shall any court issue any process to compel the performance by an individual employee of such labor or service, without his [or her] consent; nor shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this chapter."
Report Safety or Health Hazards
Under OSHA's Construction Standard, employers can't legally punish, discriminate, fire, demote, or penalize workers for:
If workers believe that they are being illegally punished (e.g., discharged), they are normally expected to file their complaint with OSHA within 30 days. OSHA can take the appropriate actions, such as going to court to force the employer to restore an worker's job, earnings, and benefits. Workers are not responsible for paying any legal fees.
The following is a small portion of the Construction Standard extracted from the OSHAct:
"Discrimination Against Employees Exercising Rights Under The Act, 29 CFR 1977.12 (1983)
Section 1977.12 Exercise of any right afforded by the Act.
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(a) |
In addition to protecting employees who file complaints, institute proceedings, or testify in proceedings under or related to the Act, section 11(c) also protects employees from discrimination occurring because of the exercise "of any right afforded by this act." Certain rights are explicitly provided in the Act: for example, there is a right to participate as a party in enforcement proceedings (sec. 10). Certain other rights exist by necessary implication. For example, employees may request information from the Occupational Safety and Health Administration; such requests would constitute the exercise of a right afforded by the Act. Likewise, employees interviewed by agents of the Secretary in the course of inspections or investigations could not subsequently be discriminated against because of their cooperation. |
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(b)(1) |
On the other hand, review of the Act and examination of the legislative history discloses that, as a general matter, there is no right afforded by the Act, which would entitle employees to walk off the job because of potential unsafe conditions at the workplace. Hazardous conditions which may be violative of the Act will ordinarily be corrected by the employer, once brought to his attention. If corrections are not accomplished, or if there is dispute about the existence of hazard, the employee will normally have an opportunity to request inspection of the workplace pursuant to section 8(f) of the Act, or to seek the assistance of other public agencies which have responsibility in the field of safety and health. Under such circumstances, therefore, an employer would not ordinarily be in violation of section 11(c) by taking action to discipline an employee for refusing to perform normal job activities because of alleged safety or health hazards. |
| (b)(2) | However, occasions might arise when an employee is confronted with a choice between not performing assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at the workplace. If the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition, he would be protected against subsequent discrimination. The condition causing the employee's apprehension of death or injury must be of such a nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through regular statutory enforcement channels. In addition, in such circumstances, the employee, where possible, must also have sought from his employer, and been unable to obtain, a correction of the dangerous condition." |
Exercise Their OSHA Rights
Section (11)(c) of the OSHA Construction Standard was written to protect workers from discrimination or punishment for exercising their OSHA rights, such as:
Under Section (11)(c), employers can't do any of the following if workers exercise their OSHA rights:
The following is a small portion of the Construction Standard extracted from the OSHAct:
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"(11)(c)(1) |
No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act. |
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(11)(c)(2) |
Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring of or reinstatement of the employee to his former position with back pay. |
| (11)(c)(3) | Within 90 days of the receipt of a complaint filed under the subsection the Secretary shall notify the complainant of his determination under paragraph 2 of this subsection." |
OSHA can only protect workers from punishment if they result from workers exercising their OSHA rights. OSHA can't protect workers if they are disciplined solely for refusing to comply with OSHA regulations or valid health and safety rules established by their employer. If workers are not sure whether their OSHA rights have been violated, the should contact OSHA immediately.
Workers who wish to protest discrimination or punishment not related to their OSHA rights, must contact their union or the appropriate government agency.
File a Discrimination Complaint
Workers (or the employees' representative) have a right to file a Section 11(c) discrimination complaint if:
If workers believe that they have been discriminated against or punished for exercising a legal right, they should:
Compensation
In some instances, workers may be compensated for asbestos-related injuries or illnesses.
Workers' Compensation
Workers' compensation related to lead abatement may present several different problems. If workers suffer a traumatic injury on the job, the workers' compensation system of the state in which the workers are injured handles the claim the same as if the injury happened on a regular construction site. However, if workers suffer illnesses from exposure to substances on the lead abatement job site, they are covered under the MRP provisions of 29 CFR 1926.62.
The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) has compiled a list of the state workers' compensation laws, and the various benefits and limitations from state to state. This can be a good reference to use when there are questions.
Personal Injury Actions (Toxic Tort)
Most of the injuries and illnesses suffered by workers on the job are compensatory only by workers' compensation claims. Employers are generally protected against any other legal action by workers (but not necessarily their families, if they suffer from the exposure of the worker).
Sometimes the actions of employers are so reckless that courts will award damages to workers for injury over and above the workers' compensation benefits. These cases against employers are very difficult to prove. However, in those situations where the employers acted in a way that was calculated to bring harm to their workers, some states have permitted a personal injury recovery.
While employers have the protection of workers' compensation exclusivity, in some cases, the manufacturers of the product that injured workers can be sued for damages if it can be shown that the product was the cause of the illness or injury to the workers, and that the manufacturers didn't properly warn the workers that harm could occur from exposure to the product.
In recent years, the most widely known lawsuits have been brought by workers against the manufacturers of asbestos materials, for asbestos-related diseases. It should be clearly understood that while virtually every workplace illness or injury falls under the state workers' compensation laws, the difficulty of proving causation makes third-party cases much less of a certainty. In the case of the toxic substance exposure, the proof of a causal relationship frequently involves very extensive scientific study.
THE ROLE OF UNIONS AND OSHA
Both unions and OSHA help protect the legal rights of workers.
Unions
Unions are governed largely by the collective bargaining agreement. Many collective bargaining agreements provide detailed health and safety protections within the contract, health and safety committees, and frequently grievance procedures for health and safety concerns. If there are health and safety problems on the job site, workers should first contact the business agent of the union. If there isn't a union, workers should become familiar with their legal rights under OSHA and other statutes, and be prepared to contact the appropriate agencies when a problem arises.
OSHA
OSHA protects workers from punishment or discrimination if any of their legal rights are violated. The director of the closest OSHA area office reviews complaint, and decides whether OSHA should investigate. If OSHA decides an investigation is necessary, an OSHA Compliance Officer or Inspector conducts the investigation.
HEALTH AND SAFETY LIABILITY
The liability of employers, workers, and unions follows:
Employers
In most cases, employers are responsible for the health and safety of workers on the job site. Therefore, employers are principally responsible for injuries or illnesses to workers that resulted from actions they have taken or actions their workers have taken on the job site.
Workers
Workers are generally held immune from liability to third persons because they are considered to be acting on the employer's behalf in connection with activities on the job site. Also, workers generally don't have the economic resources that would make suits against them viable. However, immunity has its limits. Deliberate acts that lead to harm can be a civil and criminal liability against workers doing such acts.
OSHA
Traditionally, unions have not been held liable for actions of employers and workers. Even though unions participate in health and safety committees through the collective bargaining process, employers have the final decision for on-the-job activities.
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ASSIGNMENT SHEET
1. List at least ten legal rights workers have under the Occupational Safety and Health Act of 1970.
2. List seven responsibilities workers have under the Occupational Safety and Health Act of 1970.
3. List seven steps workers should follow if they are punished for exercising any OSHA legal right. |
