BizNet Reports On Work Place Violence The Law! (What the government says it means)

From the Department Of Labor

http://www.dol.gov/dol/welcome.htm

We would hope that all employers would take work place violence seriously because they care about the quality of the working environment that they provide to their employee's, but...

Look we know there is no Easter Bunny... In other words some of you employers out there just don't care about your employees or the work conditions you supply.  So lets talk about the fact that you have no choice.  If you don't want to get hit for big bucks from the Government, you had better take care of bad working conditions.

Work place violence is covered under the Occupational Safety and Health Act of 1970.  All Employers have a general duty to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm (This would include work place violence). Failure to implement the guidelines under this Act can result in an employer being cited and fined by the Occupational Safety and Health Administration (OSHA) for violating the General Duty Clause.

So lets look at what the government says the Law means:

From the:

The Occupational Safety and Health Act of 1970 (OSH Act)
(29 U.S.C. §651 et seq.; 29 CFR 1900 to end)

Who is Covered

In general, coverage of the Act extends to all employers and their employees in the 50 states, the District of Columbia, Puerto Rico, and all other territories under federal government jurisdiction. Coverage is provided either directly by the Federal Occupational Safety and Health Administration (OSHA) or through an OSHA-approved state occupational safety and health program.

As defined by the Act, an employer is any "person engaged in a business affecting commerce who has employees, but does not include the United States or any state or political subdivision of a State." Therefore, the Act applies to employers and employees in such varied fields as manufacturing, construction, longshoring, agriculture, law and medicine, charity and disaster relief, organized labor and private education. Such coverage includes religious groups to the extent that they employ workers for secular purposes.

The following are not covered by the Act:

• Self-employed persons;
• Farms at which only immediate members of the farmer's family are employed;
• Working conditions regulated by other federal agencies under other federal statutes. This category includes most employment in mining, nuclear energy and nuclear weapons manufacture, and many segments of the transportation industries;
• Employees of State and local governments (unless they are in one of the States with OSHA-approved safety and health programs).

Other federal agencies are sometimes authorized to regulate safety and health working conditions in a particular industry; if they do not do so in specific areas, then OSHA requirements apply.

Basic Provisions/Requirements

The Act assigns to OSHA two principal functions: setting standards and conducting workplace inspections to ensure that employers are complying with the standards and providing a safe and healthful workplace. OSHA standards may require that employers adopt certain practices, means, methods or processes reasonably necessary to protect workers on the job. It is the responsibility of employers to become familiar with standards applicable to their establishments, to eliminate hazardous conditions to the extent possible, and to comply with the standards. Compliance may include ensuring that employees have and use personal protective equipment when required for safety or health. Employees must comply with all rules and regulations that are applicable to their own actions and conduct.

Even in areas where OSHA has not promulgated a standard addressing a specific hazard, employers are responsible for complying with the OSH Act's "general duty" clause. The general duty clause of the Act [Section 5(a)(1)] states that each employer "shall furnish . . . a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."

States with OSHA-approved job safety and health programs must set standards that are at least as effective as the equivalent federal standard. Most of the state-plan states adopt standards identical to the federal ones (two states, New York and Connecticut, have plans which cover only public sector employees).

Federal OSHA Standards

Standards fall into four major categories: general industry (29 CFR 1910), construction (29 CFR 1926), maritime - shipyards, marine terminals, longshoring (29 CFR 1915-19), and agriculture (29 CFR 1928).

Each of these four categories of standards imposes requirements that are targeted to that industry, although in some cases they are identical across industries. Among the standards that impose similar requirements on all industry sectors are those for access to medical and exposure records, personal protective equipment, and hazard communication.

• Access to Medical and Exposure Records: This standard requires that employers grant employees access to any of their medical records maintained by the employer and to any records the employer maintains on the employees' exposure to toxic substances.
• Personal Protective Equipment: This standard, included separately in the standards for each industry segment (except agriculture), requires that employers provide employees, at no cost to employees, with personal protective equipment designed to protect them against certain hazards. This can range from protective helmets to prevent head injuries in construction and cargo handling work, to eye protection, hearing protection, hard-toed shoes, special goggles (for welders, for example) and gauntlets for iron workers.
• Hazard Communication: This standard requires that manufacturers and importers of hazardous materials conduct a hazard evaluation of the products they manufacture or import. If the product is found to be hazardous under the terms of the standard, containers of the material must be appropriately labeled and the first shipment of the material to a new customer must be accompanied by a material safety data sheet (MSDS). Employers, using the MSDSs they receive, must train their employees to recognize and avoid the hazards the materials present.

In general, all employers (except those in the construction industry) should be aware that any hazard not covered by an industry-specific standard may be covered by a general industry standard; in addition, all employers must keep their workplaces free of recognized hazards that may cause death or serious physical harm to employees, even if OSHA does not have a specific standard or requirement addressing the hazard. This coverage becomes important in the enforcement aspects of OSHA's work.

Other types of requirements are imposed by regulation rather than by a standard. OSHA regulations cover such items as recordkeeping, reporting and posting.

• Recordkeeping: Every employer covered by OSHA who has more than 10 employees, except for certain low-hazard industries such as retail, finance, insurance, real estate, and some service industries, must maintain OSHA-specified records of job-related injuries and illnesses. There are two such records, the OSHA Form 200 and the OSHA Form 101.

The OSHA Form 200 is an injury/illness log, with a separate line entry for each recordable injury or illness (essentially those work-related deaths, injuries and illnesses other than minor injuries that require only first aid treatment and that do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job). A summary section of the OSHA Form 200, which includes the total of the previous year's injury and illness experience, must be posted in the workplace for the entire month of February each year.

The OSHA Form 101 is an individual incident report that provides added detail about each individual recordable injury or illness. A suitable insurance or workers’ compensation form that provides the same details may be substituted for the OSHA Form 101.

Unless an employer has been selected in a particular year to be part of a national survey of workplace injuries and illnesses conducted by the Department of Labor's Bureau of Labor Statistics (BLS) , employers with ten or fewer employees or employers in traditionally low-hazard industries are exempt from maintaining these records; all employers selected for the BLS survey must maintain the records. Employers so selected will be notified before the end of the year to begin keeping records during the coming year, and technical assistance on completing these forms is available from the state offices which select these employers for the survey.

Industries designated as traditionally low hazard include: automobile dealers; apparel and accessory stores; furniture and home furnishing stores; eating and drinking places; finance, insurance, and real estate industries; and service industries, such as personal and business services, legal, educational, social and cultural services and membership organizations.

• Reporting: In addition to the reporting requirements described above, each employer, regardless of number of employees or industry category, must report to the nearest OSHA office within 8 hours of any accident that results in one or more fatalities or hospitalization of three or more employees. Such accidents are often investigated by OSHA to determine what caused the accident and whether violations of standards contributed to the event.

Employee Rights

Employees are granted several important rights by the Act. Among them are the right to: complain to OSHA about safety and health conditions in their workplace and have their identity kept confidential from the employer, contest the time period OSHA allows for correcting standards violations, and participate in OSHA workplace inspections.

Anti-Discrimination Provisions

Private sector employees who exercise their rights under OSHA can be protected against employer reprisal, as described in Section 11(c) of the OSH Act. Employees must notify OSHA within 30 days of the time they learned of the alleged discriminatory action. This notification is followed by an OSHA investigation. If OSHA agrees that discrimination has occurred, the employer will be asked to restore any lost benefits to the affected employee. If necessary, OSHA can take the employer to court. In such cases, the worker pays no legal fees.

Assistance Available

Copies of Standards

The Federal Register is one of the best sources of information on standards, since all OSHA standards are published there when adopted, as are all amendments, corrections, insertions or deletions. The Federal Register, published five days a week, is available in many public libraries. Annual subscriptions are available from the Superintendent of Documents, U.S. Government Printing Office (GPO), Washington, D.C. 20402. OSHA also provides copies of its Federal Register notices on its website.

Each year the Office of the Federal Register publishes all current regulations and standards in the Code of Federal Regulations (CFR), available at many public libraries and from GPO. OSHA's regulations and standards are collected in several volumes in Title 29 CFR, Parts 1900-1999. OSHA’s regulations and standards are also available through the Internet on OSHA’s page on standards. OSHA also has a compliance assistance section on its website. For a reasonable price, GPO offers a data text-retrieval package in CD- ROM format that contains all OSHA standards, compliance directives and standards interpretations.

In addition, OSHA has a number of Expert Advisors to help you understand and apply the OSHA regulations.

Since states with OSHA-approved job safety and health programs adopt and enforce their own standards under state law, copies of these standards can be obtained from the individual states.

Training and Education

OSHA's field offices (more than 70) are full-service centers offering a variety of informational services such as publications, technical advice, audio-visual aids on workplace hazards, and lecturers for speaking engagements.

The OSHA Training Institute in Des Plaines, Illinois, provides basic and advanced training and education in safety and health for federal and state compliance safety and health officers; state consultants; other federal agency personnel; and private sector employers, employees and their representatives. Institute courses cover topics such as electrical hazards, machine guarding, ventilation and ergonomics. The Institute facility includes classrooms, laboratories, a library and an audio-visual unit. The laboratories contain various demonstrations and equipment, such as power presses, woodworking and welding shops, a complete industrial ventilation unit, and a noise demonstration laboratory. Sixty-one courses are available for students from the private sector dealing with subjects such as safety and health in the construction industry and methods of voluntary compliance with OSHA standards.

OSHA also provides funds to nonprofit organizations to conduct workplace training and education. OSHA annually identifies areas of unmet needs for safety and health education in the workplace and invites grant applications to address these needs. The Training Institute is OSHA's point of contact for learning about the many valuable training products and materials developed under such grants.

Organizations awarded grants use the funds to develop training and educational programs, reach out to workers and employers for whom their program is appropriate, and provide these programs to employers and employees.

Grants are awarded annually. Grant recipients are expected to contribute 20 percent of the total grant cost.

While OSHA does not distribute grant materials directly, it will provide addresses and phone numbers of contact persons from whom the public can order such materials for its use. However, OSHA does provide limited lending of grant-produced audiovisual training programs through the Resource Center Audiovisual Circulation Project. Contact the OSHA Training Institute at (708) 297-4810.

Consultation Assistance

Consultation assistance is available to employers who want help in establishing and maintaining a safe and healthful workplace. Largely funded by OSHA, the service is provided at no cost to the employer, and is available in every State and territory.

Primarily targeted for smaller employers with more hazardous operations, the consultation service is delivered by state government agencies or universities employing professional safety consultants and health consultants. On-site OSHA consultation assistance includes an opening conference with the employer to explain the ground rules for consultation, a walk through the workplace to identify any specific hazards and to examine those aspects of the employer's safety and health program which relate to the scope of the visit, and a closing conference followed by a written report to the employer of the consultant's findings and recommendations.

This process begins with the employer's request for consultation and the commitment to correct any serious job safety and health hazards identified by the consultant. Possible violations of OSHA standards will not be reported to OSHA enforcement staff unless the employer fails or refuses to eliminate or control worker exposure to any identified serious hazard or imminent danger situation. In such unusual circumstances, OSHA may investigate and begin enforcement action. Employers must also agree to allow the consultant to freely confer with employees during the on-site visit.

Additional information concerning consultation assistance, including a directory of OSHA-funded consultation projects, can be obtained by requesting OSHA publication No. 3047, Consultation Services for the Employer.

Voluntary Protection Program (application and information)

The Voluntary Protection Program (VPP) is one of many OSHA initiatives aimed at extending worker protection beyond the minimum required by OSHA standards. This program, along with others such as expanded on-site consultation services and full-service area offices, is a cooperative approach which, when coupled with an effective enforcement program, expands worker protection to help meet the goals of the Occupational Safety and Health Act of 1970.

The VPP is designed to:

• Recognize outstanding achievement of those who have successfully incorporated comprehensive safety and health programs into their total management system;
• Motivate others to achieve excellent safety and health results in the same outstanding way; and,
• Establish a relationship between employers, employees, and OSHA that is based on cooperation rather than coercion.

OSHA reviews an employer's VPP application and conducts an on-site review to verify that the safety and health program described is in operation at the site. Evaluations are conducted on a regular basis, annually for Merit and Demonstration programs, and triennially for Star programs. All participants must send their injury information annually to their OSHA regional office. Sites participating in the VPP are not scheduled for programmed inspections; however, any employee complaints, serious accidents or significant chemical releases that may occur are handled according to routine enforcement procedures.

An employer may make application for the Program at the nearest OSHA regional office . Once OSHA is satisfied that, on paper, the employer qualifies for the program, an onsite review will be scheduled. The review team presents its findings in a written report for the company's review prior to submission to the Assistant Secretary, who heads OSHA. If approved, the employer receives a letter from the Assistant Secretary informing the site of its participation in the VPP. A certificate of approval and flag are presented at a ceremony held at or near the approved worksite. Star sites receiving re-approval after each triennial evaluation receive plaques at similar ceremonies.

The VPP is available in states under federal jurisdiction. Some states with their own safety and health programs have similar programs. Interested companies in these states should contact the appropriate state agency for more information.

Information Sources

Information about state programs, VPP, consultation programs, and inspections can be obtained from the nearest OSHA regional, area, or district office. Area offices are listed in local phone directories under U.S. Government listings for the U.S. Department of Labor. OSHA's Public Service Plan, published in September 1994, is a good source for these phone numbers. Copies are available from the OSHA Publications Office, whose address, telephone and facsimile number in the paragraph below.

The OSHA Home Page contains information on other OSHA activities, statistics, media releases, technical assistance, and links to other safety and health Internet sites. OSHA has a number of interactive advisors to assist employers in complying with OSHA standards.

A single free copy of an OSHA catalog, OSHA 2019, "OSHA Publications and Audiovisual Programs," may be obtained by mailing a self-addressed mailing label to the OSHA Publications Office, Room N3101, U.S. Department of Labor, Washington, DC 20210; telephone (202) 219-4667; facsimile (202)219-9266. Descriptions of and ordering information for all OSHA publications and audiovisual programs are contained in this catalog.

A variety of information is available on OSHA’s Publications website , including on-line publication order forms, the OSHA poster, guidance on OSHA recordkeeping, and on-line access to several OSHA publications in PDF format.

Questions about OSHA programs, the status of ongoing standards-setting activities, and general inquiries about OSHA may be addressed to the OSHA Office of Information & Consumer Affairs, Room N3637, U.S. Department of Labor, Washington, DC 20210; telephone (202) 219-8151.

Penalties (Inspections and Citations)

Workplace Inspections

To enforce its standards, OSHA is authorized under the Act to conduct workplace inspections. Every establishment covered by the Act is subject to inspection by OSHA compliance safety and health officers (CSHOs) who are chosen for their knowledge and experience in the occupational safety and health field. CSHOs are thoroughly trained in OSHA standards and in the recognition of safety and health hazards. Similarly, states with their own occupational safety and health programs conduct inspections using qualified state CSHOs.

OSHA conducts two general types of inspections: programmed and unprogrammed. There are various OSHA publications and documents which describe in detail OSHA’s inspection policies and procedures. Unprogrammed inspections respond to fatalities, catastrophes and complaints, the last of which is further detailed in OSHA's complaint policies and procedures.

The following are the types of violations that may be cited and the penalties that may be proposed:

• Other-Than-Serious Violation: A violation that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm. A proposed penalty of up to $7,000 for each violation is discretionary. A penalty for an other-than-serious violation may be adjusted downward by as much as 95 percent, depending on the employer's good faith (demonstrated efforts to comply with the Act), history of previous violations, and size of business. When the adjusted penalty amounts to less than $50, no penalty is proposed.
• Serious Violation: A violation where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard. A mandatory penalty of up to $7,000 for each violation is proposed. A penalty for a serious violation may be adjusted downward, based on the employer's good faith, history of previous violations, the gravity of the alleged violation, and size of business.
• Willful Violation: A violation that the employer intentionally and knowingly commits. The employer either knows that what he or she is doing constitutes a violation, or is aware that a hazardous condition exists and has made no reasonable effort to eliminate it.

The Act provides that an employer who willfully violates the Act may be assessed a civil penalty of not more than $70,000 but not less than $5,000 for each violation. A proposed penalty for a willful violation may be adjusted downward, depending on the size of the business and its history of previous violations. Usually no credit is given for good faith.

If an employer is convicted of a willful violation of a standard that has resulted in the death of an employee, the offense is punishable by a court-imposed fine or by imprisonment for up to six months, or both. A fine of up to $250,000 for an individual, or $500,000 for a corporation [authorized under the Comprehensive Crime Control Act of 1984 (1984 CCA), not the OSH Act], may be imposed for a criminal conviction.

• Repeated Violation: A violation of any standard, regulation, rule or order where, upon reinspection, a substantially similar violation is found. Repeated violations can bring a fine of up to $70,000 for each such violation. To be the basis of a repeat citation, the original citation must be final; a citation under contest may not serve as the basis for a subsequent repeat citation.
• Failure to Correct Prior Violation: Failure to correct a prior violation may bring a civil penalty of up to $7,000 for each day the violation continues beyond the prescribed abatement date.

Additional violations for which citations and proposed penalties may be issued are as follows:

• Falsifying records, reports or applications can bring a fine of $10,000 or up to six months in jail, or both;
• Assaulting a compliance officer, or otherwise resisting, opposing, intimidating, or interfering with a compliance officer in the performance of his or her duties is a criminal offense, subject to a fine of not more than $250,000 for an individual and $500,000 for a corporation (1984 CCA) and imprisonment for not more than three years.

Citation and penalty procedures may differ somewhat in states with their own occupational safety and health programs.

Appeals Process

• Appeals by Employees: If an inspection was initiated as a result of an employee complaint, the employee or authorized employee representative may request an informal review of any decision not to issue a citation.

Employees may not contest citations, amendments to citations, penalties or lack of penalties. They may contest the time in the citation for abatement of a hazardous condition. They also may contest an employer's Petition for Modification of Abatement (PMA) which requests an extension of the abatement period. Employees must contest the PMA within 10 working days of its posting or within 10 working days after an authorized employee representative has received a copy.

Within 15 working days of the employer's receipt of the citation, the employee may submit a written objection to OSHA. The OSHA area director forwards the objection to the Occupational Safety and Health Review Commission, which operates independently of OSHA.

Employees may request an informal conference with OSHA to discuss any issues raised by an inspection, citation, notice of proposed penalty or employer's notice of intention to contest.

• Appeals by Employers: When issued a citation or notice of a proposed penalty, an employer may request an informal meeting with OSHA's area director to discuss the case. Employee representatives may be invited to attend the meeting. The area director is authorized to enter into settlement agreements that revise citations and penalties to avoid prolonged legal disputes.
• Notice of Contest: If the employer decides to contest either the citation, the time set for abatement, or the proposed penalty, he or she has 15 working days from the time the citation and proposed penalty are received in which to notify the OSHA area director in writing. An orally expressed disagreement will not suffice. This written notification is called a "Notice of Contest."

There is no specific format for the Notice of Contest; however, it must clearly identify the employer's basis for contesting the citation, notice of proposed penalty, abatement period, or notification of failure to correct violations.

A copy of the Notice of Contest must be given to the employees' authorized representative. If any affected employees are not represented by a recognized bargaining agent, a copy of the notice must be posted in a prominent location in the workplace, or else served personally upon each unrepresented employee.

Appeal Review Procedure

If the written Notice of Contest has been filed within the required 15 working days, the OSHA area director forwards the case to the Occupational Safety and Health Review Commission (OSHRC). The Commission is an independent agency not associated with OSHA or the Department of Labor. The Commission assigns the case to an administrative law judge.

The judge may disallow the contest if it is found to be legally invalid, or a hearing may be scheduled for a public place near the employer's workplace. The employer and the employees have the right to participate in the hearing; the OSHRC does not require that they be represented by attorneys.

Once the administrative law judge has ruled, any party to the case may request a further review by OSHRC. Any of the three OSHRC commissioners also may individually move to bring a case before the Commission for review. Commission rulings may be appealed to the appropriate U.S. Court of Appeals.

Appeals In State-Plan States

States with their own occupational safety and health programs have a state system for review and appeal of citations, penalties, and abatement periods. The procedures are generally similar to Federal OSHA's, but cases are heard by a state review board or equivalent authority.

Relation to State, Local and Other Federal Laws

The agency covers all working conditions that are not covered by safety and health regulations of another federal agency under other legislation. Industries where such regulations frequently apply include most transportation industries (rail, air and highway safety are under the Department of Transportation), nuclear industries (covered either by the Department of Energy or the Nuclear Regulatory Commission) and mining (covered by the Department of Labor's Mine Safety and Health Administration, and discussed elsewhere in this publication). OSHA also has the authority to monitor the safety and health of federal employees. It is the goal of all federal agencies to make their requirements compatible with those of Federal OSHA and to avoid conflicts and duplication.

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