G. Job Safety

On the average, more than a dozen U.S. workers die each day from injuries in the workplace and another 10,000 are hurt seriously enough to lose work time or be placed on restricted duty. Even so, numerous changes benefiting workers have occurred in the area of health and safety. Federal and state laws give employees the right to refuse dangerous work and receive accurate reports concerning toxic substances in their working environment. Increased activity by representatives of the federal Occupational Safety and Health Administration (OSHA) has also played a large role in protecting employees from unsafe working conditions.

How OSHA Affects Employers

The l970 Occupational Safety and Health Act requires employers to provide a safe and healthful workplace. This federal law applies to every private employer who is involved in interstate commerce, regardless of size. Furthermore, most states have passed occupational safety and health plans approved by federal OSHA. Some of these laws are even stricter in their compliance and enforcement standards than the federal law. For example, in one recent case, the Supreme Court of Illinois ruled that the federal Occupational Safety and Health Act does not prohibit state officials from enforcing criminal penalties against employers who violate OSHA regulations. The Occupational Safety and Health Administration, created to enforce this law, issues regulations on worker safety that employers must follow. OSHA inspectors visit work sites to ensure compliance and penalties can be imposed, including significant fines and/or imprisonment for employers and key personnel who willfully or repeatedly violate OSHA laws or fail to correct hazards within fixed time limits. The law includes.findlaw an extremely broad general duty clause requiring all employers to furnish a workplace that is free from recognized hazards. This means that employers are required to comply with safety rules, are subject to inspections without notice (with an employee representative present) and no employee who makes a com- plaint can be subject to retaliation, loss of work or benefits, or demotion. Under OSHA, workers are allowed:

• To refuse to perform work in a dangerous environment (e.g., in the presence of toxic substances, fumes or radioactive materials);
• To strike to protest unsafe conditions;
• To initiate an OSHA inspection of dangerous working conditions by filing a safety complaint;
• To participate in OSHA inspections, pre-hearing conferences and review inspection hearings;
• To assist the OSHA compliance officer in determining that violations have occurred;
• To petition that employers provide adequate emergency exits, environmental control devices (e.g., ventilation, noise elimination devices, radiation detection tags, signs and protective equipment) and the ready availability of medical personnel;
• To request time off with pay to seek medical treatment during working hours;
• To request eating facilities in areas which have not been exposed to toxic substances;
• To request investigations when they are punished for asserting their rights.

Every aspect of plant safety is governed by OSHA, which is a part of the U.S. Department of Labor, and is responsible for promulgating and enforcing job safety and health regulations. OSHA personnel inspect workplaces to monitor compliance with the Act and issue citations against employers when the agency discovers unsafe work- place conditions.

For example, OSHA has issued guidelines for the agency's response to workplace catastrophes resulting in multiple fatalities, extensive injuries, massive toxic exposures, or extensive property damage. Every company should study the OSHA instruction to update its own emergency response plan to interact with OSHA's investigation.

Penalties For Non-Compliance. House and Senate committees with labor jurisdiction are holding hearings on bills designed to strengthen OSHA. Key provisions of suggested legislation would require employers to create joint labor-management health and safety com- mittees at the work site, strengthen criminal penalties against corporations and their executives in cases of death or serious injury, and extend coverage to the more than seven million state and local government employees who have no OSHA protection. Under the current statute, OSHA may seek criminal penalties whenever a willful violation of a specific standard causes the death of an employee. Punishment is by fine of up to $10,000 or by imprisonment up to six months; punishment doubles for subsequent violations. In addition, state officials are increasingly bringing criminal actions against employers, corporate officials and supervisors for employee deaths resulting from safety violations. Among the kinds of criminal actions being sustained are aggravated battery, reckless conduct and manslaughter prose- cutions of supervisors. Penalties for civil violations have now risen to a maximum of $7,000 per incident and for repeated violations, up to $70,000 per incident.

Counsel Comment #100: Health and safety violations are becoming more expensive for companies to defend and more prevalent in terms of the number of charges filed. Since the trend is to add more teeth to penalties arising from such violations, including increased fines and jail time for company officers, supervisors and managers, be certain that your company hires an individual or team of people knowledgeable about specific state and OSHA regulations and requirements, or train selected indi- viduals to supervise and oversee problems in this area.

Protection From Retaliation. An important aspect of the federal OSHA law is that it protects workers from retaliation after they assert their rights. In one case, a number of workers walked off the job, claiming it was too cold to work. The company fired them, stating that they violated established work rules by stopping work without notifying their supervisor. The workers filed a complaint alleging an unfair labor practice. The U.S. Supreme Court ruled that since the workers were within their constitutional rights to strike over health and safety condi- tions, the firing was illegal. As a result, the workers were given their jobs back, together with lost pay. In subsequent cases the Supreme Court has affirmed the right of an employee's good faith refusal to work in the face of hazardous conditions which might lead to death or serious injury when the employee has no reasonable alternative.

TIP: There is also an increasing trend in many states to prohibit the discharge of or discrimination against any employ- ee who files an occupational health and safety complaint. Protection against whistleblower activities pertaining to health and safety in the workplace are becoming the norm and your company should avoid terminating workers who take action in this area. Also illegal are reprisals such as demotions, trans- fers, or reduced hours against workers who gripe to OSHA.

Counsel Comment #101: Maintaining a safe workplace begins with the orientation of new workers. Set the stage from the beginning by letting the new employee know that safety is a very important focus at your workplace. While job descriptions and work environment will determine what specific safety training must be given an employee, all new workers should receive an overall safety orientation.

Management's commitment to accident and injury preven- tion must always be conveyed. Make clear that employee parti- cipation is needed to prevent accidents. Request that workers notify management without penalty, of any unsafe condition or potential hazard. Constantly remind supervisors to maintain safe and productive work operations. Advise workers not to undertake a task before learning the safe method of doing it and being authorized by a supervisor to proceed. Remind new employees about hazard recognition and that any injury, even a slight one, must be reported and treated immediately.