Designing an effective OSHA compliance program

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by ILISE FEITSHANS

Chapter 1. Necessity of a Compliance Program

I. INTRODUCTION–GENERALLY
In-house occupational safety and health compliance programs serve two major functions: (1) providing clear evidence of an enterprise’s commitment to obeying the law, while (2) identifying hazards in time to reduce costs and potential liability.
Corporate compliance in the 21st century requires pulling together scientific information and a staff that has a variety of talents, in order to obey an ever-growing cluster of laws that center around the societal need to protect occupational safety and health. The Occupational Safety and Health Act of 1970 (OSH Act)1 is one of the most important statutes found in federal, state and international law protecting people at work—but it is only one of the laws that create a web of e mployer obligations to fashion and demonstrate the validity of health and safety protections in their workplace.
The philosophy that work-related illnesses are an avoidable aspect of industrialization is a fundamental tenet of all. OSH Act emphasizes each employer’s responsibility to recognize, correct and reduce potential hazards. Strong penalties await employers whose enterprises produce preventable harms. Although occupational safety and health laws, and OSH Act is no exception. OSH Act Section 5, the “General Duties,” clause requires employers to provide “employment and places of employment that are free of recognized hazards.” Case law states that this term includes a wide variety of potential harmno specific equation will predict how many dollars invested in occupational safety and health compliance programs will result in specific dollars saved, effective programs have many benefits.
In-house occupational health and safety compliance systems can:
(1) Avoid potential tort liability;
(2) Reduce lost productivity and down
time;
(3) Avoid Occupational Safety and Health Administration (OSHA) fines and penalties;
(4) Prevent injury, illness and disease;
(5) Coordinate compliance for environmental protection statutes;
(6) Provide support for compliance with Americans With Disabilities Act (ADA) and its attendant obligations to protect asymptomatic individuals under the Genetic Information Non Discrimination Act (“GINA”);
(7) Work with government agencies for emergency preparedness and Homeland Security;
(8) Reduce workers compensation costs;
(9) Reduce employer-based health insurance costs through targeted health promotion consistent with the requirements of the Patient Protection Affordable Care Act of 2010 (PPACA)4; and
1Occupational Safety and Health Act (OSH Act), 29 U.S.C.A. §§651 et seq. Please note that people often confuse “OSHA”, the Occupatonal Safety and Health Administration, with “OSH Act” which is the actual law.
4 The PPACA is commonly called in the press “Obamacare” but it is the Patient Protection Affordable Care Act
(10) Promote compliance with Health Insurance Portability and Accountability Act (HIPAA) through due diligence for privacy and security of data.
Compliance staff must have a command of occupational health laws, health insurance laws, laws prohibiting discrimination based on age or disability and perhaps even federal entitlements to social security for workers in their sixties as part of routine compliance practices. Like the captain of the ship in The Perfect Storm, the in-house corporate compliance staff designing an OSHA compliance program will be at the front lines with the last clear chance to retreat from risk or harms that are predictable or can be anticipated with the warnings and advice of experts and colleagues. The expanding definition of work-related illness and the concurrent increase in understanding the mechanisms for disease processes conspire to highlight the expanding scope of responsibility for maintaining in-house OSH Act compliance. Workers’ compensation also creates a pervasive need to demonstrate to third parties in court or administrative hearings the due diligence of an employer or other responsible party regarding compliance programs that provide evidence of adherence to the standards under law.
Unlike the captain in The Perfect Storm,9 legal counsel and related compliance staff must have the good sense to apply sound information about immediate dangers, despite the undercurrent of pervasive risks, in order to steer clear of danger. And the compliance staff must have the power and professional integrity in order to use sound occupational health information, even in the face of a storm of controversy regarding the potential economic loss or other costs associated with withdrawing or modifying a proposed course of action. In-house legal staff therefore must learn about scientific issues as a requisite to understanding the issues they face, so high level management will not be unduly vulnerable to industrial disasters or other types of predictable, foreseeable occupational safety and health harms. On the contrary, the state of the art of prevention and the legal rigor of on-going pervasive regulation, even in a mild, uncontentious regulatory climate, means that the wave of public concern has risen to create a new high water mark for the standard operating practices, “best practices,”–taking steps toward achieving results that reflect sound in-house programs for OSHA compliance.
Compliance programs therefore provide the constant, although ever-changing means for an employer to demonstrate due diligence complying with law, by offering the in-house blueprint to conduct important oversight in areas of law that require understanding of several statutes at the same time: discrimination based on age, gender, race, ethnicity religion or disability combined with health insurance requirements for privacy and smooth transfer of billing data become more complex with the changing demographic of the workforce and the splintered organization of work among outsourced consultants, independent contractors and full-time employees. To be effective, corporate in-house compliance programs must keep pace with new technologies and new legislation, while taking into account important global events and demographic changes in the market’s context. Changes in demographics, technology and the impact of globalization have dramatically altered the nature and organization of work in the
9Sebastian Junger, The Perfect Storm: A True Story Of Men Against the Sea (1997) (documents how six men died in a fishing expedition that was undertaken despite warnings of bad weather conditions, with explicit details regarding the safety precautions that could have been followed and a discussion of the economic drivers for the decision to send the boat out and a description of the impact that occupational death had on crew members’ families).
United States and throughout the world.3 In his inspiring address that envisioned the future of occupational health,4 the Director of NIOSH eschewed traditional models for occupational health, underscoring that old ways of doing things in the workplace no longer reflect the composition of the workforce or the hours of work in the United States where there exists a “transcultural workforce;”–comprised of older workers, workers from cultures that were not previously represented in the workforce in great numbers, and workers who work for several employers if not at the same time then certainly during their lifetime. This new approach takes into account a wide variety of special individual needs, custom tailors workplace protections rather than offering a “one size fits all” approach and includes lifelong learning and new paradigms that will teach older workers new skills to meaningfully participate in the turnover of intellectual property.
1:1 Occupational Health Programs and Wellness Partnership Encouraged By Federal Health Care Insurance Requirements.
A host of federal laws requires employers to provide insurance, guard confidentiality and prevent discrimination against persons with disabilities, consistent with contemporary international laws. Thus, health is a key component of creating and maintaining a functioning enterprise in the USA. As the U.S. workforce becomes increasingly heterogeneous from the standpoint of age and disability, questions of health promotion and workplace wellness can be viewed as less a matter of personal choices, and increasingly viewed as environmentally influenced by factors that are not individually based and not beyond the employer’s control. For example, smoking was encouraged by popular culture in the 1940’s thru 1960’s; but contemporary culture has discouraged and, in some states, prohibited smoking in public. The role of smoking cessation in the workplace is no longer focused on the personal choice to smoke, and is more generally accepted as an employer-based responsibility to carry a burden as a good citizen, or as an enforcer of laws prohibiting smoking in certain public areas or certain working conditions. Thus, smoking cessation has changed from an issue of strictly individual choice to a matter of employer responsibility to enforce laws that prevent smoking and thereby protect other people. Passive smoking is increasingly understood to be a major health hazard, and therefore employee smoking is an excellent example of a behavior that was previously treated as a question of personal choice and lifestyle, now increasingly reigned in by employers’ control. As a result, employers who might not have intervened in behavioral issues regarding smoking when the OSH Act was written, may now find smoking cessation as an important goal for in-house compliance programs.2
Every employee’s right to complain about unsafe or unhealthful working conditions, and
3See Ilise L. Feitshans, “NIOSH Director Launches New Millenium From Mt. Sinai”, OEM Rep. (May 2004).
4New York-New Jersey Education and Research Center, 25th Annual Scientific Meeting: Advancing Work Health and Safety in the New Millenium (Apr. 16, 2004).
2Glorian Sorensen & Elizabeth Barbeau, Steps to a Healther U.S. Workforce: Integrating Occupational Health and Safety and Worksite Health Promotion: State of the Science 1 (2004) (citing NIOSH, NIOSH Program Plan by Program Areas for Fiscal Years 1984-1989 (1984)), available http://www.cdc.gov/niosh/steps/pdfs/NIOSH-post-symprevision.pdf (last visited Apr. 18, 2005). Ilise L Feitshans, Is Second Hand Smoke Something We Should Just Blow Off? Legal Watch, Reader beware: A review of Legal Options for Condominium Owners Exposed to Secondhand Smoke, by Susan Schoenmarklin, The Tobacco Control Legal Consortium, the HUMAN ECOLOGIST QUARTERLY, HEAL Foundation Summer 2007
the right to refuse hazardous employment without reprisal is a vital aspect of employee involvement protected by statute. According to OSHA, there must be, under law and in practice, protection against the employer discriminating or retaliating against a representative or complaining worker under OSHA §11(c). This requires more than simply issuing a statement that there are no penalties, it requires an even-handed oversight mechanism, with written porocedures and rules. During inspections, the agency may speak with employees and seek evidence of their mistreatment following complaints, so a clear mechanism for accepting complaints without reprisal is doubly useful: both to support the employer’s defense against §11(c) violations and to support the flow of information about hazardous conditions, which should be brought to light through an effective in-house compliance program.
1:2 Occupational Health for An Aging Workforce Aging is a demographic change that impacts the workforce and thus shapes in house compliance programs.5 Aging is a heterogeneous process; although all people are affected by it, the effects have a high rate of individual variation with little predictability. The impact of aging on the current workforce is quite important, because people live longer and are healthier, and because they need to keep their jobs in order to maintain their income to support unemployed dependents in a difficult economy. The impact of aging on individuals is related to genetics and lifestyle combined with the impact of working conditions; the same working conditions that were not harmful during a few years of exposure may take their toll after decades of work, or may have an unexpectedly high level of risk as the physiology of older workers becomes more fragile. For example, maturing nurses6 represent one population among which OSHA and NIOSH are expected to target research, with a view towards developing models for health protection and health promotion that accurately respond to the changing demographics of an aging workforce in the new era in occupational health.7 The nursing shortage combined with an expanding demand for health care means that more nurses will work later in their life. National and local laws prohibiting discrimination based on disability and the UN Convention of 2006 that complements them typically also protect people who are otherwise considered « healthy » from discrimination. This adds an additional layer to the complex issue of hiring and maintaining a workforce that is aging. Without reaching the issues of civil rights for people in the older population, older workers may nonetheless demand their rights to employment if another person or institution has harmed them because of a mistaken belief that the person is disabled or if the illness or disease is « not manifest », because of the close association between disability and older age. Such terms as “healthy” and “disabled” under law, and therefore the legal context of occupational health in-house compliance programs, will take on a whole new meaning in a generation when treatments may be required or commonplace using medicines that depend upon implementing laws that require accomodation to special needs as a fundamental tenet of preventing discrimination. According to the chart in Figure 1 below, from the World Health Organization (WHO) World Report on Disability (June 2011), the
5See Paul Rountree, Maturing Nurses (draft paper) (on file with author)
6See generally Paul Rountree, Maturing Nurses (draft paper) (on file with author)
7Hans Sigvardson & Betty Bogue, No Lift Success Story, Occupational Health and Safety Magazine 46-50 (2004).
largest single demographic variable for the global burden of disease is aging [13]. According to this chart, depending on income, disability will impact between forty per cent (40%) and sixty per cent (60%) of the aging population. Fig 1 Scope of the aging population of people with disabilities (“PWD”) SOURCE: World Report on Disability, World Health Organization (WHO June 2011) page 34
A robust compliance program will take into account that not all of these disabled workers will be permanently disabled, and that many aging worker will still contribute to society by their participation in the workforce, even if they have a long-term condition that is not considered to prevent them from working when they are accorded “reasonable accomodations”. New treatments for diseases such as Parkinson and Alzheimers, for example, may mean that people who were not capable of working at the age of seventy will be more than capable of returning to work. A revolving door approach to health care, health insurance, occuaptional health services provided by the employer, and on site job hazards analysis must take into account this important change in demographics and fold it into the workings of an efficient compliance program.
1:3. The nuts and bolts of occupational health compliance
Sound compliance programs are applicable globally across many types of operations1. A compliance program must: (1) expand the scope of audits beyond policies, to include procedures; (2) take affirmative steps to “find out what’s going on”; (3) empower compliance personnel; (4) discipline with vigor; and (5) clearly document activities in the compliance program; without documentation, the program never happened. The difference between “genuine” or “meaningful” compliance and “sham” compliance programs, however, is found in their implementation. Enhancing in-house occupational health compliance infrastructures involves describing the “how to” of in-house compliance programs to each member of the staff, from the top of the organization to the lowest echelons. Effective management systems use approaches honed by OSHA to prevent, detect, report and correct failures in occupational safety and health protections
1 See: Texas House Bill 2473 (codified at Tex. Rev. Civ. Stat. Ann. Art. 4447c and Tex. Gov’t Code Ann. §552.124). The author expresses thanks to Terrel Huut, who provided a copy of the latest version of this bill and commentary. This section is based on a paper prepared by Feitshans & Sharpe, “The Nuts and Bolts of Compliance Programs: Occupational Health Management Systems in Australia and the USA,” prepared for presentation at the International Workplace Health and Safety Forum and 33rd Ergonomics society of Australia Conference, Conrad Jupiters Gold Coast 24-27 1997 reprinted in Feitshans, Bringing Health To Work, 1997.
OSHA’s Voluntary Protection Programs (VPP)2 require identifying occupational health problems to prevent future harm, by requiring job hazard analysis, management commitment and employee involvement.
Due diligence
To be effective, a compliance program must be able to prove itself. This requires that the program be documented in order to prove that the employer has complied with the law. Each in-house compliance program must decide for itself the area of emphasis that will best foster compliance, specific to the workplaces and the demands of the tasks at hand. This requires examining the relative advantages and weaknesses of different components of effective occupational health programs.
Due diligence is the fundamental concept for crafting and implementing effective in-house management systems for occupational health compliance that avoids liability.In many legal systems, in addition to the USA, the law requires that every effort has been made in advance to protect the public health and manage risk, regardless whether that risk can be quantified. The ability to prove that such efforts exist on a systematic basis throughout the employer’s company, the so-called “paper trail” is dependent entirely upon proving this concept of “due diligence”. Compliance programs offer concrete proof of due diligence, and thus allow an employer to enjoy a presumption of compliance in areas of the law where the limits are unknown. To do so, however, requires candid ongoing detailed scrutiny of internal problems within the worksite, as well as documentation of every reasonable effort for troubleshooting and creating the most reasonable solutions to those problems. One key tool is the internal audit, and there are several examples of the major components of audit systems offered in various acts of legislation. According to OSHA’s Management Guidelines,1 giving safety and health equal organizational priority in relation to the enterprise’s other objectives is fundamental to the protection of individual employees and to the effectiveness of the organization itself. The Guidelines require that program operations be reviewed at least annually to evaluate their success in meeting the goal and objectives, so that deficiencies can be identified and program objectives can then be revised to enhance the goal of effective safety and health protection. Achieving this goal requires two specialized types of internal audits and review: First, in-house self-inspection, requires detailed preparation with the full cooperation of all staff and oversight by all members of the compliance team. This step involves a needs assessment and evaluation of actual working conditions in light of the existing written policies and occupational safety and health guidelines that have been prepared by corporate counsel. Second, independent internal audits, using information gathered and analyzed by outside consultants hired by the enterprise, can uncover potential hazards and occupational safety and health problems that may have been too sensitive to be discussed by permanent staff. The combined information should be used to refine existing procedures and implement improvements. The entire cycle of internal audit and review should eventually be integrated into routine procedures such as facility maintenance, and
2 See Feitshans & Oliver, “More Than Just a Pretty Program: OSHA Voluntary Protection Programs Improve Compliance By Facing Problems Head-On,” 5 Corp. Conduct Q. 4 (1997). OSHA has a webpage for VPP, STAAR and Merit programs and these efforts are amplified by the VPP non-governmental organization.
1OSHA Safety and Health Program Management Guidelines, 54 Fed. Reg. 3904 to 3916 (1989) (henceforth OSHA Management Guidelines).
repeated on an assigned and well-publicized schedule.
According to the Texas Environmental Health and Safety Audit Privelege Act 1, for example, “Environmental or health and safety audit” means a systematic voluntary evaluation, review, or assessment of compliance with environmental or health and safety laws or any permit issued under those laws conducted by an owner or operator, an employee of the owner or operator, or an independent contractor of: a regulated facility or operation; or an activity at a regulated facility or operation”
Audit reports typically include:
1. a report prepared by an auditor, monitor, or similar person, which may include:
(A) a description of the scope of the audit;
(B) the information gained in the audit and findings, conclusions, and recommendations; and
(C) exhibits and appendices;
(2) memoranda and documents analyzing all or a portion of the materials discussing implementation issues; and
(3)an implementation plan or tracking system to correct past noncompliance, improve current compliance, or prevent future noncompliance.
Exhibits and appendices that may be contained in an audit report include supporting information that is collected or developed in the course of an audit, such as:
(1) interviews with current or former employees;
(2) field notes and records of observations;
(3) findings, opinions, suggestions, conclusions, guidance, notes, drafts, and memoranda;
(4)legal analyses;
(5)drawings;
(6)photographs;
(7)laboratory analyses and other analytical data;
(8)computer-generated or electronically recorded information;
(9) maps, charts, graphs, and surveys; and related communications
1:4. Design components of management systems: Due Diligence is Your Best Friend
1 Texas House Bill 2473 (codified at Tex. Rev. Civ. Stat. Ann. Art. 4447c and Tex. Gov’t Code Ann. §552.124). The author expresses thanks to Terrel Huut, who provided a copy of the latest version of this bill and commentary.
Confirm
Anticipate
Recognize
Evaluate
Risk Management
Decision-Making
Framework
Control
Draft for discussion
Due diligence requires developing committee structures and, then the regular use of a
smooth-flowing, on-going infrastructure for improved communications for training and for
reporting compliance problems. The in-house compliance program for safety and health cannot
be treated as if it were a trade secret. A clear organizational structure allocates in-house
compliance tasks and make in-house staff accountable for the achievement of compliance
program goals and objectives. These goals and objectives should be stated by the employer’s
actions and in its written policies. Implementation of the compliance approaches in these
programs can assist organizations to anticipate areas where compliance failures may arise
employing hotlines, committees and other compliance tools to prevent systemic failures.
A “management system” is the best practice for ensuring compliance with the law,1
because it offers evidence of Due Diligence and, when working properly, the management
system will serve as a troubleshooter to: detect, report, correct and prevent problems before they
become a catastrophe. Effective in-house OSHA compliance programs require the best possible
lines of communication in order to be successful. In order to work, lines of communication must
be established long in advance of any emergency. Such efforts can also facilitate compliance
with new changes or modifications in the federal law because of their inherent flexibility.
Management systems must take into account the possibility that compliance will require bold
changes in the structure of an organization, and thus anticipate how to achieve buy-in from
corporate personnel. The strongest systems are cyclical as noted in the Chart by Dr Mark
Hoover5. The notion of a cyclical system makes reporting normal as well as required, with builtin
follow up as well as long term accountability. With the help of corporate anthropologists and
outside consultants, staff can be briefed about key issues, when designing the overall in-house
approach to occupational safety and health right to know training, tailored to corporate culture of
a specific enterprise and thereby creating a specialized system with effective results.2
1See generally, Ilise L. Feitshans, Discussion of Compliance Programs Bringing Health to Work (Emalyn
Press, 1997).
5 Mark D. Hoover, PhD, CHP, CIH, “Some Key Elements for Assessing and ManagingIdeas for
DiscussionExposures to Occupational Hazards, National Institute for Occupational Safety and Health, Morgantown,
West Virginia USA , Draft date: October 27, 2010
2Cargill, Inc. v. U.S., 173 F.3d 323, 18 O.S.H. Cas. (BNA) 1685, 1999 O.S.H. Dec. (CCH) P 31814 (5th Cir. 1999).
1:4 Best Practices in the Absence of “Zero Risk”
Best practices may require changes in enterprise culture to produce necessary programs; with visible support and full commitment to safety and health from executive level management. Best practices may range from the use of occupational safety and health statistics in quarterly reports and reporting on workplace safety issues to the board of directors on a regular basis, to the structural decision to include safety engineers and industrial hygienists among the vice presidents and executive staff. There is no such thing as “zero risk.” Nor is there, as OSHA had once argued before the U.S. Supreme Court, a “risk-free” workplace. Effective prevention methods exist however; implementing those protective strategies through compliance programs can alert staff throughout every level of the enterprise to the many compelling reasons to cooperate in programs that increase awareness of risks, and prevent injuries and illnesses, thereby improving working conditions. Effective corporate compliance policies therefore emphasize the “best practices” and develop their own incentives for recognizing the benefits of compliance. Compliance has blossomed in the years since the U.S. Department of Labor established an office of compliance affairs. Effective programs to prevent and detect violations of law have thus become the mainstay of several agencies including the Occupational Safety and Health Administration (OSHA), which include:
(1) setting procedures that are capable of reducing criminal acts;
(2) assigning high level personnel to compliance;
(3) preventing the delegation of authority to people who are likely to engage in illegal activity;
(4) effectively communicating standards and procedures to all employees;
(5) implementing reasonable compliance measures such as monitoring, auditing and reporting systems;
(6) using discipline to enforce standards; and
(7) taking appropriate steps to detect and correct offenses, including changing the program as necessary.
(8) Repeated compliance activity requires diligent monitoring to prevent harm.
1:5. Design components of a management system– Starting out
The starting point for creating or auditing any compliance system is understanding that compliance is a results-driven task. Ultimately, the only thing that really matters is whether the system is actually effective in minimizing breaches of the law in practice. As is suggested by the OSHA Process Safety Management initiatives (adopted in the early 1990s),1 proving due diligence requires ongoing and overt commitment. OSHA has offered extensive information to support staff who choose to demonstrate managerial commitment to in-house occupational safety and health compliance. As a result, the existing regulations are an admixture of specific requirements and “performance” standards. These requirements and standards can be viewed as reflecting a practical understanding of what is required when compared to other areas of compliance such as antitrust or competition policy. This notion of commitment involves three inter-related spheres of activity that traverse the corporate structure “from the boardroom to the mailroom.” In OSHA’s words, these prongs are: (1) active employee involvement, (2)visible
1U.S. Dep’t of Labor, OSHA, Compliance Guidelines and Recommendations for Process Safety Management (Nonmandatory).–1910.119 App C www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=9763&p_table=STANDARDS.
management commitment to compliance efforts for worker protection, and (3) sustaining compliance.2
How does one know whether the efforts to apply these programs is meaningful in the eyes of regulators, or more importantly, actually achieving anything?
Without full-time, up-and-down-the-line support for the implementation of these three elementary components, success is extremely unlikely. Commitment is easy to say, but it can be difficult to achieve. Due diligence requires more than just a written compliance philosophy and saying that everyone must adhere to it. A written policy is necessary, and it must come from the top (preferably from the Board). Manuals should be succinct and kept practical, intelligible and useful. Legal explanations complete with case references, require back-up training to be useful. Such requirements are also consistent with common sense and regulatory requirements for training. Managers do not need, do not want, and cannot use extraneous information. Therefore, the role of the compliance staff as gatekeeper of information and a clearinghouse for new ideas, solutions to problems and a host of compliance activities is increasingly becoming the linchpin of a successful program. For in-house purposes, the relevant portions of OSH Act, hazard communication, local right-to-know laws, environmental statutes and health codes and other municipal laws should be summarized in a user-friendly way to give people a reasonable background, with hyperlinks to the statutes themselves. The most important part of a useful manual is a well-crafted, practical operating procedure which tells employees what is expected of them.3 In workplaces where the hierarchy can be divided into top management, line management or supervisors, and the hourly worker, unless there is full participation from all of these groups, any health and safety effort will likely fail. Top management must cannot champion the program– providing support and leadership. The supervisors can often “sabotage” what they perceive to be this year’s strategy if it lacks their support, too. They must be convinced that the health and safety strategy is a long-term core value of the company, and that this value will be reflected in all of the decisions relating to production, maintenance, and employee relations decisions. Finally, hourly workers are no different than anyone else, from the standpoint of compliance: a chain is no stronger than its weakest link, and therefore part time or independent workers must be included in all training programs, in order for their efforts to be effective. Interns and apprentices also must be given the opportunity and incentives in order to “internalize” the concepts of the health and safety strategy. Any participant who is assigned to the workplace can feel ownership of the program, preferably from its inception, but certainly as a part of the implementation process. These are the essential ingredients for a successful program.
1:6. Design components of a management system– Selling compliance to obtain and maintain the commitment
Some people say that “commitment” can be measured by a combination of time and money spent on a program. Management’s commitment to the program can be shown by: money expended for compliance; the quality of the materials used in training, the high caliber of the professionals who are brought in as consultants to the program, and the higher echelon’s
2 See Ilise Levy Feitshans, Bringing Health To Work (1997) (discussing in part Voluntary Protection Programs (VPP)).
3 Ilise L Feitshans Bridging the Gap Between Occupational Health and General Compliance: A Portrait of Compliance in Canada” SAFETY AND HEALTH PRACTISIONER, London England 1997.
willingness to participate in the in-house OSHA compliance program activities, enthusiastically and vigorously; followed by action. An ill-funded program will accomplish little despite the best efforts of supervisors and in-house managers who pour out their hearts with dedication to a task. Yet, maintaining commitment requires real work. Probably the most important single factor is the clear and continuous personal commitment of the chief executive. Leadership is required to set an example, to inspire everyone in the organization to obey the law that is the driver behind the program, and prevents “paper programs.”1 One pillar of leadership is encouraging “employee involvement” in the compliance program.
“Employee involvement” includes: employee activities in training regarding the proper handling of toxic or hazardous substances; and outreach to employees who actually confront hazards to ferret out potential problems. Employees are often the ones who really understand problems with machinery or premises. Well-informed employees in the workplace in direct contact with hazardous emissions or other potential hazards are a crucial resource for such information; their insights about actual working conditions in the facilities at the enterprise are invaluable. As discussed in industrial hygiene literature, employee participation and cooperation is pivotal in shaping successful industrial hygiene programs because without the workers’ trust and support for the tasks set forth by the industrial hygienist, there is no chance for launching a successful program.
Which personnel shall have the primary responsibility for compliance?
Except in very small companies, the most effective results can only be obtained if compliance is a senior management responsibility. Since OSHA is a watchdog and there is no shortage of directives and statutory authority pointing to the employer’s primary responsibility for any or all “recognized hazards” as defined under the law, there are few excuses for inattention to a compliance program.Without the power and support of upper management autrhority, it is hard to see how compliance staff can possibly have the detailed knowledge of operations–or the consistent presence-which is needed to ensure a high standard of compliance.
Management responsibility does not diminish the need for, or the role, of good compliance personnel. Compliance staff must be well-educated, dedicated, and have the clout to change internal processes by shutting down dangerous conditions or by changing corporate culture in favor of occupational safety and health awareness. Unless management understands and proactively accepts responsibility for compliance, this is a difficult balance. Staff, who must implement a program comprised of an admixture of organizational wishes and hard law. Industrial hygienists, occupational physicians, occupational health nurses, corporate compliance officers and safety engineers are the front lines for protection of employee health, yet they are
1See Catanzaro & Weinberg, “Answers to Some Frequently Asked Questions On VPP,” 22 Job Safety & Health Q Summer 1994; Feitshans & Bor, Editors-in-Chief, Occupational Safety and Health Law 1995 Supplement Bureau of National Affairs Washington, D.C. 1995; Feitshans & Oliver, “More Than Just a Pretty Program: OSHA Voluntary Protection Programs Improve Compliance by Facing Problems Head-On,” Corp Conduct Quarterly Sept. 1997; Feitshans, “Positive Incentives for Compliance: Balancing New Tools and Their Limits,” 14 Preventive Law Rep No. 3 at 10 (1995); OSHA Safety and Health Program Management Guidelines; Issuance of Voluntary Guidelines [Docket No. C-02] 54 Fed. Reg. 3904 (Jan. 26, 1989); Weinberg, “OSHA Consultation: A Voluntary Approach to Workplace Safety and Health Compliance,” Corp Conduct Quarterly Vol 5 No 2.
unlikely to own the system without strong managerial support., In addition to management commitment, committed compliance staff need real clout and protection from reprisals when investigating delicate situations, in order for the system to continue and so that laws are properly obeyed. This important role embraces overall design (with management input) and consistency of the entire system from research to practice. But,whether the company complies or not inevitably depends on what management does. Managers should know what their people are doing and, thereby exercise their power with reasonable, defensible and responsible control.
Responsibility for specific areas, embedded via custom tailored training about the key hazards and best practices for avoiding unwanted consequences, , and supervision are a normal part of a manager’s duties. Such responsibilities for managers should be written into job descriptions and included in performance appraisals. Ultimately, the enterprise’s commitment will be judged by the strength and consistency of its internal enforcement of compliance programs. Turning a blind eye to breaches by powerful managers, or promoting people guilty of serious breaches, may prove fatal to company commitment and in turn, to any compliance program or its employees.
1:7. Design components of a management system– Embedding compliance
Embedding compliance values into the corporate culture and its infrastructure may be viewed as an eseential step towards constructing and implementing a system of mandatory procedures integrated into operations, designed to ensure that proper compliance with the law is actually achieved to the maximum extent practical. When it works perfectedly, embedded values will also function as a safety valve, preventing the flow of inappropriate concepts from gaining currency throughout the system. Embedding compliance therefore extends beyond operating divisions, or what OSHA calls “process management.” Usually, everyone affected by the system, from the chair-of-the-board down to the custodial staff, must be subject to procedures that are applicable to their particular functions.
Significantly, if the correct values have been embedded into the infrastructure, illegal or irresponsible activites will be prevented by the system itself. This applies not only to manufacturers, chemical plants, steel mills–those businesses that have a greater degree of physical risk for workers–but it does also apply to all other businesses that have an established workplace with key staff. The concept of embedding values into the employer’s infrastructure is not novel or new: a simple example is the United Nations (UN) Millenial Development Goals, (“MDGs”)6 which represent a global internal commitment from management to change the way things are done within the employer’s own infrastructure. The systemic changes regarding reproductive health, access to technology for developing nations and gender equality are expected to be embedded in the future work of the organization, and strategies and programs are required to comply with the UN’s commitment to these fundamental structural values. The MDGs are not “mere add-ons” that one inserts carefully to retrofit existing standards. And the value added improves the ecomonic well being of workers, their employers and their health and their families immeasurably. In order to achieve the goals, also committees of experts must put their heads together to proactively question long standing approaches that have produced the harmful outcomes, targeted by the MDGs. After deliberation regarding these social problems that the UN itself and WHO in particular have determined plague civil society worldwide, it is expected that antiquated or ineffective long standing approaches will be modified. The result, however, will not be “one size fits all” . Instead, UN health activities will embrace these new goals within the framework for
6 United Nations (UN) Millennium Development Goals (“MDGs”, http://www.un.org/millenniumgoals
compliance. This sounds difficult but it is not because this approach is consistent with disability protections that require accommodations for individuals. Taking the extra step analytically to conform to the MDGs is also economically efficient: asking stakeholders and researchers to address the needs of vulnerable populations whose needs may have seemed peripheral before achieves greater political buy-in and will bring forth better data7
Written policies may also be required to withstand scrutiny in a court of law in the event of a violation of OSHA, local health codes, tort litigation, or environmental litigation, and therefore their text should reflect the presence of embedded compliance values. Simply giving staff lectures, without back-up resources or problem-solving workshops in anticipation of hazards that the staff may encounter or without considering the new occupational health effects that the sector of the economy may face is shortsighted. Failing to discuss major issues is leaves too much to chance. The test of a management system therefore, is its real degree of control. There are normal operating procedures which double-check against broken or inadequate design components
1:8. Design components of a management system– Communication
“Communication” is the blood that circulates to turn “management commitment” into “active involvement” under OSHA’s compliance ethos. Communication means frequent, reader-friendly reminders that are to the point, attractive, and brief. Often a few lines in the staff magazine are more effective than a boring lecture. Reporting needs to be regular, thorough and through two streams. First, operating managers need to report up the management line on compliance issues in a frank way that will ensure that problems are dealt with. This is necessary, because the chief operating officer of the division will ultimately be responsible. Copies of all internal reports should automatically be sent to the compliance team. Organizing the data generated by internal communication is best achieved through internal reviews. If these reviews are periodic, planned, announced and have a mechanism for feedback, they can ensure the ongoing benefits of a management system will continue. Of course, any changes to the system need to be determined by seeking input from managers who will implement them. It must always be remembered that items from outside the operating stream, might not work in reality. As a part of the review process, reports from Industrial Hygienists and safety personnel to the corporate counsel and to the compliance team, as well as follow-up reports, should be amplified by the work of outside consultants. The major features of these larger reports should be summarized into a one or two page memo for general distribution. The openness of this general approach is useful in demonstrating the commitment of the enterprise to occupational safety and health programs and reassuring staff that activities exist to support their basic human need need for a cleaner and healthier workplace.
1:9. Design components of a management system– Due diligence
If communication in house is the lifesblood of vibrant corporate compliance program,
7 See: The Work Health and Survivial Project, Stakeholder Comments regarding WHO Guidelines on “Protecting Workers from Potential Risks of Manufactured Nanomaterials” (WHO/NANOH). Ilise L Feitshans on behalf of International Safety Resources Association (ISRA), Fullerton California,, Earth Focus Foundation, Geneva Switzerland, Digital 2000 Productions, Stafford Texas USA,
Donald H. Ewert, IH, VP-Field Services nanoTox, Inc.& Director, Field Services AssuredNano
Dr Gustav Grob and International Sustainable Energy Organization (ISEO) Geneva, Switzerland
then the notion of due diligence is its protective skin. Once the in-house OSHA compliance staff has instructed other staff throughout the enterprise regarding procedures, and that staff has become well-versed in those procedures, and has been supervised, then there might exist a credible defense for any employer who claims that employee misconduct is at the heart of an occupational health hazard, or that harm although forseeable, occurred as a result of acts beyond the employer’s control. This notion of an employer’s defense based on “due diligence” is the essence of effective defense against any claims concerning actual cause of occupational health harms or OSHA violations, because the notion embedded into due diligence is that the employer, acted with prudence and did everything that a reasonable person could to prevent known or anticipated harms. This key to a good defense is often found in other areas of corporate compliance under law, such as antitrust and securities. To obtain this benefit of the doubt, in-house OSHA compliance staff must demonstrate the presence of an ongoing system. The compliance team should include industrial hygienists, medical doctors, occupational health nurses and safety engineers. Smaller enterprises may contract with independent providers for these services. Smaller enterprises will not be held to a lesser standard than larger enterprises; ironically, small size may increase the likelihood that the enterprises’ managers will be found personally accountable.3
1:10. Management System Goals: Preventing accidents
OSHA compliance demonstrating the benefits of preventing accidents goes beyond traditional workers’ compensation notion that “occupational accidents” refers to preventable injury due to unsafe acts or conditions that occur “in the course of employment.” Workplace accidents have several indirect costs, beyond the direct costs for medical expenses, possible bad press and related litigation. Expensive indirect costs, (whether or not quantified) include:
(1) time lost by the injured employee;
(2) time lost by colleagues who may assist the employee or stop work out of curiosity;
(3) time lost by supervisors, foremen or executives who:
i. assist the injured employee;
ii. investigate the cause of the accident;
iii. arrange for replacement;
iv. train the replacement employee; and
v. prepare reports for internal and external records;
(4) possible damage to machinery, tools or office equipment;
(5) lost productivity and concomitant effects upon the injured employee’s deadlines;
(6) costs absorbed by health benefit programs;
(7) possible increases in workers’ compensation insurance premiums;
(8) possible OSHA fines; and
(9) alterations in the employer’s risk pool for health insurance based on changes in injury experience, especially when workers compensation claims or tort liability litigation activities are concerned.
(10) possible injury to co-workers, the general public or independent contractor employees.
3For example, health professionals acting as consultants may provide services as part of their ongoing programs to reduce claims. Trade associations are another potential source for cost-saving group efforts.
(11) Overall costs of the Global disease burden to society” which include lost work for family members engaged in care for the injured worker, lost wages for family members who engage in activities to support the injured worker and opportunity costs associated with lost earning capacity.
Many early OSHA regulations placed undue emphasis on visible, dramatic occupational accidents. Therefore, OSHA was criticized for the attitudes expressed in the President’s Report on Occupational Safety and Health, issued in 1972 and 1974, which focused almost entirely upon “job safety” and so-called “off-the-job” problems potentially affecting worker performance in the face of dangerous tasks. Subsequently, the study of the interaction between occupational accidents and “off the job” safety has evolved into a discussion of “lifestyle” and “wellness issues”, but with a much deeper understanding of the scope of the impact of workplace exposures and a recognition of the profoundly inextricable link between health at work and life “off the job”. Supposedly personal choices about lifestyle issues, such as eating habits and smoking, have become increasingly addressed through employer involvement in health programming at the worksite and “on the job”. Furthermore, the scope of ergonomic issues regarding lifting, seating and related sources of musculo-skeletal strain, is now well accepted as a major source of hidden costs from the economic disease burden. Ergonomics therefore, has become embedded in the fundamental tenets of a sound health and wellness program that saves employers money.
The demise of the old rules is welcomed because their approach offered a simplistic, “visible” form of protection that masked the need to discuss latent, chronic hazards that may cause occupational disease, or expensive long-term disabling injuries, such as back injuries. Employers disliked thie old approach too: they labeled OSHA regulations requiring specific types of ladders, sanitary facilities, work gloves and other protective clothing as “nit-picking” standards, which unduly burdened interstate commerce. Nonetheless, rules for walking surfaces, protective gear, guard rails and machine guarding comprised the vast majority of early OSHA requirements.1 Additionally, safe handling of toxic and hazardous materials at the worksite are an important component of the required employee education and training pursuant to OSHA’s generic regulations for “Hazard Communication,” which have become a model for international regulation of the transfer, storage and safe handling of chemicals, as a part of the Global Harmonisation of Chemical Safety (GHS) under the auspices of the United Nations.
1:11. Management System Goals: Preventing or Reducing occupational disease
Since the time when people chipped stone to fashion tools, occupational diseases threatened public health. Prevention of occupational diseases (the so-called “silent killers”) therefore antedates contemporary efforts to protect occupational health. By the late twentieth century the connection between specific occupations and certain diseases had been codified into “occupational disease lists” in workers’ compensation statutes as well as specialized laws, such as “black lung” benefits for coal miners.1 Many sources consistently point to the many health benefits that can be achieved through medical surveillance, biological monitoring and preventive
129 C.F.R. pt. 1910.
1Merchant, Boehlecke, Taylor & Puckett-Harner, Division of Respiratory Disease Studies Appalachian Laboratory for Occupational Safety and Health NIOSH, U.S. Dep’t of Health and Human Services, Occupational Respiratory Diseases 331-35 (1986).
measures that protect against occupational disease. “[P]revention of occupational disease requires accurate information on the occurrence of occupational disease. Only through a systematic data collection concerning the incidence, prevalence and mortality of the major illnesses and injuries associated with work, can effective programs be developed for occupational disease control.”
1:12. Management System Goals: Preventing toxic exposures:
Exposure to toxic chemicals represents an important public health problem in the U.S. for large and small employers alike because of potential liability as well as potential regulatory violations. Children’s vulnerability to some chemicals requires extra diligence when children are present the work environment, such as day care centers, schools, camps and rural activities on small farms where children help with chores. Adults face risks from contact with large volumes of chemicals and therefore require training and education regarding the proper use, handling and protective gear required for work with toxic chemicals. Labeling is useful only when the underlying standards really identify the type of materials that require specialized handling. For example, corrosives are very different from flammable materials and cannot be treated the same way in the workplace. Targeted programming can troubleshoot the highest risks of injury or death from poison Strategic targeting of hazards has important implications for the workplace, where training and education is required and the effectiveness of the training is presumed, but not easily verified. A surveillance system for occupational disease must have three components–case counting, data evaluation and action.2
1:13. Avoiding liability by “Doing the Right Thing”
The moral and ethical arguments for an effective OSHA compliance program are overwhelmingly persuasive by themselves. The consensus that avoiding workplace accidents and disease has many intangible benefits that cannot be quantified in a cost-benefit analysis has been articulated by Congress in passing the OSH Act, and has been echoed across decades of industrial hygiene literature. Regarding the absence of a cost-benefit analysis, in IUD v API (“the Benzene case2) the U.S. Supreme Court held that the Congress recognized this moral argument when it enacted the OSH Act, because Congress did not include the obligation to conduct a cost-benefit analysis before promulgating occupational safety or health standards pursuant to the OSH Act Section 6(b)(5).
As long ago as the 1990’s, OSHA estimated that , every dollar in direct medical or insurance compensation costs for a workplace injury requires employers to spend an additional five to fifty dollars more on indirect costs6 Indirect costs include those to repair building, tool or equipment damage, to replace damaged products or materials, and to make up for losses from
2Landrigan, Improving Surveillance of Occupational Disease, 79 Am. J. Pub. Health 12 (1989). Citing the World Health Organization’s smallpox surveillance program as a “a splendid model of the utility of surveillance in disease control,” Landrigan continues, “[u]nfortunately, existing programs for surveillance of the major categories of disease in the United States are woefully inadequate. They lag far behind systems of communicable disease surveillance. Also, they lag behind occupational disease surveillance systems in other countries, particularly those in Western Europe.” See also, Henderson, Epidemiology in the Global Eradication of Smallpox, 1 Int’l J. Epidemiology 25-30 (1972).
6 Greenfeld, Management’s Safety and Health Imperative: Eight Essential Steps to Improving the Work Environment 13, The Minerva Institute, Occasional Paper Series (1989).
production delays and interruptions. Even at the rate of these ancient estimates, which must be higher in light of the increased skill demanded by the global economy, it was estimated that an additional one to three dollars in indirect costs will be spent for hiring and training replacements and for time to investigate the incident. OSHA’s figures do not consider the impact of reduced morale among employees, or the indirect costs of employee medical expenses, which have subsequently been the subject of detailed study as part of the “global burden of disease”, which calculates indirect costs for many types of injuries and illness.2
Beyond the scope of OSHA regulations themselves, but always looming as a damaclean sword that threatens the life of any economic enterprise, employers may also be liable under state tort laws for harm to individuals for the effects of unsafe or unhealthy conditions not covered by workers’ compensation. Typically this narrow notion of liability is mischaracterized as workers compensation costs, which are widely believed to be artificially low, both due to the low pay scales imposed by these statutes, and due to mass incentives for underrerporting. Oftentimes, employees are either frustrated by the difficulties in producing evidence or the narrow statutory definitions associated with the many disincentives for applying for workers compensation, but like a gas that m8ust be vented in order for a structure not to explode, these costs do go somewhere. Where the costs go and who covers them as these expenses are diffused is an important question. Not all the hidden costs have been examioned, but the common pool of regular, non-occupational health care is a likely respoitory for masked employer liability for occupational illness and injury. For example, the employer may pay for the employee’s days lost from work through its sick-leave program which it provides as part of its benefits package, because someone unable to work will seek medical care without necessarily seeking workers compensation.This is particularly true for short term illness or illness where lack of awareness of occupational health on the part of the internist or general practicioner physician makes it unlikely that anyone will ask about a link between ill-health, survival issues and the workplace. Earlier anecdotal evidence suggests that compliance programs have additional substantial benefits 5.
Potential liability of enterprises for inadequate occupational safety and health safeguards
2 OSHA further noted, “[B]ecause they frequently involve longer absences, the impact of job-related illnesses can be even greater. Although economic incentives are secondary to human health and safety as motives for safety and health protection, an employer may find it useful to calculate the total (direct and indirect) costs of injuries and illnesses as a means of determining the economic benefits which might be achieved by preventing the injuries and illnesses. In theory, by determining the average cost of an injury and of an illness, the employer can estimate the incremental impact of reducing the rate of injuries and illnesses at the site and therefore the potential economic benefit of such reduction.” OSHA further suggested that: “Some employers may compare their savings or costs in relation to the national average for their industries. … The number of cases which would have occurred if the site rate had been average are “expected cases.” The difference between the expected and the actual cases are “injuries avoided.” By multiplying the number of “injuries avoided” or the number of injuries above the average by the average cost of an injury at the site, the employer can estimate the savings or losses which resulted from the quality of its management of safety protection relative to national performance.
OSHA Safety and Health Program Management Guidelines, 54 Fed. Reg. 3904 to 3916 (Jan. 26, 1989) (henceforth “OSHA Management Guidelines”) This primitive approach revealed startling cost savings for sound occupational health compliance programs, nonetheless.
5Greenfeld, Management’s Safety and Health Imperative: Eight Essential Steps to Improving the Work Environment 11, The Minerva Institute, Occasional Paper Series (1989).
may arise from OSH Act violations, from conditions that could have caused injury or illness, or from conditions that actually caused injury or illness. State right-to-know laws and workers’ compensation statutes and tort law are additional sources of potential liability and claims that, even if unfounded, must be defended through costly litigation. So too, a host of local, national and international laws governing the use of chemical labeling and seeking environmental protection are emeshed in the overlapping jurisdiction with occupational health laws in the USA and internationally. Additionally, concerns about gender equality as raised in the U.S. Supreme Court decision in Johnson Controls suggest that an employer can touch upon harms in ahwide variety of other areas of the law by failing to have a sound compliance approach for occupational health and safety. In this context, the failure to have a strong program risks becoming part of a greater litigation involving back pay, promotion, seniority rights and statutory attorney’s fees under discrimination laws, if it is found that the employer has failed to protect a specific group of workers against for the existence of hazardous conditions that deprive women of equal employment opportunity as a newly emerging area of potential liability.7
1:13 A: Reduced Liability For Discrimination Claims by Persons With Disability
The pathbreaking legislation that protects all people against discrimination based on disability (Americans With Disabilites Act, known as “ADA”) created new rights for employees and applicants, and for employers, new liability. Employers are obligated to pro actively recruit, hire, and promote people with disabilites, even when that means changing the duties in their job description, and to do so while protecting the individual applicant or employee’s confidentiality. Furthermore, employers are responsible for demonstrating that they have educated co workers about disability laws and actively engaged in training to reduce stigma and prejudice against people with disabilities. The failure to do so faces stiff fines and penalties under the federal and state laws in the USA. These penalties may be imposed by the government, or may be required by a court after successful litigation by anyone who has been mistreated and is percieved as disabled under ADA. It is a difficult concept to understand but quite fundamental to accept that it is the perception of stigma and prejudice about disability, and not actual disability itself, that creates an affirmative employer obligation under ADA. Without such open ended requirements that are not limited to proven disability, it would not be possible to protect confidentiality under ADA. Thus, there are cases where healthy people were treated badly with prejudice, just as if they had been disabled, even though they were not ill, and the courts have protected them because the law itself allows protection against prejudice even if the illness is “not manifest”. Furthermore, ADA offers an extremely broad understanding of the concept of disability. Recent case law and the plain language of the statute consider asymptomatic, subclinical and potentially ill people who are otherwise healthy as “disabled” for certain purposes. The definition also embraces all types of disability without regard to causation; even if they have been denied workers’ compensation. It is a violation of the federal law to discriminate against the “disabled” in hiring, placement or on-going access to care and
7 42 U.S.C.A. §1981a(a)(1). “Damages in cases of intentional discrimination in employment (a) Right of Recovery (1) Civil Rights in an action brought by complaining party under section 706 or 717 of the Civil Rights Act of 1964 (42 U.S.C.A. §2000-e-s) against a respondent who engaged in unlawful intentional discrimination … the complaining party may recover compensatory and Punitive damages as allowed in subsection (b) of section 706(a) of the Civil Rights Act .”
accommodations. This is true even if they do not fit a case definition of occupational disability, so long as they have some type of disability. The ADA makes it clear that there are monetary penalties for any violations of laws that result in proven discrimination. This is a more powerful driver than an ethical admonition to be even-handed, and is more likely to place the occupational physician in a conflict of interest not with the patient, but with the physician’s own employer as the medical care provider for the first time could be personally accountable for the employer’s failure to provide accommodation.
1:14. Avoiding liability– Avoiding OSHA enforcement and penalty litigation
OSHA, pursuant to the authority delegated by Congress to the Secretary of Labor, has the authority to inspect places of employment throughout the United States and to levy civil fines for violations and refer cases to the Department of Justice for criminal prosecution. Possible reasons for an OSHA inspection, leading to an enforcement procedure includebut are not limited to:
• A general schedule selection inspection, following OSHA’s internal administrative rationale for targeting particular types of industries or a particular source of occupational illness and disease (i.e., rubber manufacturing, because of the potentially carcinogenic effects of benzene exposure);1
• In response to an employee’s formal written complaint to OSHA;2
• OSHA’s response to an accident involving a serious injury or fatality which requires investigation; or
• As a follow-up inspection after a citation has been issued, to determine whether violations have been abated.
Interestingly, outside observers such as members of the general public have no right to complain or commence a formal proceeding under OSH Act, even though such rights to so-called “Citizen suits” are available under federal laws protecting the environment, which empower individuals to file a claim against alleged polluters if they are aware of a violation of environmental protection laws. The general public holds this right to “citizen suits” without any underlying contract between the people who observe the act of pollution and the employers who create the pollution, but OSH Act has no such parallel principle to prevent harm. Therefore family members of potentially harmed or injured workers are not empowered to speak on behalf of their working family member, even if the family is aware of life threatening conditions or has observed an accident or fatality in the workplace that puts someone in jeopardy. So too, members of the general public who may see problems or witness an accident at a construction site or other public place have no standing to bering a complaint and no capacity to initatie enforcement to prevent harm. This cripples the practical implementation of the law, but also means that the statutory burden on employers to obey the law in case of harm is very clearly a unilateral responsibility. OSH Act requires that employers report serious injuries and deaths to OSHA.3 Failure to report serious injuries or death is a violation. Procedures for determining which incidents constitute a reportable event are discussed in detail in OSHA regulations. Employers
129 U.S.C.A. §657.
229 U.S.C.A. §657.
3Using OSHA’s Form 300 log available from usdol.gov. See 29 U.S.C.A. §657(c)(2);.
are held accountable for all incident reporting. USDOL.gov explains required reporting.
A coherently written safety and health compliance plan in this context,comprised of clear workplace safety and health rules that are actively enforced and enthusiastically supported by the employer, may be accorded great weight when determining whether an OSHA violation exists. For example, it is long standing that compliance, as exhibited by due diligence, can dismiss a claim without forcing the employer to write their own death warrant. An old Occupational Safety and Health Review Commission (OSHRC) decision concerning a fatality in crane-operations relied very healvily upon the existence of an OSHA compliance plan as a critical factor cited by the administrative law judge in his decision to vacate an OSHA citation.4 Although failure to obey an employer’s work rules pursuant to the OSH Act Section 5(b) may not be a capital offense under United States law, dicta in the opinion suggests that employee misconduct, rather than the employer’s failure to fulfill the OSH Act’s mandated requirements for employer responsibility, were the underlying cause of the fatality. This decision could not have been reached, however, without an in-house occupational safety and health compliance program.
In the event that violations are uncovered by an OSHA inspection, OSHA has the authority to issue a citation with fines and an order to abate particular hazards that cause “on-going” violations.5 The Secretary of Labor has the statutory discretion to assess a civil penalty for each violation.6 A copy of relevant citation(s) for each violation must be posted in the worksite at a location that is as near as practicable to the place where the violation occurred. For example, a citation may be posted at the entrance of a restricted area where OSHA’s Permissible Exposure Limits (PEL) have been exceeded. Although OSHA has been criticized because the monetary value OSHA fines are relatively low compared to multi-million dollar fines assessed by other federal regulatory agencies, OSHA has the power to cite the “repeated” violations, and to impose additional daily penalties for “ongoing” violations. Thus, the dollar value of OSHA fines may be quite large in cases involving “repeated” violations over time.7 Even OSHA
4 In that case, the administrative law judge emphasized that the employer had a comprehensive, written safety program which gave instructions to the employee about the equipment; the employer had trained the employee in the use of the equipment that caused the fatality; the employee was working with a contractor whose training and work practices were deemed to be beyond the defendant-employer’s control; and there is an inference that the employee who was killed had not followed the employer’s safety rules. SECRETARY OF LABOR, COMPLAINANT v. JENSEN CONSTRUCTION CO., RESPONDENT, 14 O.S.H. Cas. (BNA) 2022, 1991 O.S.H. Dec. (CCH) P 29196, 1990 WL 257513 (O.S.H.R.C.A.L.J. 1990).
5 29 U.S.C.A. §658; see, e.g., Press Release, OSHA, Failure to Safeguard Workers Against Lead Hazards Results in Nearly $50,000 in OSHA Fines to New Hampshire Foundry (July 11, 2003), available at http://www.osha-slc.gov/pls/oshaweb/owadisp.show_document?p_table= NEWS_RELEASES&p_id=10314. See §4:38 (press release).
629 U.S.C.A. §666.
7USX’s multi-million dollar fine in 1990 made headlines as a groundbreaking punishment apllying the principle of repeated violations, the cumulative effect called “megafines” USX actually paid $2 million of a proposed $4.5 million fine, according to BNA’s Occupational Safety
“megafines” are small compared to civil and criminal penalties under environmental legislation. OSHA’s criminal enforcement authority8 has seldom been used, but state criminal laws may apply to unsafe and unhealthy working conditions, despite threshold issues of preemption discussed below.9 OSHA Fines are Small but Bring Bad Publicity inadequate safeguards1 For example, one foundry’s failure to adequately protect workers against lead and other occupational health and safety hazards has resulted in a total of $49,560 in fines from the U.S. Labor Department’s Occupational Safety and Health Administration. Franklin Non-Ferrous Foundry, Inc., was cited for alleged willful, repeat and serious violations of the Occupational Safety and Health Act following inspections. According to OSHA’s New Hampshire area director, the bulk of the violations concern inadequate safeguards for workers exposed to airborne concentrations of lead. The company was cited for two alleged willful violations, with $28,000 in fines, for failing to monitor airborne lead levels when required and for allowing an employee who had been medically removed from a work area due to lead overexposure to return to the same job before he received the required medical clearance. Four citations for alleged repeat violations, with $14,000 in fines, were issued for exposing employees to excess airborne lead levels and failing to institute controls to reduce the exposure levels, not conducting periodic lead monitoring, allowing lead dust to accumulate on surfaces, and not providing an annual medical exam for a lead-exposed employee. Small fines add up quickly!
1:15. Avoiding liability—Limits on OSHA Jurisdiction, Filled by Requirements for Compliance with state right-to-know laws
OSH Act Section 4(b) and the Tenth Amendment of the United States Constitution leave several important aspects of occupational accident prevention to the respective states.1 Section 4(b) explicitly states that the OSH Act does not preempt state laws. This includes so-called “right-to-know” laws which require dissemination of information and precautionary training for
& Health Rep, underscoring again that SOHA fines are small compared to the punishment exacted by other enforcement agencies for failure to comply with the law. See, OSHA Modifies U.S. Steel Group Facility of Failure to Abate Process $110,445 Fine, 21 OSH Rep (BNA) 1269 (Feb. 26, 1991).
829 U.S.C.A. §666.
9 A total of 13 alleged serious violations were also cited, with $7,560 in fines, encompassing lack of respiratory protection, not using a HEPA vacuum to remove lead dust from work clothing, not conducting annual audiograms for employees exposed to excess noise levels, unmarked exits, lack of eye protection, no procedures and training for workers in “lockout/tag out” measures to avoid energizing machinery under repair or maintenance; lack of machine guarding; and electrical hazards.
1Press Release, OSHA, Failure to Safeguard Workers Against Lead Hazards Results in Nearly §50,000 in OSHA Fines to New Hampshire Foundry (July 11, 2003), at http://www.osha-slc.gov/pls/oshaweb/ owadisp.show_document?p_table=NEWS_RELEASES&p_id=10314 (an excerpt from the press release).
1OSH Act §4(b), 29 U.S.C.A. §653. The Tenth Amendment of the United States Constitution prohibits the Federal Government from acting in areas where power is ““reserved”” to the states.
workers who use or are exposed to hazardous substances,2 following the decision in the AFL-CIO-CLC v. Auchter case,3 but this facet of preemption by the state has been placed into doubt by Gade v. National Solid Waste Management Association.4 This deceptively simple legal requirement places the burden upon employers to educate workers regarding safe handling of dangerous materials and to inform them of possible long-term health effects from workplace exposures. At the same time, disclosure of risks associated with toxic and hazardous substances in the workplace, and training regarding the best practices for safely handling such materials has taken on an international character due to globalization. The USA, within the scope of OSH Act and in collaboration with EPA, CPSC, Homeland Security and the US Department of State has embarked upon complaince with the international legla program entitled Global Harmonisation of Chemical Safety (GHS), which is collaborated through the United Nations systemm with support from a private ly funded multinational organization, called SICAM. Back home in the USA, each state has a different approach to right-to-know with concomitant penalties for violations. The typical framework of a state right-to-know statute requires annual training in the safe handling and use of toxic or hazardous substances and training in first aid, in the event of emergency. Some states require a label listing antidotes in case of acute exposure and chronic health effects, even if the composition of the regulated substance is a trade secret.5
1:16. Avoiding workers’ compensation costs
Critics of the workers’ compensation system complain that it is antiquated and that its benefits are small. Yet, there is no centralized national system for compensating workplace injuries in the USA, and unfortunately, the same criticisms persist in countries where there exists a comprehensive nationwide system. In theory, workers’ compensation statutes provide the funding for care and assistance to injured workers and replace the uncertainties of the tort system with a scheduled system of payment that does not examine the issue of negligence or fault. The delays, underreporting, low payments, and legal disputes when obtaining coverage for medical care under these separate systems are renowned.1 In the USA, each state governs its own program, plus there is a federal program for federal workers, special compensation scheme for specialized sectors of industry such as mining, beryllium workers from the nuclear industry, and
2Feitshans, Hazardous Substances in the Workplace: How Much Does the Employee Have the “Right to Know?,” 1985 Det. C.L. Rev. 697.
3United Steelworkers of America, AFL-CIO-CLC v. Auchter, 763 F.2d 728, 12 O.S.H. Cas. (BNA) 1337, 1984-1985 O.S.H. Dec. (CCH) P 27293, 15 Envtl. L. Rep. 20545 (3d Cir. 1985).
4Gade v. National Solid Wastes Management Ass’n, 505 U.S. 88, 112 S. Ct. 2374, 120 L. Ed. 2d 73, 15 O.S.H. Cas. (BNA) 1673, 1992 O.S.H. Dec. (CCH) P 29709, 22 Envtl. L. Rep. 21073 (1992).
5The question of which substances are covered by law varies in the different states and has been subject to broad interpretations. For example, New Jersey requires that water must be labelled if it is stored in large quantities. Others require special labels that read” C” for carcinogens, “M”for a mutagen and “T” for teratogens.
1Baron, Handling Occupational Disease Cases (1990).
a variety of short-term programs. Technically, one could also add the US Deprtment of Defense Veteran’s programs, but the Veterans’ Administration embraces a whole host of protections including hospitalization and treatment for non-work-related illness and diseases, and therefore is beyond the scope fo this discussion.
Three key elements common to stategovernment based workers’ compensation systems assure a modicum of protection to injured workers:
• absence of “fault” litigation;
• reimbursement of some medical costs; and
• provision of income, albeit low, during the course of disability.
Employers are required by law to satisfy these requirements, directly or through their insurance carriers. First, an injured worker must prove that a given occupational accident occurred “in the course of employment.”2 Under most workers compensation systems “Employment” has been construed to include full-time and part-time employees, but the term has not consistently been applied to independent contractors and consultants, workers who do piece work, migrants, or artists and writers involved in commissioned works for hire. The term “course of employment” may include work off the employers’ premises, but within the scope of agency, work that is either expressly ordered by the employer, such as an unusual but harmful assignment, or implicitly part of the employment contract, such as a waitress who works with harsh cleaning chemicals. In such cases, workers compensation claims focus on the contractual nature of the employment relationship, without regard to fault. An employer may be held liable for the monetary costs of injuries, lost time or rehabilitation for a worker, even if the accident occurred due to unsafe conditions that were the workers’ fault or due to the negligence of a third party subcontractor or another worker.3 These costs are is in addition to the indirect costs of replacement worker training, lost productivity and “down time.” Workers who must travel for their employment provide the classic case where the employers’ obligation to provide protections under workers’ compensation is unclear because of the many other potential sources of harm which remain beyond their employer’s control but may nonetheless occur within the course of their employment. Mindful that workers’ compensation claims concern issues of state laws that are distinct from the federal OSH Act and that are specifically excluded from OSHA jurisdiction under OSHA Section 4, (b) 44 it is nonetheless likely that many workers’ compensation expenses will be dramatically reduced because of the enterprise’s ability to prevent injuries from potential hazards. This is a significant, indirect benefit of well-designed OSHA compliance programs.
1:17. Avoiding liability– Interactive compliance
Meeting new challenges within a flexible compliance structure is especially crucial
2 For a traditional view of workers compensation, see, e.g., The Virginia Workmen’s Compensation Act Annotated (1982) op. cit. at 30, s;§65.1-7. “An accident occurs “in the course of employment” when it takes place within the period of employment, at a place where the employee may reasonably be, and while he (sic) is reasonably fulfilling duties of his employment or engaged in doing something incidental thereto.
3See, e.g., Industrial Commission of Virginia, The Virginia Workmen’s Compensation Act Annotated (1982) &s;§65.1-7, at 31. Voluntary acts that are related to requirements of the employment contract are entitled to compensation.
429 U.S.C.A. §653.
because OSHA’s regulatory mission encourages it to develop broader and more rigorous legal requirements as expanded technology increases human knowledge about the cause and nature of preventable work-related accidents, short-term injuries, long-term disability and occupational disease and work-related deaths. An effective compliance program requires a compliance team, which should be comprised of a vice-president for safety, the general counsel, the industrial hygienist, the occupational physician, the safety engineer, and representatives of the employees with actual “hands-on” experience with the potential hazards and conditions to be ameliorated.1 Two key components of this approach involve ensuring that members of the compliance team have management’s support and that they have the power to request information from managerial staff and rank-and-file employees in a manner that will generate accurate reports. Compliance staff must communicate laterally among team members to exchange vital updates of important information and also be able to participate in information dissemination concerning hazardous conditions, as required by the OSHA Hazard Communication Standard and related international regulations concerning chemical safety and the handling of toxic materials in the workplace.2
The best compliance programs are comprehensive and flexible, so that they can prevent the effects of known hazards and also anticipate new areas for concern or potential problems in proposed changes in working conditions. Such programs also can incorporate plans for meeting those new needs within the structure of an existing program.4 It has often been said in occupational safety and health that “safety comes from the top.”5 Any accident sufficiently serious to cause an employee to miss more than one day of work should be reported to the compliance staff within 24 hours.6 The financial benefits of comprehensive safety and health programs have been well documented. Workplaces safe from hazardous conditions have lower costs due to decreased lost time, absenteeism, worker compensation premiums, etc. [Office of Technology Assessment 1995]. Ergonomics programs have been shown to be cost effective for similar reasons [McKenzie et al. 1985; Lapore et al. 1984]. In addition, ergonomic improvements may result in increased productivity and higher product quality [McKenzie et al. 1985; LaBar 1994; LaBar 1989].
1 Ilise Feitshans Bringing Health to Work (Emalyn Press) the Nuts and Bolts of Compliance Programs, see also video presentation Qatar, 2011 HSE Conference Fleming Gulf Enterprises.
229 C.F.R. §1910.1200; OSHA Hazard Communication Standard. It has been suggested that trade associations could act as facilitators bringing together small enterprises and specialists by pooling information regarding basic compliance issues although specific programs are not widely discussed in the literature.
4 Ilise Feitshans, “Safety Comes From the Top” Workplace Safety and Health Newsletter, National Safe Workplace Institute September, 1990 and quoted in Unmet Needs, The Labor Day Report, 1989 (Staff Member and Chapter Author) National Safe Workplace Institute, September 1989, Chicago, Illinois USA
5 Ilise Feitshans, “Safety Comes from the Top”, 1 Workplace Safety and Health Newsletter, National Safe Workplace Institute (No. 3, Sept. 1989).
6Susan Greenfeld, Management’s Safety and Health Imperative: Eight Essential Steps to Improving the Work Environment, The Minerva Institute, Occasional Paper Series, at 3 (July 1989).
Health and safety audits allow managers to determine whether management directives and policies are implemented by in house staff. Identification of existing and potential health and safety hazards is necessary in order to determine which objectives are appropriate. Identifying employees at risk is crucial to the success of the compliance program and provides opportunities for cost savings. Training and other means of protecting employees at risk can be targeted tobased on their placement within the enterprise, even though the law requires all that staff, regardless of their relatively low risk. Thus, office workers in a storage facility that transports toxic or hazardous substances must be included in hazard communication training because of the clear risk of the storage facility’s dangerous exposures.
Identification of hazards, employees at risk and the sources of the hazards that may affect them is a vital part of compliance programs. Preventive programs using data from such assessments can provide opportunities for considerable cost-saving.7 Monitoring results and evaluating costs provides information required to refine the process, fostering greater improvement in working conditions and further reducing costs. This approach should be continuously repeated in order to achieve continuity in occupational safety and health compliance when recruiting and training new managerial staff and to identify new problems before harms occur. OSHA compliance programs require constant interaction between the many units within a given enterprise. Although this approach may not sound difficult to implement, it is not characteristic of United States business enterprises today.8
1:18. Underscoring the value of a compliance program post 9-11
There is no denying the importance of tragic events that occurred in New York City and at the Pentagon on September 11, 2001. Lives saved are the inevitable benefits reaped from an effective in-house occupational safety and health program when coherent and coordinated responses to crises readily fall into place, regardless of whether the catastrophe is a natural disaster or a crisis in national security. Several important lessons underscore the important role of occupational safety and health programs in emergency response. Lack of exits, clear evacuation orders, fire drills and practice evacuations have long been addressed by effective OSHA compliance programs, and will take on greater importance as society prepares itself to defend against possible future attacks. Second, but equally essential in preventing future injuries, is the ability to troubleshoot by establishing open lines for communication “from the mailroom to the boardroom” and back again.21It is now well known that few people insude the attacked building knew how or where to evacuate safely, and that little ir no attention had been paid to fire drills or similar emergency situation exercises before catastrophe occurred. The lessons learned from this tragedy means that many new threats can be addressed by flexible in-house
7 Susan Greenfeld, Management’s Safety and Health Imperative: Eight Essential Steps to Improving the Work Environment, The Minerva Institute, Occasional Paper Series (July 1989).
8For example, compliance programs in many enterprises tend to be characterized by departmentalization, a lack of study and analysis and an assumption that enterprises and regulators are mortal enemies. Sigler & Murphy, Interactive Corporate Compliance 55-57 (1988).
2See NIOSH procedure for protecting First Responders, NIOSH.gov
corporate compliance OSHA programs. For example, in the case of possible contagion–a sound program will detect irregular patterns of illness or injury and more importantly and effective in-house communication can be the mechanism for dissemination of vital preventive information regarding symptoms and treatment.
1:19. Emergency response and evacuation preparedness
Compliance programs are a vital part of plans that prevent mass injury and death due to a fire or natural disaster.1 Death and injury can be prevented with effective evacuation planning and disaster response training. Thus, the lack of exit stairwells, alternatives to elevators for disabled workers and sufficient structural approaches to evacuation concerns can take a greater toll.
Employees can be trained on disaster planning and emergency response components of existing health and safety programs by:
• using accepted evacuation and lifesaving strategies;
• on-going use of in-house newsletters and intranet communications to warn about potential problems; and
• distributing memos and posting bulletins to remind people about existing emergency procedures.
The catalogue of risks confronted by cleanup workers in the wake of the World Trade Center disaster of September 11, 2001 is well known: “In the months immediately following September 11, tens of thousands of additional responders and volunteers from all over the united States worked tirelessly to retrieve human remains, to recover and clean up the site itself and the streets, residences, and commercial buildings in Lower Manhattan to transport an enormous amount of debris to barge stations located along the west side of Lower Manhattan to receive, handle and in some cases, shift through the debris at Staten Island landfill, and to perform forensic examinations of human remains at the New York City Medical Examiner’s Office.”2
1See Thomas Meehan, The World Trade Center: Does Mega Architecture Work?: An Inquiry into Whether a Building of 110 Stories is Fit for Human Habitation, 43 Horizon (1976) (no. 4). “As someone who has lately (sic) spent a good deal of time looking at the WTC from every possible exterior and interior angle, I’d like to add my voice to those of its harsher critics. I’d say the WTC is an aluminum sided disaster.” 43 Horizon 11 (1976). Meehan goes on to say that, “[f]or those whose offices are in the towers, especially on the upper floors, working in the WTC is radically different from working anywhere else. In the first place, many of them admit to being nagged by a constant fear of fire …” 43 Horizon 13 (1976). Quoting Peter Haight, a vice president of a banking firm on the 94th floor of the North Tower, Meehan noted, “[y]ou see storms approaching from the west and lightning crackling beneath you.” Other upper floor workers have reported sighting helicopters and airplanes flying frighteningly close to the towers.” Therefore, effective workplace safety and health programs focused on evacuation and disaster planning might have saved lives.
2 John Howard, The 9/11 World Trade Center Disaster: Past and Future, Mount Sinai Journal of Medicine 75:65-66 (2008). See also; “Fake guns, bombs and other weapons got past security screeners almost one-fourth of the time at 32 major airports last month ;…. At three airports–Cincinnati, Las Vegas and Jacksonville, Fla.–undercover testers got weapons past security at least half the time, the official said, speaking on condition of anonymity” Jonathan D. Salant, Study: Fake Weapons Pass Screeners, Associated Press (July 1, 2002).
The lessons learned form this experience have implications for preventive planning of emergency services.
1:20. Enhanced national security
Aspects of work that have long been ignored by many writers, such as the role of air travel for business purposes as it impacts occupational health, should acquire greater priority since the events of September 11, 2001. Some of the issues surrounding air travel relate to delays for security purposes that make travel take longer, thus also expanding the duration of the work day when traveling. Other concerns are the security of travel itself, with attendant anxiety that can only increase existing workplace stressors.1 Like many nations, the USA’s federal government has committed to unannounced testing of security screeners in airports. In some enterprises, the issues of work-related stress due to heightened anxiety surrounding business air travel may be addressed by wellness programs or counseling under the auspices of occupational health services. Other facets of the corporate compliance program that can reduce anxiety around these issues include, but are not limited to, disaster planning and emergency response components of existing health and safety programs that can train employees using accepted evacuation and lifesaving strategies; on-going use of in-house newsletters and intranet communications to post warnings about problems and memos and bulletin boards to remind people about existing emergency procedures. Of course, these issues are also an excellent vehicle for joint labor-management communication and coordinated activities, since the issues addressed are beyond the employer’s control but impact employees and higher-level management alike.
1:21. Protecting first responders for oil mspill clean-ups
The 2010 BP oil spill in the Gulf of Mexico jeopardized the marine life and fishing industries of five states, and threatens to pollute key locations for regional recreation and tourism. Additionally, national wildlife preserves such as the Everglades national lands may also be threatened by the oil and its bi-products that may contaminate the region. The economic consequences of the oil spill will be well recorded and discussed in global literature, but few of the commentators will discuss the role of the safety and health of those first responders who have and will clean up the oil. The Gulf Coast Oil Spill will likely have a negative impact on human health throughout the region and perhaps globally. In addition to the effects already seen on animal and marine life, there is the impact upon people who rely upon the waters of the Gulf for their commerce and nutrition pertaining to fishing and the impact upon swimming and tourism.
Like the spill itself, the health crisis created by the destruction of the fishing industry and the threat to a clean touristic environment has blurred the distinctions between agencies within the federal government, between agencies at the state and local or municipal level that ordinarily might resist the assumption of authority by the federal government, and the role of non profit associations who can be helpful in providing information as a clearinghouse without the threat of governmental enforcement or control. Regarding the crisis from the Gulf oil spill that threatens human health as well as the marine environment, the U.S. Department of Health and Human Services’ Centers for Disease Control and Prevention (CDC), working in tandem with the local and state governments of affected Gulf Coast states has developed a plan to track the potential
1See Washington conference on“Work Stress and Health;‘95: Creating Healthier Workplaces”
short-term health effects related to the oil spill in the affected communities.1 Surveillance systems will track changes in the number and severity of illnesses and injuries in a population, in order to alert public health officials in the event of trends in injuries or illness that should trigger further investigation.
The reporting system for these injuries and illnesses requires harmonizing local and municipal health programs throughout the impacted region. The CDC also will conduct surveillance across the five Gulf States for health effects possibly related to the oil spill using national and state-based surveillance systems. These surveillance systems will track symptoms related to the human visual, dermal, respiratory, cardiovascular, gastrointestinal, and neurological systems. Red flags to be regarded carefully as the signal for further study include but are not limited to asthma, cough, chest pain, eye irritation, nausea, and headache. When surveillance systems identify groups of people with these symptoms, state and local public health officials will have the opportunity to investigate whether there is an association between the symptoms and the oil spill.2 This follow-up is important because the same symptoms may arise from a variety of ambient environmental factors, or may be pre-existing conditions that are exacerbated by the oil spill itself. As in the case of the developing art of syndromic surveillance,3 the surveillance will have the two-fold objective of tracking the medical needs of individuals while also searching for patterns of unusual symptoms in the overall population. Another example of new regulatory theories that have come to the fore to battle the spill, but in turn have blurred the distinction between the many voices of authority, involves the federal initiative to include non profit associations as partners within the ambit of the governmental tracking framework. For example, the National Poison Data System (NPDS) is not an official federal database, but it is a vital part of the national clean-up efforts. The CDC has an agreement with the American Association of Poison Control Center’s NPDS to track calls related to the oil spill–including information calls and potential exposures–for 60 Poison Centers (PCs) in all 50 states. This enables CDC to track the number of Poison Center calls. The data are also given to the states for follow up.5 Another
1CDC, Emergency Preparedness and Response, Health Surveillance (2010), available at http://emergency.cdc.gov/gulfoilspill2010/2010gulfoilspill/health_surveillance.asp.
2 CDC, Emergency Preparedness and Response, Health Surveillance (2010), available at http://emergency.cdc.gov/gulfoilspill2010/2010gulfoilspill/health_surveillance.asp.
3 State Surveillance. Alabama, Florida, Louisiana, and Mississippi have created state-based surveillance systems to track occupational or non-occupational exposures that may cause oil spill-related health effects. Together with these states, the CDC is collecting data from sources such as emergency departments, urgent care facilities, and poison centers for evaluation and sharing the data with them. Since June 9, 2010, states had reported a few complaints of respiratory symptoms, nausea, and headache in people who had possible oil exposures, but preliminary surveillance reveals no trends of public health concern related to the oil spill.
5 CDC, Emergency Preparedness and Response, Health Surveillance (2010), available at http://emergency.cdc.gov/gulfoilspill2010/2010gulfoilspill/health_surveillance.asp; American Association of National Poison Data System, available at www.aapcc.org/dnn/NewsandEvents/PoisonCentersandtheGulfOilSpill/tabid/472/Default.aspx.
example of the solidification of governmental resources at all levels is BioSense, a national program that conducts quick surveillance of health information, and enables public health officials to track changes in a population’s health status through access to existing data from healthcare organizations across the country. Biosense includes 86 coastal healthcare facilities in the five Gulf states (Alabama, Florida, Louisiana, Mississippi, and Texas). Within this network, staff watch for specific syndromes (groupings of signs and symptoms) that could be related to the oil spill. Reviews of BioSense data reportedly have not yet found illnesses and injuries that would require further public health investigation in the short-term, but the system is in place for monitoring conditions and well-being in the impacted population for the long-term.6
Accomplishing clean up and follow-up surveillance tasks involved massive coordination of health activities, including: disseminating information about health risks in order to protect workers, volunteers and residents (Coast Guard, OSHA, FDA, NOAA, CDC, SAMSHA, State and Local Health Departments); training workers and volunteers to maximize their safety during response (NIH/NIEHS, OSHA); monitoring Exposures of Workers and the Public (Coast Guard, EPA, OSHA, CDC/NCEH, CDC/NIOSH) also, Monitoring Population Health (CDC, State and Local Health Departments, FDA, SAMSHA). In addition, providing Medical Care (ASPR/NDMS, State and Local Health Departments) and using the techniques of syndromic surveillance, and preparing for long term follow-up (NIH, CDC, State and Local Health Departments).4
1:22. Protecting first responders — roster of deepwater horizon response workers
Relying strongly on its federal mandate to conduct research that for decades has made it a trusted resource for data, NIOSH developed a voluntary roster of response workers. This roster, not generated by employers, required pro-active recruitment of the deepwater horizon workers on site.1 The survey completed by each worker, had a covering note from the Coast Guard officer who leads the unified Command of U.S. government and BP, encouraging their participation in without reprisal.2 As stated in the letter, The Unified Command and BP support the roster and the
6CDC, Emergency Preparedness and Response, Health Surveillance (2010), available at http://emergency.cdc.gov/gulfoilspill2010/2010gulfoilspill/health_surveillance.asp.
4John Howard, M.D. National Institute for Occupational Safety and Health Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, Assessing the Human Health Effects of the Gulf of Mexico Oil Spill: An Institute of Medicine Workshop (June 22, 2010).
1CDC, Workplace Safety & Health Topics, NIOSH Voluntary Roster of Deepwater Horizon Response Workers. cdc.gov/niosh/topics/oilspillresponse/workerroster.html.
2 Coming together in time of emergency has catalyzed positive interactions among several key agencies. For example, the CDC has reviewed the results of EPA’s sampling efforts in response to the oil spill in the Gulf of Mexico. CDC used chemicals detected in the EPA’s samples in order to determine whether these pollutants may cause health problems in the community, leading an unprecedented joint effort by OSHA and NIOSH, EPA, the Coast Guard, the
goal of identifying all workers, including volunteers, involved in all response and cleanup activities. Since NIOSH lacks enforcement powers possessed by its sister agency, OSHA, NIOSH can encourage people to participate voluntarily without fear of agency reprisal or enforcement activities. Workers have the opportunity to be rostered during training and at established staging areas (locations to which trained workers report for duty each day) in Louisiana, Mississippi, Alabama, and Florida. NIOSH also is rostering response workers online through a secure web site. NIOSH has provided the secure link to multiple federal agencies and BP, and has asked them to refer workers to the web site to complete the rostering form electronically. This trusted role allows NIOSH staff to record the medical condition of people who have participated in cleanup activities and also will enable the agency to contact such people in the future, when better data becomes available regarding the long-term health effects of not merely the oil spill, but exposure to detergents, heat stress, and contaminants in the water related to the clean- up activities. The roster survey provides a mechanism to contact them about possible work-related symptoms of illness or injury, as needed.
Rising to the occasion, OSHA and NIOSH have overcome a long history of sibling-like rivalry, working together instead in marvelous synergy. Although the effort has raised concerns among critics, displeasing a few in the interest of many is not new for OSHA as a regulatory agency. A total of 31,235 workers were rostered by NIOSH and the Unified command as of July 2, 2010:3 This is consistent with the trend to bring together occupational health and safety regulatory authorities within communities, as evinced by the Green Jobs initiative by NIOSH, OSHA and EPA and the Global Harmonization of Chemical Safety (GHS) involving OSHA, NIOSH EPA, CPSC and additional agencies coordinated by the U.S. Department of State for tracking both the immediate and long term health risks..
1:23. Employer obligations to mitigate presence of second-hand smoke
According to the leading text, Law in Practice of Public Health,1 “recognition of tobacco as a health hazard” is one of the top 10 developments in public health for the twentieth century, as described by the Centers for Disease Control and Prevention. It should be no surprise, therefore, that an emerging literature about smoking and the destructive effects of second-hand smoke (formerly called “passive smoking”) brings new information about protection of legal rights for people passively exposed to tobacco’s unwanted harm.
Emerging literature discusses the rights of non-smokers to breathe clean air at work and in their home environment.2 As a result, condominium owners, along with other residents of multi-unit housing, are becoming increasingly concerned about drifting smoke from adjacent
department of Homeland Security and many more state, local and federal agencies.
3Source is NIOSH web site at http://www.cdc.gov/niosh/topics/oilspillresponse.
1Law in Practice of Public Health (Richard A Goodman, ed.).
2See Ilise L Feitshans, Is Second Hand Smoke Something We Should Just Blow Off?, Human Ecologist (Summer, 2007); Susan Schoenmarklin, Review of A Law Synopsis by the Tobacco Control Legal Consortium: Legal Options for Condominium Owners Exposed to Secondhand Smoke (December, 2006).
units. The online publication entitled, Review of A Law Synopsis by the Tobacco Control Legal Consortium December 2006: Legal Options for Condominium Owners Exposed to Secondhand Smoke, provides an overview of some basic tenets of federal discrimination law for people with disabilities and real property grounds for torts. The working assumption of the review notes that second-hand smoke is especially hazardous for those who suffer from cardiovascular diseases, asthma or other lung conditions. According to the review, second-hand smoke can increase the risk of heart disease in nonsmokers by as much as 60%; children exposed to second-hand smoke in the home are twice as likely to develop and suffer persistently from asthma. Second-hand smoke also causes acute lower- and upper-level respiratory tract conditions, acute middle ear conditions, and elevated levels of Sudden Infant Death Syndrome, in addition to a myriad long-term adverse health effects. According to the review, heightened awareness of the hazards of secondhand smoke, affected persons have attempted to address the problem using litigation. The review notes “Although current cases are not always in favor of nonsmokers, the trend is on their side, as society gains a better understanding of secondhand smoke and the hazards it poses in the home.” The notion that second-hand smoke might be dangerous is relatively new in occupational health. In previous generations, before smoking in public was widely banned, the notion that OSHA or other regulatory agencies should become involved in preventing passive smoking or the hazardous adverse effects of second-hand smoke was subject to ridicule. By contrast, such matters are taken quite seriously in the 21st Century and therefore also represent an invaluable object lesson in the availability for cultural change to alter social values as a public health tool.3
A new review pinpoints the potential rights of non-smoker residents in condominium complexes, but fails to address the rights of people in offices in those same complexes who are also workers, “[T]he dangers of secondhand smoke are not imaginary, and the risks to health of excessive exposure are being increasingly recognized in court. . . . Whether or not recovery has previously been allowed in tort for secondhand smoke injuries is not dispositive. The inherent capacity of the common law for growth and change is its most significant feature. Its development has been determined by the social needs of the community which it serves. It is constantly expanding and developing in keeping with advancing civilization and the new conditions and progress of society ….” Without explaining the analogy between offices and multi-unit dwellings, the review does note that “The California Division of Occupational Safety and Health reported that “tobacco smoke travels from its point of generation in a building to all other areas of the building [moving] … through light fixtures, through ceiling crawl spaces, and into and out of doorways.” Exposure also occurs in common patios, decks, balconies, exhaust systems, hallways, underground parking garages, and recreational facilities. Even in buildings with good ventilation, exposure to secondhand smoke has been shown to occur.”
The review correctly outlines some basic steps for potential litigants, followed by a
3American Lung Association, State Legislated Actions on Tobacco Issues: 2005, available at http://slati.lungusa.org/reports/SLATI_05.pdf; American Society of Heating, Refrigerating, and Air Conditioning Engineers, Inc., Ventilation for Acceptable Indoor Air Quality (2003), ashrae.org/content/ASHRAE/ASHRAE/ArticleAltFormat/20085156_7.pdf. Americans for Nonsmokers’ Rights Foundation, Municipalities with Local 100% Smokefree Laws (2006), available at http://www.no-smoke.org/pdf/100ordlisttabs.pdf; Armand Arabian, Condos, Cats, and CC&Rs Invasion of the Castle Common, Pepp. L. Rev. 1 (1995).
synopsis of basic tort law that may or may not be applied by courts reviewing cases of complaints about second-hand smoke in multi-unit dwellings. As in the case of any contemplated cause of action, preliminary “Steps in Addressing Secondhand Smoke in Condominiums” require that aggrieved condominium owners should become informed by becoming conversant in the dangers of secondhand smoke and to make available relevant written materials on the subject.4 The review also suggests that aggrieved owners should also do their best to document the problem, where the secondhand smoke originates, and how it affects them from as described by a medical professional. Another tool in this arsenal is the policies governing the condominium complex, which may well embrace office tenants. Since condominium owners typically agree to abide by a set of covenants, conditions and restrictions (“CCRs”) that define the rights and obligations of owners, including use of common areas, maintenance responsibilities, restrictions on the use of individual units and more. In addition, condominium boards can adopt rules that provide detailed guidance on issues not fully described in the CCRs, such as rules for using recreational facilities and some states have laws governing smoking in common areas of condos. Most CCRs contain a “nuisance clause” that prohibits owners or their guests from engaging in any activity that interferes with another owner’s peace and well-being, sufficient enough to cause proven substantial impairment to health. 5 In most cases, however, it would be necessary to rule out other sources of second-hand smoke as a cause of the harmful effects, but the review does not discuss how one would diminish the importance of smoke exposures at work or in the general society, where smoking, although regulated, remains a legal activity under law.6
1:24. Flexible programs as a tool for swift effective response
In addition to the lifesaving benefits of in-house compliance programs when planning an emergency response, effective programs can fold new issues, such as those raised by
4Office of Fair Housing, Fair Housing and Equal Opportunity, U.S. Department of Housing and Urban Development (2006) available at http://www.hud.gov/offices/fheo/ (last visited Sept. 1, 2006); Peter H. Whincup, et. al., Passive Smoking and Risk Of Coronary Heart Disease and Stroke: Prospective Study With Cotinine Measurement, British Medical Journal, Vol. 29 (June 2000); Smoke-Free Environments Law Project, Environmental Tobacco Smoke In Apartments (2006), available at http://www.tcsg.org/sfelp/apartment.htm (last visited Sept. 1, 2006).
5 Smoke-Free Environments Law Project, MISmoke-Free Apartment (2006), available at http://www.mismokefreeapartment.org (last visited Sept. 1, 2006). U.S. Department of Health and Human Services, The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General (2006), surgeongeneral.gov/library/secondhandsmoke/; U.S. Department of Health and Human Services, Women and Smoking: A Report of the Surgeon General (2001), available at http://www.surgeongeneral.gov/library/womenandtobacco/. U.S. Fire Administration, Behavioral Mitigation of Smoking Fires Through Strategies Based on Statistical Analysis (May 2006) usfa.dhs.gov/downloads/pdf/publications/fa-02-08.pdf.
6Cliff Douglas, Smoke-Free Environments Law Project, The Federal Fair Housing Act and the Protection of Persons who are Disabled by Secondhand Smoke in Most Private and Public Housing (2002), available at http://www.tcsg.org/sfelp/fha_01.pdf; Johnathan Samet, Risk Assessment and Child Health, Pediatrics, Vol. 11, 952-56 (April 200); Smoke-Free Environments Law Project, Environmental Tobacco Smoke In Condominiums 2006), http://www.tcsg.org/sfelp/condos.htm (last visited Sept. 1, 2006).
bioterrorism or the potential to spread contagious disease into existing workplace safety plans. Best practices can communicate effectively all relevant company-wide standards and procedures “in a practical manner” that can be understood by staff throughout the business. Effective in-house compliance training involves more than the transfer of information to willing recipients. It is also about motivating employees to follow the rules. Even taking into account a number of transgressions that can be attributed to ignorance, the truly serious violations that reach the newspapers and incur multi-million dollar fines are typically the result of deliberate wrongdoing1; often such incidents are red flags for other troublesome behavior that is out of compliance with the laws governing the enterprise.
1:24 A: Establishing Effective Training Sessions
Seeking advice from education professionals is a necessary step in establishing an effective training session. Training is also a skill that requires study and practice. Whether the training activity is oral presentations, producing videos, or creating computer-based multimedia, there is a need for multi-sensory approaches that will reach a broad range of audiences. The need for variety in the training program must be balanced against time required for substantive information. An effort should be made to make the training program interesting and to appeal to employees of different ethnic backgrounds, education or even disabilities such as hearing impairments, language barriers, or learning disabilities.
In-house compliance programs reflect corporate culture. Companies should try different methods and techniques, to see which work best. On-site group training out in the field locations where employees do their daily jobs, is an essential part of training and compliance. The time, money and effort involved sends a strong message to employees. Equally important, compliance professionals from the headquarters attain stronger oversight of compliance program components, including the training program contents. This gives insight to what is working in the program, and which aspects of the program require greater support. One year training might involve a mix of techniques–perhaps a video, a short lecture, and a role-playing exercise. Alternatively, computer-based training may meet objectives. Trainers should test out what is effective in their company, and what works best with different groups within the company.2
Training should build rapport within the compliance group and should also address any concerns or hostility regarding regulations that may be perceived as onerous or intrusive in relation to daily practice in the workplace. It is also useful to start a training presentation with an
1Ilise Feitshans, The Corporate Compliance Extravaganza: Corporate Compliance Featured in Three Continuing Legal Education Programs” Metropolitan Corporate Counsel Aug. 1996; Reprinted in 5 Corporate Conduct Quarterly 1 1996 at 8 and Preventive Law Reporter, Winter, 1996. Corporate Compliance Programs: An Effective Shield Against Civil Penalties with Brenton Saunders and Joseph E. Murphy BNA HEALTHCARE FRAUD REPORTER March 1997; Preventing Corporate Liability for Occupational Safety and Health Chapter 9, BNA/ACCA Compliance Manual, Preventing Corporate Liability BNA Wash. D.C. 1996
“Of Carrots, Sticks and Good Corporate Citizens: The United States Sentencing Commission Symposium” Corporate Conduct Quarterly, Rutgers University Spring 1996, Positive Incentives for Compliance: Balancing New Tools and Their Limits” Preventive Law Rep, Fall 1995
2See Timothy C. Mazur, How to Make Compliance Training Work, 3 Corp. Conduct Q. 17 (1994), for further explanation of training techniques.
“ice-breaker” exercise to start group members talking to each other. A well-prepared presentation, delivered in a concise, catchy, and memorable style similar to a legislative briefing on a proposed bill, can provide a strong foundation for learning the key compliance themes. Role-playing allows students to experience the area of risk involved in the training. Participants may play the role of an errant employee, a demanding boss, an inspector, or a corrupt third party, to internalize the collective understanding of the rules by applying key learning objectives.
Computer-based Training
Technology exists to use computer-based training, but placing boring text on a computer screen is no more effective than boring books or presenters. Grey scrolls of endless text are not as meaningful as user-friendly formats that make it easier for information to be retained and thus applied after training has been completed. CD-ROM interactive software, designed for compliance training, can record when each student has successfully completed a training module, enables students to go back and forth through text and images when a concept was not understood, and can use sound and color to make multi-sensory messages that are memorably attractive. Commercial videos or training films establish concrete evidence that an important compliance message was effectively and consistently delivered to every one of the dozens of groups that were trained at company locations. Commercial programs offer the double-edged disadvantage that replies to questions are not customized and cannot explore in detail employee concerns, but indisputably can be made interesting, colorful and act out the real-world consequences of violations. Customized videos are especially useful when developing a company’s own code of conduct, with its own conflicts-of-interest and workplace safety and health rules, or if fine and abatement aspects of citations only apply to one or a few worksites.
Software-based training enables employees to complete training at their own pace and the without travel time and expenses for the instructor or students. In addition, the training can be easily updated. OSHA’s Safety and Health Program Management Guidelines (OSHA Management Guidelines) set forth the blueprint for interactive occupational safety and health compliance for modern enterprises.3 The keys to this form of compliance involve management’s written commitment to compliance, along with the allocation of resources towards creating and sustaining a vibrant in-house occupational safety and health compliance team. This part of the manual explores preliminary steps, such as developing in-house procedures for occupational safety and health reporting and recordkeeping, following OSHA’s recordkeeping guidelines. The fundamental steps for creating a compliance team are also discussed.
1:25. Addressing outbreaks of disease
Another important benefit of effective occupational safety and health training programs is flexibility. With a sound compliance program available as a tool for emergency planning, it is far simpler to plug the new components into place than to construct an entirely new entity in order to meet foreseeable (although not necessarily preventable) emergencies. Once the fundamental components of the compliance program are in place and have been used regularly, it is relatively easy to add specific components that address strategies to prevent or arrest bioterrorism in response to a national emergency. Flexible programs easily address these new concerns with an on-going basic program for pathogen control. Monkeypox and Severe Acute Respiratory Syndrome (SARS) are biological concerns that have become issues in workplace safety and
3OSHA Safety and Health Program Management Guidelines, 54 Fed. Reg. 3904 to 3916 (1989) (henceforth OSHA Management Guidelines).
health.1 Additional concerns include West Nile virus, smallpox vaccination program policy issues, a variety of other diseases,2 and anthrax. Similar issues for the containment of possible employee-to-employee exposure were first raised in the public occupational health forum in relation to HIV/AIDS. Acceptable approaches to the challenges raised by the presence or potential transmission of a previously unidentified syndrome or disease are found in OSHA’s standards regulating exposure to bloodborne pathogens. In addition, NIOSH/CDC has universal precautions regarding the handling of body fluids to prevent occupational transmission of pathogens in health care settings.3 The Centers for Disease Control and Prevention (CDC) Web site is an excellent resource for information on diseases, updates, and travel alert additions and removals which impact the occupational safety and health of travelling employees.4
SARS
Approximately 29 countries reported a total of 8,442 probable SARS cases to the WHO from the period of November 1, 2002 to July 2, 2003.12 Noted for an unusually high fatality rate for the duration of disease, there were 812 deaths (with a case-fatality proportion: 9.6%). In the United States, a total of 419 SARS cases were reported from “42 states and Puerto Rico, with 346 (83%) cases classified for investigation purposes as suspect SARS and 73 (17%) as probable SARS (more severe illnesses characterized by the presence of pneumonia or acute respiratory distress syndrome).”13 In a massive effort that reflects galvanized coordination of governments at state, federal and international levels, the CDC continues to work with state and local health
1See, e.g., the Centers for Disease Control and Prevention (CDC) and OSHA Web sites, which provide information on these and other topics of interest. CDC, Emergency Preparedness & Response, available at http://www.bt.cdc.gov/; OSHA, Emergency Preparedness–Biological, available at http://www.osha.gov/SLTC/emergencypreparedness/biological_sub.html; OSHA, Safety and Health Topics: Health Care Facilities, available at http://www.osha.gov/SLTC/healthcarefacilities/index.html. (which provides a link for workplace precautions against the West Nile Virus and a map showing state-by-state distribution of animal and human cases of West Nile Virus).
2Including hantaviruses, which are usually transmitted to humans from the dried droppings, urine, or saliva of mice and rats living in the wild. Four hantaviruses are known to cause hantavirus pulmonary syndrome (HPS) in the United States. See OSHA, Safety and Health Topics: Hantavirus, available at http://www.osha-slc.gov/SLTC/hantavirus/index.html (revised June 24, 2003) (covering Recognition, Evaluation, Control, Compliance, and Training).
3See OSHA bloodborne pathogen rule 29 CFR 1910.
4CDC, SARS Information for Travelers, cdc.gov/ncidod/sars/travel.htm.
12CDC, Morbidity and Mortality Weekly Report, Update: Severe Acute Respiratory Syndrome–United States, 2003 (July 4, 2003), available at http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5226a4.htm.
13CDC, Morbidity and Mortality Weekly Report, Update: Severe Acute Respiratory Syndrome–United States, 2003 (July 4, 2003) cdc.gov/mmwr/preview/mmwrhtml/mm5226a4.htm.
departments, the World Health Organization (WHO), and other partners to investigate cases of severe acute respiratory syndrome (SARS). In a remarkable example of international collaboration to hastily compile accurate and feasible medical protocols for detection and treatment of SARS cases, the CDC, WHO, and a variety of other partners have created a system for serologic testing (blood tests).
Smallpox Preparedness
Smallpox, polio, and a host of other diseases that once made people tremble whenever that disease was mentioned had waned in importance in the late 20th century. Recently, however, fear of bioterrorism has brought these ancient killers back to the forefront of concern among in-house occupational health compliance programs and occupational health services. The concept that unexpected or rare strains of virus or disease could be an effective weapon in the hands of an enemy has been a major concern among emergency planning and disaster relief specialists for many years,14 even though it is only since 2001 that such concerns have made front page news. In particular, the World Health Organization (WHO) and several universities discussed these issues with a view to swtrategizing response mechanisms in the event of a deliberate release of biological agents. World Health Assembly (WHA) resolutions address governmental responsibility to control known samples of disease strains, and also to cooperate in the event of their use or natural spread.15 Resolutions WHA 18.38, adopted by the Eighteenth World Health Assembly in 1965, and WHA 11.54 which was adopted by the Eleventh World Health Assembly were the first in a long series of resolutions designed to promote the eradication of smallpox disease worldwide, and to deal with the question of whether to store samples for use in vaccines and study, and if so the methods and protocols to be employed when safeguarding these biological agents for future study. A global vaccination program officially eliminated naturally occurring smallpox from the world by 1980, and since then vaccination programs have been stopped. Quarantine is required to halt an outbreak, along with a mass vaccination campaign, according to D.A. Henderson (who ran the WHO’s smallpox eradication campaign and founding Director, Center for Civilian Biodefense Studies at Johns Hopkins University). CDC issued smallpox vaccine recommendations in the event of bioterrorism in February, 2001.16 Preventive vaccination17 is one example of key components that, when in place, facilitate a swift response.
14Association of American Medical Colleges (AAMC), Preparedness, available at http://www.aamc.org/preparedness/start.htm; AAMC, Training Future Physicians About Weapons of Mass Destruction: Report of the Expert Panel on Bioterrorism Education for Medical Students, available at http://www.aamc.org/newsroom/bioterrorism/bioterrorismrec.pdf.
15WHO, Smallpox Eradication Programme, WHA Res. 18.38, 18th World Health Assembly (1965); WHO, Smallpox Eradication, WHA Res. 11.54, 11th World Health Assembly (1958). The text of both resolutions are available on the WHO Web site at http://policy.who.int/cgi-bin/om_isapi.dll?softpage=Policy42.
16Smallpox Vaccine Recommendations–USA: Update USA, ProMED mail (Feb. 27, 2001) (a mail program of the International Society for Infectious Diseases; original source Times of India 25 Feb. 2001) (source on file with author).
17See Susan J. Landers, Smallpox Vaccine Hazards Dictate Cautious Approach, AMNews (Aug. 19, 2002), available at http://www.ama-assn.org/sci-pubs/amnews/pick_02/hlsb0819.htm
CDC expressed concern about the availability of smallpox vaccines in the event of an outbreak in the general population,18 which could leave whole populations vulnerable if a virus is released.
Syndromic Surveillance
Monkeypox, smallpox, SARS, (severe acute respiratory syndrome), polio, anthrax and a variety of other diseases can be weapons of bioterrorism or may occur naturally in a given population. The effect of an outbreak of these or similar disease agents upon an unprepared population can be devastating, in either scenario. In-house occupational health compliance programs therefore must be prepared to confront the possibility of these and other diseases in the workplace as a source of occupational transmission or in order to assist the government agencies with the process of monitoring the overall population to track the incidence, prevalence, and natural history of epidemics from sudden outbreaks of disease. Employers are a likely resource for information for public health agencies in the event of a sudden epidemic because they keep records of sickness and absence, and by law, must keep records of injuries and illnesses in the workplace, under state laws and under OSH Act regulations.21 For this reason, scientists and leaders in medical informatics have gathered to develop a methodology for capturing data early in an epidemic, regardless of whether it occurs as a result of bioterrorism or naturally. The methodology for observing behavior and determining the presence of a new epidemic is called “syndromic surveillance.”22 Syndromic surveillance provides an excellent example of preventive strategies that can utilize a strong in-house compliance program once it is in place. In theory too, the mechanisms for data collection could be reversed, so that public officials could, if necessary, have an excellent pathway to get the word out in the event that there is a massive need for an early warning system. Although hospitals and other health care providers would be involved in the development of baseline data, it is also clear that any employer with a large working population could become an integral part of a response system.
1:26. Addressing outbreaks of disease– OSHA’s anthrax risk reduction matrix
To help employers determine appropriate work practices and precautions, OSHA has divided workplaces and work operations into three risk zones, according to the likelihood of contamination with anthrax spores and employee exposure to them.1 These zones are called the green zone, the yellow zone, and the red zone.
• Green Zone: workplaces where contamination with anthrax spores is unlikely.
(discussing the dangers and risks of transmission after vaccination and the hazards of immunization).
18CDC Policy on Unused Smallpox Vaccine bt.cdc.gov/agent/smallpox/vaccination/unusedvaccinepolicy.asp.
21See OSHA Recording and Reporting Occupational Injuries and Illnesses, 29 C.F.R. §1904;
22See Centers for Disease Control, U.S. Dep’t of Health and Human Services, Syndromic Surveillance: an Applied Approach to Outbreak Detection, cdc.gov/EPO/dphsi/syndromic.htm.
1OSHA, Anthrax eTool: Protecting the Worksite Against Terrorism, Anthrax Risk Reduction Matrix, www.osha.gov/SLTC/etools/anthrax/risk_eval.html (last visited Nov. 7, 2006).
• Yellow Zone: workplaces where contamination with anthrax spores is possible.
• Red Zone: workplaces where public health or law enforcement authorities have stated that contamination with anthrax spores has been confirmed or is strongly suspected.
Employers should consider the factors listed in OSHA’s checklist along with their knowledge of their own workplace, and current information about the anthrax threat from law enforcement organizations and public health departments, to determine the zone that best describes their workplace.2 For each zone, there is additional online information about protective measures.3
Checklist for Preventing Occupational Exposure to Bioagents
OSHA’s matrix is intended to help employers understand how to assess the risk of exposure to anthrax spores in their workplaces and to make the necessary decisions to successfully protect their workers from this exposure, but it is applicable for other bioagents too. The level of risk in any particular workplace is based upon factors such as:
• current patterns of workplaces contaminated with spores;
• the likelihood of the workplace being a target for Bacillus anthracis contamination;
• the proximity of a workplace to areas known to be contaminated with spores;
• the likelihood of the workplace receiving mail or other items from a contaminated facility;
• any information provided by law enforcement or public health officials about the workplace’s risk of receiving contaminated items;
• the amount of mail the workplace receives;
• the type of workplace–for example, a post office, bulk mail center, or public or private mail room where cross-contamination might be possible;
• the potential that workplace operations and tasks could result in exposure if contaminated mail is received;
• the use of high speed mail handling equipment, or other processes that might aerosolize anthrax spores during processing; or
• any other information or analysis that would indicate the workplace might be contaminated with anthrax spores.4
1:27. Addressing outbreaks of disease– National syndromic surveillance conference
“Syndromic surveillance”1 represents the collective wisdom of public health practitioners,
2OSHA, What Should I Do if I have a Credible Anthrax Threat at My Worksite, available at http://www.osha.gov/SLTC/etools/anthrax/initial_actions.html (last visited Nov. 7, 2006).
3OSHA, Anthrax eTool: Protecting the Worksite Against Terrorism, Anthrax Risk Reduction Matrix, available at http://www.osha.gov/SLTC/etools/anthrax/risk_eval.html (last visited Nov. 7, 2006).
4OSHA, Making Informed Decisions, osha.gov/dep/anthrax/matrix/decisions.html (last visited Apr. 18, 2005).
1See International Society for Disease Surveillance, at http://www.syndromic.org (included on the web site is information from past conferences); Centers for Disease Control, U.S. Dep’t of Health and Human Services, Syndromic Surveillance: an Applied Approach to Outbreak
academics, federal and military representatives regarding challenges in creating systems for the routine detection of aberrations in electronically collected non-diagnostic data for outbreak detection. The ability of public health officials to obtain timely, comprehensive assessments of community health threats is constrained by traditional passive notifiable disease surveillance systems that emphasize reporting of critical events by healthcare providers and institutions directly to public health departments. Public health officials could greatly benefit from the huge amounts of electronic data that are already flowing between providers and payers of health care throughout the country and the employers that pay for those services. For this reason, the CDC challenged the healthcare industry to find evidence of known outbreaks in existing databases that were not created specifically for public health uses. In response, several companies raced to develop data management systems to try to detect local, regional, and national outbreaks.
Vendors from private industry have demonstrated advances that have been made in the field of aberration detection, data collection, or technological infrastructure for data transfer and transformation targeted at hospitals or state and local departments of public health. Near real-time daily diagnosis data from physician office visits and near real-time pharmacy prescription drug data, capture of real-time clinical and demographic information in ambulances and emergency departments, surveillance data elements for injuries, infectious diseases and other bioterrorist threats that are collected as part of “usual” clinical data collection process are also a resource for syndromic surveillance. Relevant presenting symptoms and signs, physical examination details, ordered tests, procedures and discharge diagnoses can be filtered “real time” and sent to health departments or federal public health authorities as may be required or under exigent circumstances.
One goal of such systems for data collection is to ensure that the surveillance data collection process has been incorporated into the usual work practices of ambulance attendants, emergency nurses, and emergency physicians. This helps to ensure the comprehensive collection of valid, relevant, and sensible information for real-time, ongoing surveillance. Supplementing traditional reporting systems with external event data is not new to the public sector. National security intelligence agencies use complementary human and signal intelligence approaches to detect and monitor threats. As public health surveillance is increasingly woven into the fabric of national security, it, too, can benefit from expanded, complementary, non-traditional monitoring approaches that exploit the continuing growth of standardized electronic healthcare data.
1:28. Addressing outbreaks of disease– Legal preparedness
Coordination of services across state lines, job descriptions, and disciplines in the planning of emergency response is an area of emerging importance.1 The shape of the compliance team, as well as its jurisdiction, may be altered in emergency circumstances. The issue of legal preparedness during emergencies must also be addressed, especially in determining the procedures involved in quarantine that will require participation by employers as a part of a greater state or national emergency response. Can judges be required to personally see the defendant in times of public health crisis such as an outbreak of an airborne agent for
Detection, available at http://www.cdc.gov/EPO/dphsi/syndromic.htm.
1See Centers for Disease Control and Prevention, U.S. Dep’t of Health and Human Services, Emergency Preparedness & Response: Preparation and Planning: Preparedness for Healthcare Facilities, available at http://www.bt.cdc.gov/planning/#healthcare (last visited Nov. 7, 2006).
bioterrorism? If not, can trials be held from a remote location without the defendant present? Plans were discussed for “mass quarantine” to be managed much like the class actions in toxic torts, with only one set of facts studied in detail by the court and then applied to a large population of people. The courts might conduct trials of people who violated the quarantine from remote locations in such contexts, and also might have pleadings or administrative orders prepared in advance of the outbreak. For example, “benchbooks” are looseleaf notebooks that provide guidance to judges informally, without the official imprimateur of a government agency or oversight authority. Benchbooks contain sample pleadings for the arrest, search or detention of individuals who are suspected of having come in contact with a biohazardous agent, such as anthrax or other bioagents or any other lethal virus. Compliance tasks within emergency response programs may also require credentialing of physicians and health professionals from other states who are accidentally present during the crisis, and who thereby may treat symptoms or diseases outside the practitioner’s area of expertise. Prudent emergency planning will equip medical staff with the training and analytical tools to ask the right questions when confronted with a new or novel public health situation.2
1:29. Discrimination as a threat to public health
The notion that “Discrimination” has recently been emerging in literature with new benchmarks for measuring the impact of discrimination on personal well-being and population. According to researchers in Sweden, a threat to public health report presents the results of a major population survey which indicates that the incidence of discrimination is prevalent, takes various forms in society, and is correlated with gender, age, country of origin, disabilities and sexual orientation.1 According to this survey, there are very strong links between discrimination and mental ill-health. According to a qualitative study presented in the report, people have a wide range of views on the discrimination concept. There is a great need for the formulation of reliable questions to measure the incidence of discrimination, but this is also a complex matter. According to the report, efforts to counter discrimination also entail efforts to improve public health. As a result, it is essential to arrive at satisfactory methods for investigating and monitoring discrimination in society if effective measures are to be taken to counter discrimination. The Swedish government document begins the development of a quantitative approach to discrimination; Measuring health and discrimination;2 using data from the national
2
See Centers for Disease Control and Prevention, Public Health Law Resources, Presentations, available at http://www.phppo.cdc.gov/od/phlp/resources.asp (last visited Apr. 13, 2005).
1See National Institute of Public Health (FHI) 48 (2006) (Sweden), available at http://www.fhi.se/shop/material_pdf/r200622_diskrimination_eng.pdf.
2See Isik Uurla, et al., Working in the Margins Women’s Experiences of Stress and Occupational Health Problems in Part-time and Casual Retail Jobs, [Journal Article. Research Support, Non-U.S. Gov’t] Women & Health. 41(1):87-107, 2005. UI: 16048870. Women workers dominate the labor market of part-time and casual jobs in Canada and other industrialized countries, particularly in the retail trade and consumer services sector. However, research into the occupational health consequences of part-time and casual jobs for this large group of women workers is still in its early stages. Emerging evidence suggests that part-time and casual jobs contribute to stress and result in health problems for women. To learn about the impact of part-
public health survey, results of the qualitative survey, and then Countering discrimination to improve public health. This corroborates research findings from the United States which were discussed at a major conference at the National Institutes of Health in October 2006. Recent surveys indicate persons with physical and mental disabilities are joining the workforce in large numbers.3 This positive trend should also be a signal to occupational health researchers to include workers with disabilities in their study samples.
1:30. Hard science becomes hard law: Increasing application of the public health model to 21st century OSH programming
Once upon a time there was a great body of law with vast dormant powers. That law, the police power in public health–has been quietly used by administrators and policymakers alike as a tool for protecting the public health with little fanfare and great humility.1 One consequence of
time and casual jobs on women’s experiences of stress and their resulting physical and emotional health, we conducted interviews and focus groups with occupational health and safety union representatives and female workers in retail and consumer services. Results show that stress is a major occupational health problem for these women, due to the working conditions in part-time and casual jobs, the psychosocial work environment, and the gendered work environment in the retail trade and consumer services. Stress from part-time and casual jobs results in repetitive strain injuries, migraine headaches, and feelings of low self-esteem, low motivation, and job dissatisfaction for women. The disconcerting implication of our research is that part-time and casual employment comes at a cost for some women.
3Young workers are traditionally considered at higher risk due to inexperience. This, compounded with the higher percentage of openly disabled workers in the younger cohort of the working population may require rethinking many traditional training programs and the methods used to measure the effectiveness of training and prevention programs. Vulnerable populations:
2. West C. de Castro AB. Fitzgerald ST. The youth work force: unique occupational health considerations and challenges. [Review] [29 refs] [Comparative Study. Journal Article. Review] AAOHN Journal. 53(7):297-305, 2005 Jul. UI: 16097103 During the past decade, the characteristics and number of adolescent workers has changed little. Several studies were conducted during this time documenting the patterns, scope, and effect of work among young individuals in the United States. Part-time employment may benefit youth by imparting positive work values, reinforcing the importance of academic skills for future career success, providing a better understanding of the workplace, increasing contact with adults, and building character. Negative aspects of youth employment include threats to completion of developmental tasks and education, injury, toxic exposure, and illness. The enactment of regulations and resulting change in the nature of youth employment has contributed to a substantial decrease in youth-related occupational fatality and injury. However, youth workers continue to suffer fatal and nonfatal occupational injuries with most injuries occurring in the retail industry. Efforts should be made to develop innovative interventions tailored to young workers that focus on surveillance, advocacy, education, and research to decrease workplace injury and illness. [References: 29]
1See Ilise Feitshans, New England Journal of Medicine, Invited Review of Law in Public Health Practice Second Edition Edited by Richard A Goodman Richard E. Hoffman, Wilfredo Lopez, Gene W Matthews, Mark A Rothstein and Karen L Foster (2007) (Review by I.L. Feitshans on May 31, 2007).
the expanded popular awareness of public health law following pandemics, such as AIDS and the successful containment of SARS, and environmental emergencies such as the tsunami in Asia, storm damage in Lousiana and Texas in 2005, and large earthquakes such as in Szechuan, China in 2008, resulted in an international legal movement that aggressively redefined the role between states, municipalities, and nations using accepted principles of law to implement public health principles. The excuse for such jurisprudential activity was the need to put order over chaos during emergencies, but it soon became evident that the best way to prevent emergencies, following public health principles, is to implement incremental use of preventive strategies. Empirical evidence supports the notion that long-term ambient prevention is highly cost-effective in reducing the economic harm from emergency health problems, and also that such strategies are very effective in promoting a higher quality of life by ensuring the population’s well-being.
The rule of law for public health therefore has begun to evolve from the emergency response that heralded the beginning of the 21st century, into a deeper quest for new laws–the proposition that around the world, across cultures, and in every generation, public health law is a vibrant requisite of survival–not only for individuals, but all civilization. The World Health Organization (WHO) has taken this change in the role of law and the rule of law quite seriously.2 The next two or three decades of health and labor laws may distill these complex concepts into one clear statement of principles regarding implementation. A great challenge for labor jurisprudence lies ahead,3 therefore, defining the issues of concern to workers and their employers as well as the society at large. Despite tiresome diatribes in ethics-based discussion of the immorality, amorality or moral hazard imperative for safety and health standards on a worldwide basis, international labor law remains remarkably silent regarding rights to privacy for workers, rights to information for employers, enterprises and staff, and the implication of incorrect genetic information or inappropriate testing that has been bottomed on fallacious working assumptions but has nonetheless been used to make employment decisions. The dearth of international labor standards allows a wild west approach to reign in the area of genetic testing, rights of domestic workers (which will be addressed in the International Labour Conference of the International Labor Organization in 2010), and may also be the case for the immediate future regarding the workplace safety questions of protenomics and nanotechnology. Left unexplored by law and regulations, the gap in the law not only harms individual workers but may even cost employers large sums of money if they rely inappropriately upon unproven new
2Allison L. Greenspan, James M. Hughes, David L. Heymann, Geuml; Rodier, 13 Global Public Health Security Policy Review (no. 10) (2007) (“Compared with the previous regulations, adopted in 1969…, IHR (2005) expands the scope of internationally reportable diseases and events, provides criteria for identifying novel epidemic events, and specifies conditions for involvement of the international community in outbreak responses. The revision includes the following 5 substantive changes.”).
3Ilise L. Feitshans, Seminaire: Responsabilite; Societale des Entreprises & Regulations: Quel role pour les juristes? (Oct. 9, 2007) (Geneva, Switzerland; Invited Paper Applicability of Public Health Principles to the Implementation of ILO Norms and Related Non-ILO International Standards).
technologies which turn out to be wrong by happenstance.
By contrast, the notion of individual choice, although an important tool for the implementation under public health principles, has less importance to public health practitioners and thus a diminished use under public health law. Public health programs are predicated on the study of behavior in populations. And implementation strategies, therefore, designed to prevent harm to mass populations, rely on systemic responses to troublesome questions. Individuals, who may be subject to interventions, are not the starting point of the analysis as they are under law. The great debate: whether individuals accept risks voluntarily or are compelled to do so by circumstances has long plagued every facet of regulation and negotiation under labor law. This is inherent in the existing legal models, which rely on individual choice and individual control of one’s destiny as a fundamental working assumption for many core values, ranging from personal decisions, such as abortion and whether one can refuse medical care to abstract concepts such as choice about one’s working conditions or profession, including the choices one makes for which one may be judged with culpability under criminal law. This notion of individual choice leading to individual consequences is a thread that runs through most systems of law. Determination that the consequences, whether known or should have been known, intended or inevitable are either fair or unjust, forms the heart of juridical analysis of the human condition, whether in the workplace or elsewhere. The rationale for such activity is also linked to preventive principles taught in public health schools from the first day of class:
Investment in these elements will strengthen not only global public health security but also the infrastructure needed to help broaden access to healthcare services and improve individual health outcomes, which would help break the cycles of poverty and political instability and thus contribute to national economic development and achievement of the Millennium Development Goals.
The adoption of the new regulations ended a 10-year process of revision.
The revised regulations reflect a growing understanding that the best way to prevent the global spread of diseases is to detect and contain them while they are still local. WHO member states have obligations to rapidly assess and alert the global community about potential disease threats as well as to prevent and control the spread of disease inside and beyond their borders.8
According to WHO,
Because weak national public health capabilities undermine efforts to strengthen global public health security, IHR (2005) imposes substantial responsibilities on countries to improve public health capacity and infrastructure. However, despite the broad new goals included in IHR (2005), improvements in global public health security will depend on what member states are actually able to do. Success will rely on the capacity and performance of national public health systems, anchored by strong national public health institutes (NPHIs).
WHO has fostered the creation under its legal authority of the innovative approach that
under IHR (2005) is the requirement for member states to designate ‘national IHR focal points’ as the operational link for notification and reporting to WHO and for WHO to name corresponding ‘IHR contact
8“Compared with the previous regulations, adopted in 1969, IHR (2005) expands the scope of internationally reportable diseases and events, provides criteria for identifying novel epidemic events, and specifies conditions for involvement of the international community in outbreak responses. The revision includes the following 5 substantive changes.” Gunal Rodier, Allison L. Greenspan, James M. Hughes, and David L. Heymann, Global Public Health Security, 13 Policy Review (No. 10) (Oct. 2007) findarticles.com/p/articles/mi_m0GVK/is_10_13/ai_n21053588.
points.’ Effective communication between these two organizational entities will be central to the rapid management of a possible public health emergency of international concern. IHR focal points, or their designees, are required by IHR (2005) to be accessible at all times.
1:31. Nanotechnology– The future of regulation protecting the safety and health of workers using Nanotechnology
Nanotechnology is the new hot topic on science–every aspect of science, engineering, and daily life will be impacted by nanotechnology applications, either directly, or indirectly. Just like the Human Genome Initiative (HGI) a multi-billion dollar transnational competition in “Big Science” in the 1990s, was designed to research and develop sequencing all the genes that serve as the blueprint for human development and growth, and inevitably revolutionize human understanding of agriculture, medicine, inheritance and the secrets of life itself on the planet earth, nanotechnology holds a bold generational promise for new intellectual property and its application to oncological medicine, nuclear non/proliferation verification, industrial processes, food processing and consumer goods. Despite its remarkably broad ambitions, HGI achieved, on time, a remarkably high percentage of its stated goals.
Two decades later, it is predicted that nanotechnology will be a multi-trillion dollar adventure into “Big Science” that will in its own right reinvent or revolutionize almost every industrial process: from food processing, or uranium enrichment (for nuclear weapons) to coatings on paints and consumer use of cosmetics and sunblock. Indeed, the crude first and second generation of nanotechnology is already being applied in many improbable places, and is equally often purported to have been applied in situations where nanotechnology does not yet exist, as a “selling point” to glamorize mundane consumer products from sheets and pillows to specialized foods. Section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 654), often referred to as the General Duty Clause, requires employers to “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.” According to OSHA Section 5(a)(2) requires employers to “comply with occupational safety and health standards” promulgated under OSH Act8, these standards may apply when employees are exposed to nanomaterials:
 1904, Recording and reporting occupational injuries and illness
 1910.132, Personal protective equipment, general requirements
 1910.133, Eye and face protection
 1910.134, Respiratory protection
 1910.138, Hand protection
 1910.141, Sanitation
 1910.1200, Hazard communication
 1910.1450, Occupational exposure to hazardous chemicals in laboratories
 Certain substance-specific standards (e.g., 1910.1027, Cadmium)
1:32. Nanotechnology– CDC funding
In May 2009, the Centers for Disease Control, including the National Institute for Occupational Safety and Health (NIOSH) were granted special funding to further investigate the potential risks and methods for prevention of risks from the industrial and commercial use of synthetic nanoparticles. Federal funding for five million dollars for an initial effort is projected to grow to an interagency effort of 30 million dollars in the next years. Nanotechnology techniques
8 osha.gov, search « nanotechnology »
are expected to represent a multi-trillion dollar slice of the economic pie before the year 2020.
1:33. Economic crisis: Integrating saving money with saving lives
Sound occupational heath programs that implement the best strategies are the grease for the machinery of powerful economic engines. Without the information we provide through occupational heath programs no employer can survive because accidents and disease are not simply expensive but wasteful. According to a 2008 RAND Study, there is clear evidence that firms that voluntarily and conscientiously administer safety and health programs achieve reductions in injuries and illnesses. The studies of mandatory safety and health programs and injury and illness reduction are less clear and confounded by factors that render their conclusions uncertain. We cannot afford waste in this economy. The fat to be trimmed, however is not the same as the grease for the wheels and machinery that makes smooth commerce.”1 Twenty-first century occupational health management systems can save the life of marginal employers by preventing the costly accidents and obvious hazards that can disrupt, if not bankrupt, any employer who is ill prepared for the financial crisis, regardless of whether the employer is large or small. This is possible because regulatory agencies and research centers hold more information: better quality statistical data, long term epidemiological information, sound industrial hygiene practices codified into the laws, and applied principles of industrial hygiene and occupational medicine that can prevent expensive injuries, illness and the disruptions of fatal accidents at work. “The global financial crisis that began in 2008 is the latest is a serious of over-exuberance-based financial bubbles that have expanded and burst since at least the 18th century. Like the Great Depression in 1929, the war that followed where a share of global economic power shifted from Europe to the United States, and like the OPEC Crisis of the 1970s where a share of global economic power shifted from petroleum using to petroleum-producing countries, the Financial Services Crisis of 2008 is one in which the increased demand for petroleum and other globally finite resources by hitherto relatively poor and dependent countries.”2 These changes will impact the delivery of consultative assistance to employers and the overall economic climate for occupational health management systems. According to Dr. John Howard, it is very possible that companies that have focused on sustainable characteristics like emphasizing long-term business strategies, not just short-term goals, strong corporate governance of workforce health and productivity, and sound risk-management practices for occupational and environmental health and safety outperformed their peers by 15% during the current financial crisis. 3 NIOSH, OSHA and the many types of professional and trade associations that work with them in several different capacities are the best conduits for information dissemination and knowledge sharing to achieve these goals of promoting commitment to sustainability and long term goals throughout the difficult financial times. The
1See Speech, Health at Work: A Basic Human Right Brought to daily life by the ILO Encyclopaedia (Mar. 18, 2009); “Moving to Sky” American Society of Safety Engineers (ASSE) MEC Conference as discussed in Kuwait times, KOC to Join United Nations SAFEWORK in COS Centre (May 12, 2009). Coordinator of the ILO Encyclopaedia, Public remarks.
2John Howard, OSHA Consultation Grantees Annual Meeting, The Times They Are A Changin’ Westin Hotel, San Diego, California (Apr. 28, 2009).
3John Howard, OSHA Consultation Grantees Annual Meeting, The Times They Are A Changin’ Westin Hotel, San Diego, California (Apr. 28, 2009) (citing ““Green Winners: The Performance of Sustainability-Focused Companies in the Financial Crisis).
many social partners that can support these efforts through publicity, outreach and knowledge sharing include trade associations and professional societies as well as government. These extensive resources hold a fund of knowledge that can provide the expertise that is a lifeline for marginal employers who otherwise would not have this data because obtaining that information on the market might be prohibitively expensive. Access to best practices about occupational health management therefore can be pivotal: Life or death for employers, especially in the informal sectors. Unlike ancestors in previous generations–the 21st century has the tools to for capacity building and to engage in meaningful prevention programs that can save the life of marginal employers by preventing costly avoidable liability.
1:34. Precarious employment brings attendant health hazards
The rise of precarious employment–work that has no explicit or implicit promise of long-term stability leading to promotions, seniority or chance of developing pension rights, places a burden on the safety and health community to confront employers with clear and careful analysis of the negative effects of precarious employment on professionals. Stress, reduced time for vacations, economic uncertainty and the threat of losing a job all place obstacles in the way of smooth completion of tasks and therefore face create new hazards that were only superficially explored in the twentieth century. Additionally, the increased use of precarious employment as a form of entry level and high level hiring means that people throughout the field of occupational safety and health must expand the accepted vision about who fits into the category of the precariously employed in order to meet the demands on the workforce and the need for expertise to address the effects of these issues. By contrast, the U.S.’s current jurisdictionally limited occupational safety and health governmental structure may leave the vast majority of precariously employed workers unprotected. These formerly “non-standard” arrangements of employment may be riskier than those we are comfortable calling “standard,” but much remains to be studied. Given the unexpected growth of this form of employment, however, in the 21st century, most workers may soon be engaged in non-standard employment arrangements and thus must be prepared for the attendant hazards with sound methods for preventing negative effects of an unstable work environment.
1:35. OSHA and NIOSH collaboration: “Green jobs: are they safe?”
In unprecedented co-operation between OSHA and the EPA, NIOSH hosted the workshop: “Making Green Jobs Safe: Integrating Occupational Safety and Health into Green and Sustainability” on December 14-16, 2009 in Washington, DC. This initiative was developed as part of the Prevention through Design (PtD) initiative.1 Under the interagency framework developed for this and other purposes, NIOSH and its partners hope to further stimulate awareness, provide guidance, and address occupational safety and health issues associated with green jobs and sustainability efforts. The Making Green Jobs Safe Workshop also formally included stakeholder comments into its reports and findings, in order to refine the OSHA and NIOSH outline for research priorities and activities. “Green jobs are good jobs only when they are safe jobs, according to Assistant Secretary of Labor for OSHA David Michaels, speaking at
1David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, NIOSH Going Green Workshop, Making Green Jobs Safe: Integrating Occupational Safety & Health into Green and Sustainability (Dec. 16, 2009), osha.gov/pls/oshaweb/owadisp.show_document?p_table=SPEECHES&p_id=2119.
the NIOSH Green and Safe Jobs Workshop December 16, 2009.
1:36. Labor migration becomes a NIOSH priority
In an issue of the AIHA journal, Dr. John Howard, Director of NIOSH outlined the many emerging concerns for migration policy that impact the occupational safety and health of many populations, even if they have stable work as a part of the mainstream population. This is consistent with findings from international organizations.1 For example, according to Patrick Taran of the ILO, a “rights based approach” to migrants requires ten key lines of action as a basis for prioritizing work of public service and the unions that represent public service workers.2 The ILO estimates that some 105 million of the total 214 million people living outside their countries of birth or citizenship in 2010 are economically active, engaged in the world of work.3 In Western European countries, the foreign-born proportion of the work force is 10% or more, nearly 15% in Ireland, 40% in Luxembourg4 and 25% in Switzerland. Salient characteristics of changes in work include increased precariousness of employment, increased informal work and economic activity, and deteriorating conditions at work. Deregulation–the reduction in application of labor standards as well as market and financial controls–occurs in the context of huge competitive pressures on wages and conditions of work.
1:37. Overview of Occupational Safety and Health Act (OSH Act, USA)
OSH Act was passed with the express purpose “[T]o provide safe and healthful employment and places of employment for every working man and woman in the Nation … by providing medical criteria which will assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his (sic) work experience.”3
The Occupational Safety and Health Act (OSH Act) went into effect in early 1971. Signed into law by President Richard M. Nixon, the OSH Act sought to create a coherent national network of a previous worn patchwork of state and federal laws governing safety issues, workplace practices and occupational health. OSH Act has often been called the “Employees’
1Patrick Taran, Migration, Globalization and Protection: A Perspective for Public Service in Defense of Human Rights and Dignity, Keynote address at the Public Service International Conference On Public Services and Migration (Bari, Italy) (Mar. 9, 2010).
2ILO, Towards a Rights Based Approach to Labour Migration Geneva Switzerland (2010).
3European Union, Employment Report 2008 European Union DG Employment (2009).
4Ilise L. Feitshans, Poster for the Nanomaterials and Worker Health: Occupational Health Surveillance, Exposure Registries, and Epidemiological Research conference to be held in Keystone, CO (July 21-21, 2010), available at http://www.cdc.gov/niosh/topics/nanotech/keystone2010/registration.html.
3OSH Act §2(b), 29 U.S.C.A. §651.
Bill of Rights,” because of its requirements regarding safety and health protections, information dissemination and education about workplace hazards and potential sources of harm. At the time, the field of industrial hygiene and the perceived scope of OSHA’s mandate embraced a narrow segment of regulatory rulemaking, enforcement and administrative activities that are considered commonplace among contemporary occupational safety and health laws. The Courts of Appeals in general, and the U.S. Supreme Court in particular, have typically taken an expansive view of these general protections in the OSH Act. From the first case, Atlas Roofing v. OSHRC,4 the U.S. Supreme Court has viewed the Congressional purpose in the OSH Act as painted with broad but deliberate strokes of the legislative pen. In Atlas Roofing, the Court noted:
After extensive investigation, Congress concluded, in 1970, that work-related deaths and injuries had become a “drastic” national problem. Finding the existing state statutory remedies as well as state common-law actions for negligence and wrongful death to be inadequate to protect the employee population from death and injury due to unsafe working conditions, Congress enacted the Occupational Safety and Health Act of 1970. The Act created a new statutory duty to avoid maintaining unsafe or unhealthy working conditions, and empowers the Secretary of Labor to promulgate health and safety standards.5
OSH Act’s conceptual matrix reflected the nation’s desire for new legislation in areas of science that had not previously been touched by the law. Many commentaries on the history of occupational health suggest that the OSH Act was conceived also as a response to building on the success of the Mine Safety and Health Act (MSHA) of the year before. Major accidents, such as one mining disaster that killed over 100 miners, led to the passage of MSHA. But many observers have astutely recognized that MSHA’s passage was the result of the confluence of several political forces which the deaths following the mine disaster merely brought to a head. In the same heated political climate of the turmoil surrounding the war in Vietnam and social protests about race and the future of American society, concern about toxins resulted in the creation of several environmental protection laws.
The OSH Act was written and passed in this vibrant and unique social context. There had been bills for occupational safety and health protection since the 1950s, the most notable offered by former Vice President Hubert Humphrey when he was a Senator. The law that was eventually signed by President Richard M. Nixon was significantly weaker on labor issues than the initial Humphrey drafts two decades earlier, but it had much stronger federal powers. In addition, it offered an agency, The National Institute of Occupational Safety and Health (NIOSH), to research occupational health issues1 and an independent reviewing agency, The
4Atlas Roofing Co., Inc. v. Occupational Safety and Health Review Commission, U.S. Dept. of Labor, 518 F.2d 990, 3 O.S.H. Cas. (BNA) 1490, 1975-1976 O.S.H. Dec. (CCH) P 20002 (5th Cir. 1975), judgment aff’d, 430 U.S. 442, 97 S. Ct. 1261, 51 L. Ed. 2d 464, 5 O.S.H. Cas. (BNA) 1105, 1977-1978 O.S.H. Dec. (CCH) P 21615 (1977).
5Atlas Roofing Co., Inc. v. Occupational Safety and Health Review Commission, U.S. Dept. of Labor, 518 F.2d 990, 3 O.S.H. Cas. (BNA) 1490, 1975-1976 O.S.H. Dec. (CCH) P 20002 (5th Cir. 1975), judgment aff’d, 430 U.S. 442, 97 S. Ct. 1261, 51 L. Ed. 2d 464, 5 O.S.H. Cas. (BNA) 1105, 1977-1978 O.S.H. Dec. (CCH) P 21615 (1977).
1See the National Institute of Occupational Safety and Health (NIOSH) web site, available at
Occupational Safety and Health Review Commission (OSHRC), which was outside the traditional court system that, in theory, could be infused with special scientific expertise needed to evaluate health issues.2
Significantly, major terms used in this statute, such as “occupation,” “safety” and “health” are not defined. The law also does not provide for individual or private rights of action, other than the formalized complaint process that can only be pursued through an agenda at the discretion of the Secretary of Labor, or in cases of criminal violations that are referred out by the Secretary of Labor, the U.S. Department of Justice. Unlike the EPA and related health agencies, there are no mechanisms for criminal enforcement or so-called “citizen suits,” although there are no express limits on the subject matter of jurisdiction because of the elastic clause regarding the prevention of “recognized hazards” that forms the essential core of the statute.
1:38 OSH Act (USA) General Purpose
The general purpose of OSH Act, “to preserve our Nation’s human resources and to ensure safe and healthy working conditions for every man and woman” repeats themes that are recorded throughout OSH Act’s Legislative History.6 Although wary of the needs of small business, opponents stated: “The fact is that many employers–particularly smaller ones–simply cannot make the necessary investment in health and safety and survive competitively.”7 OSH Act
http://www.cdc.gov/niosh/homepage.html.
2See the Occupational Safety and Health Review Commission (OSHRC) web site, available at http://www.oshrc.gov/. Digital 2000 Productions, “OSHA 35 Still Alive!” (Stafford Texas USA 2006) discusses the question of legislative history with key experts and opinion leaders, “What would the world be like if there had been no OSH Act”. Trainigprofessionals.com, Ilise Feitshans Executive Producer, Don Brown and Staff.
6Mr. Karth: “Every Factory, mill and office in this country could well post a cautionary sign next to its front entrance: “Warning Working May Be Hazardous to Your Health.” Rapidly changing technology has been introducing novel and gravely serious threats to the health and safety of our employed men and women.” See U.S. Congress 92nd Congress, first session, Committee Print: Legislative History of the Occupational Safety and Health Act of 1970 (S.2193, PL–-91-596). Prepared by the Sub-Committee on Labor of the Committee on Labor and Public Welfare United States Senate June 1971 at 1048. As noted by one Senator: “The real fight here is to keep from having federal jurisdiction over industrial safety … It is not new. It has been going on for so many years … During the days of slavery no idea was even considered that bordered upon making any kind of reforms in working conditions … One of the demands of free labor has been conditions of work that allow many men and women to work within some measure of safety; in being able to do their job without fear of being maimed for life or having to be deprived of their livelihood.” See U.S. Congress 92nd Congress, first session, Committee Print: Legislative History of the Occupational Safety and Health Act of 1970 (S.2193, PL-91-596) Prepared by the Sub-Committee on Labor of the Committee on Labor and Public Welfare United States Senate June 1971 at 1028.
7See U.S. Congress 92nd Congress, first session, Committee Print: Legislative History of the Occupational Safety and Health Act of 1970 (S.2193, PL-91-596). Prepared by the Sub-
is rooted in the Interstate Commerce Clause of the U.S. Constitution.8
Policy concerns discussed in the legislative history appear prescient in retrospect, having predicted many of the U.S. Supreme Court battles that befell OSHA in the early years of the agency. Marshall v. Barlow’s challenged the agency’s ability to undertake warrantless or “surprise” inspections; so-called employee misconduct has been a question at many citation and penalty hearings and of course the notion of employer “partnerships” with government for OSHA compliance programs has been the heart of the controversy surrounding Voluntary Protection Programs (VPP) and CCP programs following the VPP’s successful model.
1:38. A. Definitions under the act
The purpose of the Occupational Safety and Health Act of 1970 is to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions ….”1 The OSH Act applies to “employment performed in a workplace” in the United States.2 Every covered employer has a duty to furnish to each of its employees “employment and a place of employment which is free from recognized hazards.”3
1:38. OSH Act (USA) Promises “Employment free from recognized hazards”
The heart of the OSH Act and the keystone of its enforcement is the “General Duties” clause under the OSH Act Section 5(a)(1):
Each employer–(1) shall furnish to each of his [sic] employees employment and a place of employment that are free from recognized hazards that are causing or likely to cause death or serious physical harm to his [sic] employees; (2) shall comply with occupational safety and health standards promulgated under this Act.
Some people, including key managerial personnel, might not recognize a “recognized
Committee on Labor of the Committee on Labor and Public Welfare United States Senate June 1971 at 144.
8The Senate Sub-Committee on Labor of the Committee on Labor and Public Welfare in its report stated:
This bill [which was later passed as OSH Act] disregards constitutional due process; puts unreasonable power and authority in the hands of inspectors, many of whom might be incompetent or easily influenced; gives only vague guidelines on what is expected although penal in nature; and gives ultimate penal authority to the Secretary of Labor …. most accidents result from unsafe acts by employees, not by unsafe equipment … And to permit an employee representative to inspect the plant to determine what is safe as far as equipment and working conditions would put an undue burden on the employer. The only way to achieve real improvement is through cooperative action involving employers and employees–with assistance and guidance from government … I urge all my colleagues to vote against [the bill that became OSH Act] it is seriously lacking from the standpoint of fairness and due process … and potentially highly disruptive to labor-management relations.” See U.S. Congress 92nd Congress, first session, Committee Print: Legislative History of the Occupational Safety and Health Act of 1970 (S.2193, PL-91-596). Prepared by the Sub-Committee on Labor of the Committee on Labor and Public Welfare United States Senate June 1971 at 1050.
1See OSH Act §2(b) (codified at 29 U.S.C.A. §651).
2See OSH Act §4 (codified at 29 U.S.C.A. §653).
3See OSH Act §5(a)(1) (codified at 29 U.S.C.A. §654).
hazard” that they have a general duty to prevent under the OSH Act even if it was obvious. Yet, the enterprise would be subject to an OSHA citation for violation of the employer’s mandate to provide “employment and places of employment that are free of recognized hazards” whether or not there existed any internal documents describing such hazards. Since the agency’s beginning, an early OSHA Operations Field Manual whose provisions remain in effect has defined “recognized hazards” as “including but not limited to those hazards that any reasonable person would have recognized [as a] hazard.”1
138.B OSH Act (USA) Definition of Terms: Recognized Hazards
The flexible and broad scope of the term “recognized hazard” in OSHA’s statutory language has been tested in decades of litigation, and throughout those decades, the message is clear: the language is open-ended but not unconstitutionally vague. This language was used so to confront new or unexpected workplace hazards, as science reveals new problems and their solution. Recognized hazards refers to dangers that are recognized by the scientific community. Diligent employers and regulatory agencies could do whatever is reasonable and necessary to address new problems and new methodologies to prevent or reduce harm.
The language in Section 5(a)(1) of OSHA is neither substance-specific nor descriptive. Key notions, such as work, employment, health, hazard, and worker, have deliberately not been defined. The “general duties” to prevent the effects of recognized hazards includes threat of harm from other workers as well as employer-based exposure to toxins. Within the scope of this very broad requirement, compliance programs may use the employer’s existing medical data to monitor and improve working conditions. Additionally employers conduct internal audits, medical tests and other industrial hygiene investigations in order to prevent harm and protect workplace health. Both by statutory mandate and under OSHA’s medical access standard, such information must be retrievable for employees for a period of 30 years after surveillance or exposure. Outsourcing, reduced terms of contract, and Web-based work assignments where employers and employees may never meet and never be in the same jurisdiction has changed the legal landscape when looking at the term “employer” under the OSH Act. For example, employers on the Web may not even be in a nation where the U.S. has OSHA jurisdiction for the purposes of one project, but may be next door for another. Parceling out liability into small corporations and subsidiaries that are loosely affiliated has its impact, too. Suddenly, an independent contractor may be the employer or a subcontractor may be held accountable for work both up and down the chain of distribution-sometimes resulting in potential liability that far outstrips the tiny company’s means. For this reason too, there has been extensive discussion regarding the potential for OSHA regulation of work at home,4 and its attendant impact on individual’s notions, if not legal rights, to personal privacy.
1
Chapter IV, Violations, OSHR Reference File 77:2702-77:2707 as cited in Mintz, OSHA History Law and Policy 461 (BNA 1984). The Field Manual further states, “This theory of recognition shall be used only in flagrant cases.”
4See OSHA, Interpretation, OSHA Policies Concerning Employees Working at Home (Nov. 15, 1999) (withdrawn Jan. 5, 2000), available at http://www.osha.gov/as/opa/foia/hot_4.html; see also Press Releases, U.S. Dep’t of Labor, which are available at http://www.dol.gov/cgi-bin/consolid.pl?media+press.
One component of understanding the presence or absence of a “recognized hazard” involves risk assessment, but the precise weight to be granted to risk assessment is not clear. The problem of what role for risk assessment and how to steer OSHA policy in the face of scientific uncertainty has remained important throughout OSHA’s history. This situation arises whenever the work of these organizations becomes the accepted custom or practice, or when new methods for occupational safety and health compliance have been acknowledged by the organization. General counsel and in-house staff involved in compliance efforts should make every effort to remain informed of developments in these crucial organizations.
1:39. OSH Act (USA) General duties clause
The Occupational Safety and Health Act (OSH Act) requires that the Secretary of Labor use authority delegated to OSHA:
To assure safe and healthful working conditions for working men and women by authorizing enforcement of the standards developed under the Act, by assisting and encouraging States in their efforts to assure safe and healthful working conditions, [and] by providing for research, information, education and training in the field of occupational health….1
If no OSHA standard covers a specific situation, employers are responsible for assuming the “general duty” to provide employment and places of employment that are free from “recognized hazards.” 2 This highly litigated clause summarizes the theoretical underpinnings of the OSH Act. It requires both employers and employees to actively comply with safety rules and OSHA regulations. Courts have interpreted the term “recognized hazards” to mean that a standard need not be published by OSHA in order to give rise to the duty and responsibility for safety measures;3 the “general duty” of employers and employees exists in face of every potential harm. This clause has been crucial for the OSH Act’s enforcement in cases of occupational accidents involving “death or serious physical harm.”4 Professional societies and industry standards may in some rare cases serve as a blueprint for federal OSHA standards. Several professional societies and trade associations have remained influential in the shaping of occupational safety and health standards that may ultimately impact upon OSHA compliance. Because of their size or the prestige of the organization, their recommended practices have frequently become the standard for industry or for professionals. Organizations such as the American Conference of Government Industrial Hygienists (ACGIH) which develops guidelines called “Threshold Limit Values (TLVs),”6 are widely respected for their work in the development of occupational safety and health standards. Even though they are not part of an official government agency, their influence and acceptance becomes important in light of the
129 U.S.C.A. §651.
2OSH Act §5(a)(1), 29 U.S.C.A. §654(a)(1).
3American Smelting & Refining Co. v. Occupational Safety and Health Review Com’n, 501 F.2d 504, 2 O.S.H. Cas. (BNA) 1041 (8th Cir. 1974).
4OSH Act §5(a)(1), 29 U.S.C.A. §654(a)(1).
6TLVs are guidelines designed for use by industrial hygienists in making decisions regarding safe levels of exposure to various chemical substances and physical agents found in the workplace. See American Conference of Government Industrial Hygienists, TLV/BEI Resources, available at http://www.acgih.org/TLV/.
General Duties Clause of the Occupational Safety and Health Act.7
1:39.A OSH Act (USA) Definitions OSH Act–Employer
An “employer” is defined under the OSH Act as “a person engaged in a business affecting commerce who has employees.”8 A “person” is defined as “one or more individuals, partnerships, associations, corporations, business trusts, legal representatives, or any organized group of persons.”9 An “employee” is defined as “an employee of an employer who is employed in a business of his employer which affects commerce.”10 Congress intended to subject only employers, and not employees, to criminal liability under §666(e).11
In United States v. Cusack, the court took notice of the principle that “an officer or director’s role in a corporate entity (particularly a small one) may be so pervasive and total that the officer or director is in fact the corporation, and is therefore an employer under §666(e).”12
7 A well-designed and properly implemented in-house occupational safety and health compliance program may enable an enterprise to apply for special OSHA programs, such as STAR, Merit, or other OSHA programs which may provide an exemption from inspections. Even if the in-house compliance program does not qualify for such programs, however, the existence of a well-organized and visibly supported OSHA compliance program can dramatically reduce the likelihood of an OSHA inspection and, if an inspection occurs, there may be a reduced likelihood that violations of OSHA standards will be found. Another major advantage of in-house OSHA compliance programs is that a sound program can identify and prevent potential problems before they cause accidents, long-term injuries or occupational disease. Thus, effective programs both prevent hazardous situations from giving rise to harm and avoid complaints to OSHA that will lead to inspections, thereby avoiding the expense and loss of corporate goodwill associated with OSHA citations.
829 U.S.C.A. §652(5).
929 U.S.C.A. §652(4).
1029 U.S.C.A. §652(6).
11See U.S. v. Shear, 962 F.2d 488, 490-92, 15 O.S.H. Cas. (BNA) 1686, 1992 O.S.H. Dec. (CCH) P 29715 (5th Cir. 1992) (holding that supervisory employee was not an employer who could be held criminally liable under OSHA); U.S. v. Doig, 950 F.2d 411, 414, 15 O.S.H. Cas. (BNA) 1401, 1991 O.S.H. Dec. (CCH) P 29539 (7th Cir. 1991) (employee could not be subjected to criminal liability as aider and abettor of corporate employer’s alleged criminal violation of OSHA).
12U.S. v. Cusack, 806 F. Supp. 47, 51, 15 O.S.H. Cas. (BNA) 1969, 1993 O.S.H. Dec. (CCH) P 30067 (D.N.J. 1992) (denying motion to dismiss by corporation’s sole officer charged with violation of OSHA under “666(e), and indicating that determination of whether officer was employer was question for jury). See also U.S. v. DeLaurentis, 230 F.3d 659 (3d Cir. 2000). The court found that the indictment at bar contained adequate allegations with respect to whether the defendant is an employer for purposes of the OSH Act, and concluded that the standard
1:39.B: OSH Act (USA) General duties clause– Interpretations
A wide variety of occupational safety and health problems are embraced by the term “recognized hazards.” Even though this term has never been interpreted by the U.S. Supreme Court,1 it is considered settled law that Congress intended the agency to use an expansive view of this term in OSHA’s standard-setting and enforcement activities. In general, courts have interpreted these duties to mean that a standard need not be published by OSHA in the Federal Register in order to give rise to the duty and responsibility for safety measures and that the employer’s responsibility under the Act will be determined by the court’s view of the adequacy of the employer’s safety and health programs.2 ASARCO v. OSHRC is a case of first impression that addressed the applicability of the general duty clause to a nonobvious hazard in order to enforce a future modification of OSHA’s existing lead regulation. In that case, the term “recognized hazard” was construed to include hazards one can “taste, hear, see or smell,” as well as hazards less easily recognized by conventional testing or monitoring.3 Recent cases, help to define the obligation of employers. According to Teal v. DuPont, every employer owes a duty to protect employees from exposure to serious hazards, regardless of whether the employer controls the workplace, it is responsible for the hazard, or has the best opportunity to abate the hazard.4 Even if an employer determines that the specified means of compliance is infeasible, it must affirmatively investigate alternative measures of preventing the hazard and implement prevention to the extent feasible.5 This is another instance in which the legal concept of “due diligence” is a
governing a motion to dismiss a criminal indictment required that it deny defendant’s motion. It held that Federal Rule of Criminal Procedure 12(b)(2) authorizes dismissal of an indictment if its allegations do not suffice to charge an offense, but such dismissals may not be predicated upon the insufficiency of the evidence to prove the indictment’s charges,” and thus reversing dismissal where indictment “substantially track[ed] the language of the statute.” (citing U.S. v. Sampson, 371 U.S. 75, 78-79, 83 S. Ct. 173, 9 L. Ed. 2d 136 (1962)).
1American Smelting & Refining Co. v. Occupational Safety and Health Review Com’n, 501 F.2d 504, 2 O.S.H. Cas. (BNA) 1041 (8th Cir. 1974); United Steelworkers of America, AFL-CIO CLC v. Marshall, 592 F.2d 693, 7 O.S.H. Cas. (BNA) 1001, 1979 O.S.H. Dec. (CCH) P 23281 (3d Cir. 1979); United Steelworkers of America, AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 8 O.S.H. Cas. (BNA) 1810, 1980 O.S.H. Dec. (CCH) P 24717, 10 Envtl. L. Rep. 20784 (D.C. Cir. 1980).
2See Brennan v. Butler Lime & Cement Co., 520 F.2d 1011, 3 O.S.H. Cas. (BNA) 1461, 1975-1976 O.S.H. Dec. (CCH) P 19967 (7th Cir. 1975).
3American Smelting & Refining Co. v. Occupational Safety and Health Review Com’n, 501 F.2d 504, 2 O.S.H. Cas. (BNA) 1041 (8th Cir. 1974).
4Teal v. E.I. DuPont de Nemours and Co., 728 F.2d 799, 11 O.S.H. Cas. (BNA) 1857, 1984-1985 O.S.H. Dec. (CCH) P 26887 (6th Cir. 1984) (dictum from &s;§654(a)(2) case).
5Brock v. Dun-Par Engineered Form Co., 843 F.2d 1135, 13 O.S.H. Cas. (BNA) 1652, 1988 O.S.H. Dec. (CCH) P 28178 (8th Cir. 1988). But see Spancrete Northeast, Inc. v. Occupational Safety and Health Review Com’n, 905 F.2d 589, 591, 14 O.S.H. Cas. (BNA) 1585, 1990 O.S.H.
fundamental safeguard of the interests promoted by an inhouse compliance program.
1:39. C. OSH Act (USA) General duties clause– Purposes
An administrative conclusion that an employer is obligated to proect employees against a specific “recognized hazard” can be established by actual employer knowledge. Evidence of such recognition may consist of oral or written statements made by the employer or other management or supervisory personnel during or before the OSHA inspection. Statistical or empirical studies conducted by the employer’s industry which demonstrate awareness of the hazard, evidence such as studies conducted by the employee representative, the union or other employees should also be considered “if the employer or the industry has been made aware of them.”1 Documentation of employer knowledge of a recognized hazard also can include memoranda or other internal documents, as well as state of the art documents from the scientific community that the employer “knew or should have knwn” exist.
For this reason, it is crucial that each enterprise develop internal auditing procedures to ensure occupational safety and health compliance by spotting recognized hazards and taking affirmative steps to fulfill the employers duties to protect the enterprise staff from the effects of recognized sources of harm. The concept of recognized hazards, as discussed by the courts and enforced by OSHA, is a multi-dimensional concept, relating to all kinds of hazards. These hazards not only include those recognized by the employer, the internal Joint Safety Committee or specially trained compliance personnel (such as medical staff or industrial hygienists or OSHA), but also those recognized by the scientific community throughout the world. Without question, the open-ended nature of this provision stems from Congress’ vision of the OSH Act as a technology-forcing vehicle for ameliorating working conditions. The concept that employers have straightforward, affirmative obligations to protect occupational safety and health appears throughout OSHA standards. OSH Act Section 5(a)(2) requires that employers “shall comply with the standards promulgated under this Act.” Similarly, the employer’s obligation to prevent hazards gives rise to the employer’s freedom to create work rules and a presumption that employee’s conduct within the work environment is under the employer’s control. The OSH Act Section 5(b) requires compliance by employees with employer work rules and OSHA standards. It requires that “[e]ach employee shall comply with occupational safety and health standards, all rules, regulations, and orders issued pursuant to this act that are applicable to his [sic] own actions and conduct.” But, that there is no case law to date regarding Section 5(b).
In McLaughlin v. Union Oil Co., the employer violated the general duty clause when it failed to discover a hydrogen stress corrosion cracking in an amine absorber before an explosion occurred.2 The court viewed cracking as a pervasive hazard in pressure vessels. It found that careful search would have revealed the crack that eventually caused the explosion and that the danger was sufficiently well recognized to put a prudent inspector on guard even though no
Dec. (CCH) P 28946 (2d Cir. 1990), which discusses both feasibility and appropriateness.
1 Benjamin Mintz, OSHA History Law and Policy (BNA 1984).
2McLaughlin v. Union Oil Co. of California, 869 F.2d 1039, 13 O.S.H. Cas. (BNA) 2033, 1989 O.S.H. Dec. (CCH) P 28453 (7th Cir. 1989).
explosion had previously occurred–because recognition of a hazard should not wait upon the occurrence of a fatal accident. Industry custom and practice may be taken into account but is not controlling in determining hazard recognition if inadequate to protect employees. For example, if a hazard is “obvious” and “glaring,” it is recognized for purposes of the general duty clause, according to Tri-State Roofing & Sheet Metal, Inc. v. OSHRC.3 Determining whether a working condition constitutes a “recognized hazard” is objective; the employer need not be aware of the hazard in order to be held responsible for its recognition, correction and subsequent hazards.4
Furthermore, no employer can have an affirmative defense by merely asserting that compliance would be expensive in order to escape fines or penalties. To mount an economically-based defense under Section 5(a)(1), the employer must prove the narrowly construed “impossibility of compliance.” In the context of OSHA standard-setting, the U.S. Supreme Court has ruled that Congress struck the balance in favor of workplace safety and health, without regard to so-called economic constraints on the employer’s ability to prevent a hazard, and lower courts have been reluctant to stray from this rule.5 Impossibility of compliance will not be proven if the employer shows merely that compliance would be difficult, inconvenient, or expensive.6
OSHA’s jurisdiction under the Occupational Safety and Health Act (OSH Act) is limited in three important regards:
• By statute;
• By OSHA’s own regulations; and
• By case law interpreting OSH Act’s preemption clause.
1:39. D: Limitations of general duties clause
The first case to establish limits on the employers’ general duties was National Realty &
3Tri-State Roofing & Sheet Metal, Inc. v. Occupational Safety & Health Review Com’n, 685 F.2d 878, 10 O.S.H. Cas. (BNA) 1715, 1982 O.S.H. Dec. (CCH) P 26173 (4th Cir. 1982). Tri-State conflicts with the holding of Babcock & Wilcox Co. v. Occupational Safety and Health Review Commission, 622 F.2d 1160, 8 O.S.H. Cas. (BNA) 1317, 1980 O.S.H. Dec. (CCH) P 24485 (3d Cir. 1980). In that case the court ruled that either the employer must be aware of the existence of a hazard or if the employer is ignorant of it, the industry must generally guard against it. In other words, the hazard must be reasonably foreseeable. The increasing number of industry-based standards for occupational safety and health, however, may render it difficult to prove that a problem was not reasonably foreseeable.
4Donovan v. Royal Logging Co., 645 F.2d 822, 9 O.S.H. Cas. (BNA) 1755, 1981 O.S.H. Dec. (CCH) P 25395 (9th Cir. 1981) (note also that in Kelly Springfield Tire Co., Inc. v. Donovan, 729 F.2d 317, 11, 11 O.S.H. Cas. (BNA) 1889, 1984-1985 O.S.H. Dec. (CCH) P 26867 (5th Cir. 1984), the court provided an excellent summary of the legal principles that test whether the general duty clause applies to a specific hazardous condition).
5American Textile Mfrs. Institute, Inc. v. Donovan, 452 U.S. 490, 101 S. Ct. 2478, 69 L. Ed. 2d 185, 9 O.S.H. Cas. (BNA) 1913, 1981 O.S.H. Dec. (CCH) P 25457, 11 Envtl. L. Rep. 20736 (1981).
6Long Beach Container Terminal, Inc. v. Occupational Safety and Health Review Com’n, 811 F.2d 477, 13 O.S.H. Cas. (BNA) 1109, 1986-1987 O.S.H. Dec. (CCH) P 27830 (9th Cir. 1987).
Construction Co., Inc. v. OSHRC.1 In that case, the court held that the general duty clause requires the elimination of only those hazards that are preventable, and that the Secretary of Labor bears the burden of specifying those hazards and proving the feasibility and the measures the employer should have taken to free the workplace of the hazard. The hazardous conduct must be preventable. OSHA must show that “demonstrably feasible measures would have materially reduced the likelihood that such misconduct would have occurred.” The term “preventable” remains highly litigated, but improvements in both the technology pertaining to human understanding of disease processes associated with industrial toxins, and general access to scientific data using on-line databases such as Medline, Toxline, NIOSHTIC and Silver Platter2 have made it increasingly easy for the Secretary of Labor to meet this burden and for employers to be held to these requirements. The Secretary may also meet this burden by proving that hazards could have been prevented by changing work practices within the enterprise or by using available substitutes. It is logical that as understanding and widespread access to sophisticated information progresses, the applicability of this restraint on OSHA’s use of §5(a)(1) has diminished practical effect.3
In order for there to be a violation of the general duties, the standards must be capable of achievement, as discussed in Empire-Detroit Steel Division Detroit Steel Corp. v. OSHRC.4 Employers may rely on compliance with the administrative safety standard promulgated pursuant to the OSH Act to absolve them from liability for any injury actually suffered by employees, if they can prove that they had no knowledge that the standard was inadequate to prevent the hazards the OSHA standard was intended to address, or if conditions in the place of employment
1
National Realty & Const. Co., Inc. v. Occupational Safety and Health Review Commission, 489 F.2d 1257, 1 O.S.H. Cas. (BNA) 1422 (D.C. Cir. 1973).
2
Silver Platter is a private subscription service that provides abstracts and articles from NIOSHTIC, the office for industrial health in the UK, and the CIS abstract service of the International Labour Office in Geneva Switzerland on CD Rom for a small annual fee.
3
In REA Exp., Inc. v. Brennan, 495 F.2d 822, 1 O.S.H. Cas. (BNA) 1651 (2d Cir. 1974), the court ruled that the duty of the employer to prevent and suppress hazardous conduct by employees is not qualified by such common law doctrines as assumption of risk, contributory negligence, or comparative negligence. Within one year after National Realty was decided, the courts expanded its somewhat restrictive test to accord OSHA and the Secretary of Labor greater leeway in defining and enforcing citations against “recognized hazards” in ASARCO v. OSHRC and acknowledged broader employer responsibilities in REA Express. American Smelting & Refining Co. v. Occupational Safety and Health Review Com’n, 501 F.2d 504, 2 O.S.H. Cas. (BNA) 1041 (8th Cir. 1974).
4
Empire-Detroit Steel Div., Detroit Steel Corp. v. Occupational Safety and Health Review Com’n, 579 F.2d 378, 6 O.S.H. Cas. (BNA) 1693, 1978 O.S.H. Dec. (CCH) P 22813 (6th Cir. 1978).
are such that the standard will not adequately deal with the hazards to which employees are exposed and the Secretary does not meet the burden of proving recognized harms.5 The concept of employer “control” over hazards and types of workplaces is equally far-reaching. For example, employer control extends to multi-employer worksites. But, in Bratton Corp. v. OSHRC, the court indicated that it would have allowed a subcontractor on a multi-employer work site, who neither created nor controlled a condition in violation of safety standards, if the employer proved that it took realistic steps, as an alternative, for literal compliance with standards, to protect its employees.6
An employer is not an insurer, and need not take steps to prevent hazards that are not generally foreseeable, including the hazardous, idiosyncratic behavior of an employee. However, employers must take all feasible measures to prevent foreseeable hazards, including dangerous “employee misconduct.” OSHA bears the burden of proof to show that “demonstrably feasible measures would have materially reduced the likelihood that such misconduct would have occurred.”7 This obligates OSHA to show that the specific hazard involved could have been avoided or reduced. The key term in this principle is “idiosyncratic.” If the employee misconduct can be anticipated, it is also preventable; if the employee misconduct was routine, the employer has an affirmative obligation to prevent the hazard and subsequent harm by altering work practice rules, rotating the employee into alternative tasks, or enforcing in-house standards and procedures. Alternatives may create a greater hazard, a defense unsuccessfully pleaded in Voegele Co., Inc. v. OSHRC.8 This defense is very limited in its application because there are many types of alternatives to be explored. These include change in work practices, reducing the
5
International Union, United Auto., Aerospace and Agr. Implement Workers of America v. General Dynamics Land Systems Div., 815 F.2d 1570, 13 O.S.H. Cas. (BNA) 1201, 1986-1987 O.S.H. Dec. (CCH) P 27873 (D.C. Cir. 1987).
6
Bratton Corp. v. Occupational Safety and Health Review Com’n, 590 F.2d 273, 7 O.S.H. Cas. (BNA) 1004, 1979 O.S.H. Dec. (CCH) P 23262 (8th Cir. 1979). For example, in Anning-Johnson Co. v. U. S. Occupational Safety and Health Review Com’n, 516 F.2d 1081, 3 O.S.H. Cas. (BNA) 1166, 1974-1975 O.S.H. Dec. (CCH) P 19684 (7th Cir. 1975), the Seventh Circuit absolved a contractor of liability for a minor violation of OSHA safety standards since the subcontractor neither created nor had contractual authority to remedy the violation. At the same time, a contractor at a construction site does not necessarily avoid responsibility for citations just by demonstrating that he or she has not created the dangerous situation, although the contractor may prevail on such a defense. Marshall v. Monroe & Sons, Inc., 615 F.2d 1156, 8 O.S.H. Cas. (BNA) 1034, 1980 O.S.H. Dec. (CCH) P 24261, 29 Fed. R. Serv. 2d 709 (6th Cir. 1980).
7
Pennsylvania Power & Light Co. v. Occupational Safety and Health Review Com’n, 737 F.2d 350, 11 O.S.H. Cas. (BNA) 1985, 1984-1985 O.S.H. Dec. (CCH) P 26938 (3d Cir. 1984).
8 Voegele Co., Inc. v. Occupational Safety and Health Review Com’n, 625 F.2d 1075, 8 O.S.H. Cas. (BNA) 1631, 1980 O.S.H. Dec. (CCH) P 24587 (3d Cir. 1980).
duration of employee exposure to a particular hazard, and the availability of less hazardous substitutes. Asserting this defense is also problematic, because the concept of a “greater hazard” is amorphous and fact-specific and because conditions that are relatively hazardous in one context may be less hazardous in a different setting. A good example would be the decision whether to engage in asbestos removal in a given worksite. In that situation, the analysis of “greater hazard” would look not only at available substitutes for asbestos, but at the use of the facilities, the present asbestos levels in the ambient air, and whether the asbestos was encapsulated or was peeling off. The decision regarding relative hazards might also differ based on whether the worksite that gave rise to the violation was an office, a school used by small children, or a storage facility that was rarely used and not accessible to the general public. For this reason only, the affirmative defense of greater hazard may require more time and staff attention than the Secretary of Labor has available and may prove to be a successful strategy.
1:39 E. First, the types of employment covered by the OSH Act are limited by the statute itself. For this reason, OSHA is frequently “caught in the middle” of jurisdictional controversies. Many important aspects of occupational accident prevention and health protection were omitted from OSHA’s powers, such as: traffic codes, building codes, and workers’ compensation; the latter is specifically reserved to the states.1 By statute, the OSH Act also does not cover:
• federal or state public employees (state, county and municipal workers, regardless of job description);
• military personnel;
• miners; and
• employees covered by “state plans” where the states retain some autonomy.2
Employees covered by specific federal statutes, (i.e., nuclear facilities workers and workers covered by the National Endowment for the Humanities Act) have also been excluded from coverage by the OSH Act. Public employees who perform hazardous tasks that endanger their lives daily, working in parks departments, sanitation departments, sewage treatment plants, museums, police and fire departments, are typically covered by special state legislation or municipal ordinances but not by the OSH Act. By law, safety and health programs are required to be established for employees in each federal agency by the agencies themselves.
By OSHA regulations and agency practice, OSH Act has not been interpreted to cover religious establishments engaged in religious services or domestic employment,3 although the agency has recently made it clear that so-called “homework” is covered by OSH Act and that it is simply a question of enforcement priorities, not law, that allows OSHA to use its discretion to refrain from inspecting certain outsourced facilities. In addition, OSHA guidelines and directives have exempted employers with 10 or fewer employees or employers in low-hazard industries
1
OSH Act §4; 29 U.S.C.A. §653.
2
See §1:177.
3
29 U.S.C.A. §653.
from certain record-keeping requirements, unless they are governed by a “state plan” that so requires. State laws may also have different or more stringent requirements.
1:105. Statutory limits– Preemption of OSHA’s jurisdiction
The OSH Act does not apply to private sector employees covered by concurrent or conflicting state or federal laws. Contrary to traditional principles of federalism, the OSH Act’s preemption clause limits the reach of the OSH Act itself; if another federal or state agency has already exercised its regulatory authority governing working conditions, then OSHA cannot inspect the workplace or enforce OSHA standards. OSH Act §4 provides:
Nothing in this chapter shall be construed to supersede or in any manner affect any workmen’s compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of or in the course of employment.1
Under this statutory scheme, a wide range of local and state laws relating to occupational safety and health remain. Traffic and building codes, and state and local ordinances governing sanitation, health inspections, and fire protection also constitute a significant part of occupational safety and health law. In addition, major statutes are administered by other federal agencies, who have also been delegated the authority to promulgate standards, conduct inspections and issue penalties under the tenets of United States administrative law. Potentially relevant laws include: Federal Hazardous Substances Act, the Clean Air Act, the Noise Control Act of 1972, the Solid Waste Disposal Act of 1976, the Resource Conservation and Recovery Act of 1976, and the Toxic Substances Control Act. The Toxic Substances Control Act and the Fair Labor Standards Act and several international trade and tariff agreements also set standards for working conditions that have arguably better claims to the OSH Act jurisdiction than OSHA. Furthermore, state labor and health departments also have their own laws, including statutes governing the quality of working conditions.
OSHA’s administrative pattern is the reverse of traditional federal preemption in this regard. This aspect of OSHA jurisdiction has been successfully used to limit rather than expand OSHA’s abilities. It can be said that the OSH Act2 coverage extends to a significant proportion of the population, so long as there is no preexisting exercise of safety and health authority by a state or federal regulatory activity to preempt the field. It is limited by subject matter and also by the activities of other regulatory agencies who may lack OSHA’s expertise in occupational safety and health. Prior to the decision in Gade v. National Solid Waste Management Ass’n,3 several court decisions allowed other laws to preempt the Occupational Safety and Health Act (OSH
1
OSH Act §4(b)(4); 29 U.S.C.A. §653(b)(4).
2
OSH Act §4(b)(1); 29 U.S.C.A. §653(b)(1).
3
Gade v. National Solid Wastes Management Ass’n, 505 U.S. 88, 112 S. Ct. 2374, 120 L. Ed. 2d 73, 15 O.S.H. Cas. (BNA) 1673, 1992 O.S.H. Dec. (CCH) P 29709, 22 Envtl. L. Rep. 21073 (1992).
See §1:125 for a discussion of Gade.
Act). It should be noted also that Gade is clearly limited to issues of state/federal relations and probably does not apply when the OSH Act is preempted by a competing federal law. In general, the courts used a three-part test to determine whether or not OSHA jurisdiction has been preempted by a competing or duplicative law. The OSH Act is clearly preempted by statutes that deal with worker safety and health in a particular industry, such as mining, or an industry expressly mentioned in the text of the OSH Act itself, such as public employees or agriculture.4 There have been occasional exceptions, such as the overlap between agencies when maritime jurisdiction (traditionally federal but governed by particular agencies) has been involved, such as the Coast Guard. In general, in order to supplant the OSH Act jurisdiction, the preempting law must concern actual exercise of authority regarding working conditions.5 This facet of OSHA preemption remains consistently important.6
In United Steelworkers v. Auchter,7 the Third Circuit Court of Appeals rejected a claim that OSH Act and the Secretary of Labor’s Hazard Communication Standard, as promulgated by OSHA, preempted several state laws pertaining to the “Right to Know” and the disclosure of the presence of toxic or hazardous materials at the workplace. Many of those laws required training or the transfer and distribution of Material Safety Data Sheets (MSDS) by downstream employers in a manner that was similar, although more stringent in their precise requirements, to the federal OSHA Hazard Communication Standard. As in the later Supreme Court case, Gade v. National Solid Waste Management Ass’n many of those state laws were not the subject of prior approval by the Secretary of Labor as a part of OSHA State Plans. And, at least two of the state laws in question, those of New Jersey and New York, housed the authority for implementation of those provisions outside of the Department of Labor, in either the Department of Environment or Department of Public Health. The Auchter court understood that “if a federal program is enacted which guarantees employees protection comparable to that of New York’s Right to Know Law, the federal law will preempt the New York Law”8 but the court accepted the primacy of the laws
4
See Interpreting OSHA’s Preemption Clause: Farmworkers as a Case Study, 128 U Pa. L. Rev. at 1509 (1980).
5
Southern Ry. Co. v. Occupational Safety and Health Review Com’n, 539 F.2d 335, 3 O.S.H. Cas. (BNA) 1940, 1975-1976 O.S.H. Dec. (CCH) P 20414 (4th Cir. 1976) (defining “working conditions” as environmental area in which employee customarily goes about daily tasks).
6
See Gade v. National Solid Wastes Management Ass’n, 505 U.S. 88, 112 S. Ct. 2374, 120 L. Ed. 2d 73, 15 O.S.H. Cas. (BNA) 1673, 1992 O.S.H. Dec. (CCH) P 29709, 22 Envtl. L. Rep. 21073 (1992).
See also §1:127.
7
United Steelworkers of America, AFL-CIO-CLC v. Auchter, 763 F.2d 728, 12 O.S.H. Cas. (BNA) 1337, 1984-1985 O.S.H. Dec. (CCH) P 27293, 15 Envtl. L. Rep. 20545 (3d Cir. 1985).
8
and regulations from the states in the interim period between the creation of the original Hazard Communication Standard and the modified standard that appeared several years later.
The Court in Gade did not expressly overrule or comment upon the Auchter case. It remains unclear whether all public health laws and environmental laws can be so broadly construed as occupational safety and health laws that they are preempted by OSH Act. This interpretation of Gade would seemingly undermine the entire history of OSHA preemption cases and place the credible jurisdiction of the EPA and various Departments of Health into jeopardy, a result not likely intended by the court. Logically, there must be some balancing test with criteria for determining whether a statute is too far removed from the realm of occupational safety and health laws administered by the Department of Labor in order to survive judicial scrutiny. Such criteria have not been offered by the courts to date, and must await refinement of the Gade decision in light of significant precedents such as Auchter.
Overlapping Jurisdiction with federal laws–FAA
Section 4(b)(1) deprives OSHA of jurisdiction when working conditions are already subject to regulations promulgated by other agencies.9 The preemption clause is often used by businesses seeking to limit their OSH Act liability. This is especially important because under the OSH Act there is no monetary limit on costs for compliance.10 Historically, industry has not sought OSH Act preemption when faced with a more stringent alternative, but the value of forum shopping among industries seeking a favorable or friendly agency should not be understated. Other federal laws preempt the OSH Act when they already regulate the occupational safety and health of a particular industry. In general, OSHA lacks jurisdiction over working conditions that are already subject to safety regulations promulgated by other federal agencies, such as the Department of Transportation. According to the court in Columbia Gas of Pennsylvania, Inc. v. Marshall,11 such preemption requires a showing that a coordinate federal agency has “exercised” authority by: (1) actually promulgating regulations in the area, and that these concurrent regulations (2) cover the specific working conditions purportedly within the jurisdiction of OSHA. In Columbia Gas of Pennsylvania, the defendant employer met this burden. A court will examine the substance of the preemptory regulation, as long as it covers the identical working conditions. The court held that the Secretary has no jurisdiction to promulgate or enforce
Feitshans, Hazardous Substances in the Workplace: How Much Do Workers Have the Right To Know?, 1985 Det CL. Rev. 697 at 716, citing Report of the New York State Bureau of Toxic Substances Management, at 3.
9
Organized Migrants in Community Action, Inc. v. Brennan, 520 F.2d 1161, 8 Env’t. Rep. Cas. (BNA) 1442, 3 O.S.H. Cas. (BNA) 1566, 1975-1976 O.S.H. Dec. (CCH) P 20058, 5 Envtl. L. Rep. 20681 (D.C. Cir. 1975).
10
See §1:109.
11
Columbia Gas of Pennsylvania, Inc. v. Marshall, 636 F.2d 913, 9 O.S.H. Cas. (BNA) 1135, 1981 O.S.H. Dec. (CCH) P 25021 (3d Cir. 1980).
occupational safety and health standards for particular employee working conditions where another federal agency is exercising statutory authority over those conditions.12
Section 4(b)(1) deprives OSHA of jurisdiction when working conditions are already subject to regulations promulgated by other agencies.13 The preemption clause is often used by businesses seeking to limit their OSH Act liability. This is especially important because under the OSH Act there is no monetary limit on costs for compliance.14 Historically, industry has not sought the OSH Act preemption when faced with a more stringent alternative, but the value of forum shopping among industries seeking a favorable or friendly agency should not be understated. Other federal laws preempt the OSH Act when they already regulate the occupational safety and health of a particular industry. In general, OSHA lacks jurisdiction over working conditions that are already subject to safety regulations promulgated by other federal agencies, such as the Department of Transportation. According to the court in Columbia Gas of Pennsylvania, Inc. v. Marshall,15 such preemption requires a showing that a coordinate federal agency has “exercised” authority by: (1) actually promulgating regulations in the area, and that these concurrent regulations (2) cover the specific working conditions purportedly within the jurisdiction of OSHA. In Columbia Gas of Pennsylvania, the defendant employer met this burden. A court will examine the substance of the preemptory regulation, as long as it covers the identical working conditions. The court held that the Secretary has no jurisdiction to promulgate or enforce occupational safety and health standards for particular employee working conditions where another federal agency is exercising statutory authority over those conditions.16
By contrast, claims of regulatory authority without any exercise of authority is not
12
Columbia Gas of Pennsylvania, Inc. v. Marshall, 636 F.2d 913, 9 O.S.H. Cas. (BNA) 1135, 1981 O.S.H. Dec. (CCH) P 25021 (3d Cir. 1980), citing Organized Migrants in Community Action, Inc. v. Brennan, 520 F.2d 1161, 1166, 8 Env’t. Rep. Cas. (BNA) 1442, 3 O.S.H. Cas. (BNA) 1566, 1975-1976 O.S.H. Dec. (CCH) P 20058, 5 Envtl. L. Rep. 20681 (D.C. Cir. 1975).
13
Organized Migrants in Community Action, Inc. v. Brennan, 520 F.2d 1161, 8 Env’t. Rep. Cas. (BNA) 1442, 3 O.S.H. Cas. (BNA) 1566, 1975-1976 O.S.H. Dec. (CCH) P 20058, 5 Envtl. L. Rep. 20681 (D.C. Cir. 1975).
14
See §1:109.
15
Columbia Gas of Pennsylvania, Inc. v. Marshall, 636 F.2d 913, 9 O.S.H. Cas. (BNA) 1135, 1981 O.S.H. Dec. (CCH) P 25021 (3d Cir. 1980).
16
Columbia Gas of Pennsylvania, Inc. v. Marshall, 636 F.2d 913, 9 O.S.H. Cas. (BNA) 1135, 1981 O.S.H. Dec. (CCH) P 25021 (3d Cir. 1980), citing Organized Migrants in Community Action, Inc. v. Brennan, 520 F.2d 1161, 1166, 8 Env’t. Rep. Cas. (BNA) 1442, 3 O.S.H. Cas. (BNA) 1566, 1975-1976 O.S.H. Dec. (CCH) P 20058, 5 Envtl. L. Rep. 20681 (D.C. Cir. 1975).
enough to preempt the OSH Act. In Baltimore & Ohio R. Co. v. OSHRC,17 the court ruled that the word “exercise,” from the (b)(1) phrase “other federal agencies exercise statutory authority,” does not mean any assertion of regulatory authority, no matter how limited, or any proposed (as distinct from actually effective) exercise of such authority. Thus, the fact that the Federal Railroad Administration issued a notice of proposed rulemaking and thereafter concluded to move toward a comprehensive code of safety and health standards, did not constitute an “exercise” precluding further regulatory action by OSHA. Similarly, Southern Pacific Transp. Co. v. Usery18 follows Baltimore & Ohio R. Co. by rejecting the concept of an “industry-wide” exemption from OSHA regulations. Preemption in these cases would be based on an exercise of authority by the Department of Transportation. Since there has been no exercise of authority, OSHA’s authority remained valid.
In United States Air, Inc. v. OSHRC,19 Federal Aviation Administration regulations relating to prevention of air piracy and terrorism, which led to the closing by the airline of certain doors at an airport passenger lounge, preempted regulations, promulgated under the OSH Act, which required the door to be kept open but have filled the void in regulatory authority by happenstance. OSHA does not regulate over-the-road vehicles, but it has made efforts to improve safety in highway construction work zones. This affects not only construction workers but those public employees who may be inspecting the job.20 FAA and OSHA created a Memorandum of Understanding so that both agencies systematically examine application of OSHA health and safety rules to airline cabin crews.21
17
Baltimore & O. R. Co. v. Occupational Safety and Health Review Commission, 548 F.2d 1052, 4 O.S.H. Cas. (BNA) 1917, 1976-1977 O.S.H. Dec. (CCH) P 21385 (D.C. Cir. 1976).
18
See also Southern Pac. Transp. Co. v. Usery, 539 F.2d 386, 4 O.S.H. Cas. (BNA) 1693, 1976-1977 O.S.H. Dec. (CCH) P 21102, 40 A.L.R. Fed. 135 (5th Cir. 1976).
19
U.S. Air, Inc. v. Occupational Safety and Health Review Com’n, 689 F.2d 1191, 10 O.S.H. Cas. (BNA) 1721, 1982 O.S.H. Dec. (CCH) P 26324 (4th Cir. 1982).
20
According to Assistant Secretary Jeffress, “for some public employees, safety and health on the job is a privilege rather than a right. That’s because if their agencies won’t do the right thing, they have nowhere to turn. Many, like those in Pennsylvania or Delaware, are not covered by federal or state OSHA programs. President Clinton and Vice President Gore want to change that.” See http://www.osha.gov/speeches. “Every worker has the right to a safe and healthful workplace.” Date: 06/12/1999. Presented to American Federation of State, County, and Municipal Employees Regional Safety and Health Conference. Speaker: Charles N. Jeffress.
21
See Rissetto, Reinert, Jr. & Walkowiak, The Expansion of OSHA’s Jurisdiction in the Airline Industry (The American Law Institute); Rissetto, Reinert, Jr. & Walkowiak, discussing Memorandum of Understanding Between FAA, OSHA Related To Safety, Health Rules
Whistleblowers
Whistleblower protections22 exist under OSH Act Section 11(c) (the antidiscrimination clause), environmental laws, and in specific industries, such as the nuclear and motor freight industries, under the Energy Reorganization Act, Surface Transportation Assistance Act, and the Comprehensive Environmental Response, and Compensation and Liability Act.
(1) provided, caused to be provided, or had been about to provide (with the knowledge of the employer) or cause to be provided to the employer or Federal Government information relating to any violation or other provision of Federal law relating to air carrier safety;
(2) filed, caused to be filed, or had been about to file (with the knowledge of the employer) or cause to be filed a proceeding relating to any violation or alleged violation of any order, regulation, or standard of the FAA or any other provision of Federal law relating to air safety;
(3) testified or was about to testify in such a proceeding; or
(4) assisted or participated or was about to participate in such a proceeding.
In the case of Mallard Bay Drilling, Inc. v. Herman,23 the court found that a drilling barge on a navigable waterway within state territorial waters was a “vessel,” over which the Coast Guard had exclusive regulatory authority, not a “workplace,” over which the Occupational Safety and Health Administration (OSHA) had jurisdiction.24 In June 1997, four Mallard employees were killed and two others seriously injured in an explosion on the Mr. Beldon, a Mallard drilling barge. On that date, the vessel had been drilling an oil well on a navigable waterway within the territorial waters of Louisiana. Although the U.S. Coast Guard took the lead role in investigating the explosion, OSHA issued a citation against Mallard charging three violations of the OSH Act. Mallard did not challenge the merits of the allegations; rather, it challenged jurisdiction, asserting that OSHA lacked authority to regulate working conditions
Covering Flight Attendants, Daily Lab Rep (Aug. 8, 2000) at E-1 (BNA); Delegation of Authority and Assignment of Responsibility to the Assistant Secretary for Occupational Health and Safety, 65 Fed. Reg. 50017 (Aug. 16, 2000). See also Whistleblowers: OSHA to Act on Behalf of Aviation Workers Retaliated Against After Filing Complaints, Daily Lab Rep (Aug. 16, 2000) at A-7 (BNA). A useful and comprehensive reference source for OSHA whistleblower enforcement may be found at the Department of Labor’s Office of Administrative Law Judges Law Library, http://www.oalj.dol.gov/libwhist.htm.
22
See §2:8.
23
Mallard Bay Drilling, Inc. v. Herman, 212 F.3d 898, 18 O.S.H. Cas. (BNA) 2161, 2000 O.S.H. Dec. (CCH) P 32120, 2000 A.M.C. 1942 (5th Cir. 2000), judgment rev’d, 534 U.S. 235, 122 S. Ct. 738, 151 L. Ed. 2d 659, 19 O.S.H. Cas. (BNA) 1721, 2001 O.S.H. Dec. (CCH) P 32515, 2002 A.M.C. 305 (2002).
24
14 U.S.C.A. §2; Occupational Safety and Health Act of 1970 §4(b)(1), 29 U.S.C.A. §653(b)(1); 46 U.S.C.A. §6301.
aboard the Mr. Beldon because OSHA’s jurisdiction was preempted by the Coast Guard’s regulatory authority over vessels.
This decision is consistent with precedents from the Federal Railway Agency (FRA), the Federal Aviation Administration (FAA), the Environmental Protection Agency (EPA), and many others. The OSH Act does not apply to “working conditions of employees with respect to which other Federal agencies … exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.” Under 14 U.S.C.A. §2, the Coast Guard “shall administer laws and promulgate and enforce regulations for the promotion of safety of life and property on and under the high seas and waters subject to the jurisdiction of the United States covering all matters not specifically delegated by law to some other executive department ….”
It was uncontested that the Coast Guard had jurisdiction to investigate the marine casualty in this case, pursuant to 46 U.S.C.A. §6301. The dispute concerned whether the Coast Guard’s jurisdiction is exclusive. The controlling case points out that the Coast Guard has exclusive authority over the working conditions of seamen.25 The safety procedures at issue in this case relate to “working conditions” of seamen. Therefore OSHA’s attempt to draw a distinction under law between uninspected and inspected vessels proved inapposite.26
Also consistent with long-standing principles of the OSH Act preemption by other agencies under Section 4(b)(4), OSHA could not engage in enforcement when the Coast Guard has jurisdiction over uninspected vessels, and possessed the authority to issue safety regulations for uninspected vessels, as well as inspected vessels, and the Coast Guard in fact exercised such authority.27
When the Coast Guard has exercised authority, the OSH Act will be preempted. However, where the Coast Guard has not exercised its authority to regulate working conditions on uninspected vessels, the OSH Act28 is not preempted. In Cook v. Ancich,29 a seaman brought
25
See Clary v. Ocean Drilling and Exploration Co., 609 F.2d 1120, 7 O.S.H. Cas. (BNA) 2209, 1980 O.S.H. Dec. (CCH) P 24227, 1980 A.M.C. 1160 (5th Cir. 1980); Donovan v. Texaco, Inc., 720 F.2d 825, 11 O.S.H. Cas. (BNA) 1721, 1983 O.S.H. Dec. (CCH) P 26737, 1985 A.M.C. 777 (5th Cir. 1983). “OSHA regulations do not apply to working conditions of seamen on vessels in navigation.”
26
Consistent with the precedents, there was no evidence that the barge in that case was inspected. Clary’s holding that the OSH Act “does not apply to the working conditions of seamen on vessels operating on the high seas,” therefore applied to Mallard. Clary at 1122.
27
The Coast Guard is expressly authorized to issue safety regulations for uninspected vessels for: (1) the number, type, and size of fire extinguishers; (2) the type and number of life preservers; (3) flame arrestors, backfire traps; (4) ventilation of engine and fuel tank compartments; and (5) the number and types of alerting and locating equipment for vessels on the high seas. 46 U.S.C.A. §4102.
28
action against the owner of an uninspected fishing vessel to recover damages resulting from a failure to be provided with a hard hat. Upon the seaman’s motion for partial summary judgment, the district court held that: (1) OSHA regulations applied to working conditions on the fishing vessel, and (2) the owner was liable for injury sustained by seaman as result of violation of OSHA regulation on protective equipment and no deduction for contributory negligence would be allowed. Consistent with the finding of Mallard, where the Coast Guard had exercised authority, in this case the court found Coast Guard authority had not been exercised. In this case, the court found the Coast Guard and OSHA regulations to be functionally equivalent and that although these agencies agreed that they share jurisdiction over vessels of this class, there were no Coast Guard regulations on protective equipment and OSHA specifically states in directive C PL 2-1.20 that the protective equipment provision in 29 C.F.R. §1910.1 is applicable and enforceable on uninspected fishing vessels. Thus, 29 C.F.R. §1910.1 is a safety statute, enacted for the benefit of a class of workers, to which plaintiff belongs, designed to protect workers from head injuries.30
The relationship between OSHA and Coast Guard jurisdiction becomes even more troublesome when the workplace is a drilling rig located on a platform on the Outer Continental Shelf (OCS). Due to the special language within the text of the OSH Act itself, when any injury occurs on a drilling rig located on a platform on the Outer Continental Shelf, the outcome is not so clear. The Outer Continental Shelf Lands Act (OCSLA), by its own terms, contemplates that OSHA regulations may apply to operations conducted on the OCS. The OCSLA provides that “[n]othing in this subchapter shall affect the authority provided by law to the Secretary of Labor for the protection of occupational safety and health.”31 And the OSH Act states that it “shall apply with respect to employment performed in a workplace in … Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act.”32
Herman v. Tidewater Pacific, Inc., 160 F.3d 1239, 1246, 18 O.S.H. Cas. (BNA) 1545, 1998 O.S.H. Dec. (CCH) P 31703, 1999 A.M.C. 236 (9th Cir. 1998), citing Donovan v. Red Star Marine Services, Inc., 739 F.2d 774, 11 O.S.H. Cas. (BNA) 2049, 1984-1985 O.S.H. Dec. (CCH) P 26981, 1985 A.M.C. 46 (2d Cir. 1984) and In re Inspection of Norfolk Dredging Co., 783 F.2d 1526, 12 O.S.H. Cas. (BNA) 1715, 1986-1987 O.S.H. Dec. (CCH) P 27522, 1987 A.M.C. 283 (11th Cir. 1986).
See also Occupational Safety and Health Act of 1970, §4(a), 29 U.S.C.A. §653(a).
29
Cook v. Ancich, 119 F. Supp. 2d 1118, 2001 A.M.C. 425 (W.D. Wash. 2000).
30
Under FELA negligence standards incorporated by the Jones Act, the defendant is liable as a matter of law and no deduction for contributory negligence will be allowed. For this reason, OSHA regulations applied to working conditions on an uninspected, docked fishing vessel at the time of a seaman’s employment.
31
43 U.S.C.A. §1347(d).
32
The Coast Guard likewise exercises authority over fixed platforms on the Outer Continental Shelf through OCSLA.33 This creates a particularly thorny area on OCSLA jurisprudence not fully resolved.34
Preemption of OSHA’s Jurisdiction Does Not Preclude Protected Activity for Filing OSHA Complaint.
The existence of a legal issue, of whether OSHA has jurisdiction over a specific type of regulation, such as pesticide exposures in the agricultural environment, does not preclude OSHA jurisdiction to protect from retaliation and discrimination those employees who complain to the agency about an employer’s potential violation of OSHA regulations. In the recent case of Terminix International, Inc. v. Secretary of Labor,35 the protected activity of filing a complaint, and not the substance of the law itself is the linchpin of determining whether an employer terminated or demoted an employee with a retaliatory motive.
In Terminix, the Kentucky Court of Appeals reaffirmed the notion that an employee who in good faith complains of violations should be immune from retaliation by the employer, because the employee cannot predict whether the act of complaining will in fact result in a subsequent finding of a violation of the law. This concept sounds complex, but is actually rooted in a rule of common sense: if an employee believes in good faith that the employer is violating OSHA regulations, and then complains to OSHA and then a citation is issued, the complainant employee should be protected against employer retaliation, regardless whether OSHRC or a court later determines there was an actual violation of the law. The factual circumstances surrounding the act of complaining to OSHA are protected activity according to the OSH Act section 11(c).36 In fact, the employer in Terminix was given citations, which were not upheld.
The Kentucky Occupational Safety and Health Review Commission decision finding retaliation by the employer following the protected activity of filing a complaint was upheld by the Kentucky Court of Appeals, when it found held that “since the EPA regulations are silent on occupational safety and health discrimination, Kentucky OSHA has jurisdiction under KRS 338.121 to protect pesticide workers who engage in a protected activity.”37 In Terminix, the
29 U.S.C.A. §653(a).
33
See 43 U.S.C.A. §1333(e); 33 C.F.R. §143 (1977).
34
On what was ostensibly a Daubert motion filed by the plaintiff, in Mang v. Parker Drilling Offshore, L.L.C., 2001 WL 179920 (E.D. La. 2001), the court circumvented the conflict by finding under Louisiana law the violation of a regulation generally does not constitute negligence per se and would allow evidence to be introduced regarding OSHA regulations.
35
Terminix Intern., Inc. v. Secretary of Labor, 92 S.W.3d 743 (Ky. Ct. App. 2002).
36
OSH Act, 29 U.S.C.A. §662(c).
37
complaint on behalf of an employee who was rendered semicomatose following organophosphate exposure was actually filed by the employee’s mother, but the court nonetheless found substantial evidence from the circumstances to infer that the subsequent termination of the employee was based on the protected activity of complaining to OSHA about potential violations of health and safety. The court found that after the Franklin Circuit Court determined that “Kentucky OSHA has jurisdiction under KRS 338.121 to protect pesticide workers who engage in protected activity,”38 and that in the absence of discrimination protections for non-agricultural workers who complain to EPA, OSHA was the sole agency that could provide a remedy for employees who made a good faith complaint about dangerous working conditions.
The Court of Appeals affirmed the Commission’s view that the statute protecting employees from retaliation for filing of safety complaints was not preempted by Environmental Protection Agency (EPA) regulations concerning pesticide programs, including retaliatory actions by employers. Instead, it found that EPA’s regulations did not govern the working conditions of individuals employed to use pesticides, except for individuals employed to use pesticides in an agricultural environment. The Kentucky court held that insofar as pesticide workers are concerned, Environmental Protection Agency (EPA) pesticide regulations prohibiting retaliatory action by an employer apply only to agricultural employers or employers for whom pesticides are used in an agricultural context. Therefore, had there been a question of preemption, OSHA regulations governing working conditions would have filled the void.
Furthermore, the court considered whether preemption was established by EPA’s federal regulations prohibiting retaliatory action by an agricultural employer or employer for whom pesticides are applied in an agricultural establishment. Although the employer maintained that “the federal regulation, 40 C.F.R. §170.7(b), does not relate exclusively to agricultural situations,”39 the OSHRC and the reviewing courts successively disagreed. The EPA regulation in question prohibited retaliatory action taken by “‘[t]he agricultural employer or the handler employer.’”40 The Court of Appeals, consistent with the proceedings below, found that the EPA “comprehensively occupies the field of regulation concerning the labeling and packaging of pesticides … [But], those regulations could not govern the working conditions of people employed to use pesticides.”41 It found, “Only the working conditions of those employed to use
Terminix Intern., Inc. v. Secretary of Labor, 92 S.W.3d 743, 746 (Ky. Ct. App. 2002).
38
Terminix Intern., Inc. v. Secretary of Labor, 92 S.W.3d 743, 746 (Ky. Ct. App. 2002); KRS 338.021, 338.121; 40 C.F.R. 170.3(1, 2), 40 C.F.R. 170.7(b).
39
Terminix Intern., Inc. v. Secretary of Labor, 92 S.W.3d 743, 747 (Ky. Ct. App. 2002).
40
Terminix Intern., Inc. v. Secretary of Labor, 92 S.W.3d 743, 747 (Ky. Ct. App. 2002).
41
Terminix Intern., Inc. v. Secretary of Labor, 92 S.W.3d 743, 747 (Ky. Ct. App. 2002) (citations omitted).
pesticides in an agricultural environment are regulated. In short, we agree with the Commission that the EPA regulations are silent on occupational safety and health discrimination and that Kentucky OSHA thus has jurisdiction to protect pesticide workers who engage in a protected activity.”42 It determined, therefore, that such regulations could not reach working conditions regulated by OSHA.
One of the major problems that has long plagued occupational health systems is workers’ compensation. For reasons of federalism there has been a tradition of allowing states to govern their own workers’ compensation systems, supplemented by a wide range of federal workers’ compensation systems ranging from Federal Employees Liability Act (FELA).1 Black Lung Amendments for the benefit of coal miners, administered by the United States Department of Labor, Longshoring and Maritime industries, a host of state and county programs covering the injuries and illness experienced by public employees, and of course, large-scale programs within the military armed forces of the United States. In sum, there are perhaps between 60 and 70 different, sometimes competing, systems of workers’ compensation in place in the United States at any time of the year. The need to assert the individual power of states rights, moreover, has never been successfully harnessed to heed to a call for harmony among the various programs. Thus, there are vast differences in coverage, duration of benefits, size of benefits, types of illnesses and types of work covered, and the quality of medical care from one state to another. Sometimes, in fact gaming the system to attract employers to a given jurisdiction is common between neighboring states. As a result, the workers’ compensation is inconsistent and unpredictable from state to state, although never rising to such a level of inconsistency to impermissibly burden interstate commerce. If such constitutional claims were made, it would be likely to result also in a conflict among the circuits that would ultimately have to be resolved by the U.S. Supreme Court with a definitive declaration of the need for national federal legislation. Until such time, however, the increasing complexity of this non-system leaves employers and workers alike in a quandary, regardless of whether the employees are organized in a trade union and regardless whether the employer is large or small, and across different types of industries.
1:40. Three Agencies created by OSH Act– Occupational Safety and Health Administration (OSHA), National Institute of Occupational Safety and Health (NIOSH) and Occupational Safety and Health Review Commission (OSHRC)
OSHA
The Occupational Safety and Health Administration (OSHA) is the agency delegated authority by the Secretary of Labor to promulgate standards for safety and health and to enjoy
42
Terminix Intern., Inc. v. Secretary of Labor, 92 S.W.3d 743, 747 (Ky. Ct. App. 2002) (citing Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235, 122 S. Ct. 738, 151 L. Ed. 2d 659, 19 O.S.H. Cas. (BNA) 1721, 2001 O.S.H. Dec. (CCH) P 32515, 2002 A.M.C. 305 (2002)); see §1:113 (discussing Chao v. Mallard Bay Drilling).
1
Federal Employers’ Liability Act (FELA), §§1 et seq., 35 Stat. 65 (codified 45 U.S.C.A. §§51 et seq.); see §1:163 (for a discussion of FELA).
oversight of inspection and enforcement. New standards are promulgated by OSHA after a notice and comment rulemaking procedure. The time from the outset of NIOSH studies to the final rule printed in the federal register may be very long; OSHA’s rulemaking process itself may take two to five years from the proposed rule until the publication of a final standard in the Federal Register. Litigation invariably follows after OSHA rulemaking. OSHA standards may be challenged in the federal courts and citations based on these standards may be challenged first before OSHRC and then in the federal courts, including the U.S. Supreme Court. Interested parties may join such litigation at each level of appeal and OSHA’s litigious history is replete with multi-party cases featuring several intervenors.1 There have been major cases at each phase of OSHA’s standard-setting process. For this reason, the next section examines in greater detail OSH Act’s statutory provisions, first as interpreted by the courts and second in tandem with a short review of occupational safety and health provisions of leading labor and public health laws under the OSH Act’s preemption clause. The first OSHA case to reach the U.S. Supreme Court, Atlas Roofing,2 outlined in great detail OSH Act’s internal administrative law process, including the methods for determination and for appeal of decisions by the Occupational Safety and Health Review Commission. That process is linked to OSHA rulemaking and to scientific research by the National Institute for Occupational Safety and Health.
1:40 A OSHA Inspection and Enforcement Powers
OSHA is responsible for promulgating and enforcing occupational safety and health standards. OSHA standards may set forth the required conditions, approaches, practices, methods, or processes reasonably necessary and appropriate to protect workers on the job. Effective April 28, 1971, the OSH Act granted the Secretary of Labor the authority to promulgate safety and health standards, inspect worksites, issue citations with monetary and other penalties, and take any measures “necessary” or “appropriate” to enforce occupational safety and health protections in the United States. OSHA’s responsibilities are formidable. When the Act was debated in Congress, during the years 1968 and 1969, it was expected to cover 57 million workers. The number of employees covered by OSHA’s statutory mandate has grown markedly since then.3 Employers today have a statutory duty to become familiar with the standards that apply to their enterprise and to ensure that needed engineering controls, protective gear, training in the handling of toxic and hazardous materials, and relevant medical protections are available to each employee.
Section 8(e) of the Act describes authority to inspect working conditions and confer rights upon employees or their representatives to be present during OSHA inspections.4 OSHA’s right of entry has withstood challenge in the U.S. Supreme Court, although OSHA can be
1An intervenor is a person who voluntarily enters a pending lawsuit because of a personal stake in it, although they are not a named party as either plaintiff ir defendant in the exisiting litigation. Black’s Law Dictionary 826 (7th Ed 1999).
2Atlas Roofing Co., Inc. v. Occupational Safety and Health Review Com’n, 430 U.S. 442, 97 S. Ct. 1261, 51 L. Ed. 2d 464, 5 O.S.H. Cas. (BNA) 1105, 1977-1978 O.S.H. Dec. (CCH) P 21615 (1977).
3OSHA jurisdiction covers a small fraction of the working population in the United States. OSHA jurisdiction is limited by many exclusions described in the chapters which follow. See 29 U.S.C.A. §653(b).
429 U.S.C.A. §657.
compelled to meet administrative warrant requirements.5 The decision whether to refuse OSHA entry without a warrant is, however, a tactical question that requires weighing the possible benefits of delaying the inspection process against the impact of requiring the warrant upon the employers’ relationship with the agency.
In general, the types of information that an enterprise can reasonably expect an OSHA compliance officer to examine and record during an inspection includes, but is not limited to:
(1) the name of the corporate owner of the plant;
(2) its address;
(3) OSHA region and area office responsible for the inspection;
(4) number of employees in the plant;
(5) number of employees affected by the inspection;
(6) plant’s four digit code (which identifies its major products);
(7) date of inspection;
(8) type of inspection
a.. accident;
b.. complaint;
c.. general scheduled (in other words whether it had been planned by OSHA according to an administrative agenda); and
d.. follow-up;
(9) whether the plant employees are members of a union;
(10) duration of the inspection; whether management was provided with advance warning of the inspection;
(11) whether an employee accompanied the compliance officer during the plant inspection;
(12) OSHA violations (if any) and the seriousness thereof;
(13) toxic substances and harmful agents found;
(14) noise tests and the results thereof;
(15) dates of citations and the time allowed for violation abatement;
(16) modifications in the abatement date (if any);
(17) any penalties for violations; and
(18) review of material safety data sheets.
OSH Act allows investigation, including access to records of accidents and imminent dangers,6 without a warrant, if the inspection is in response to a complaint or is consistent with a rational administrative plan as discussed in the case law, or in cases involving fatalities.
5Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305, 6 O.S.H. Cas. (BNA) 1571, 1978 O.S.H. Dec. (CCH) P 22735, 8 Envtl. L. Rep. 20434 (1978).See also 29 C.F.R. §1910.20.
6Whirlpool Corp. v. Marshall, 445 U.S. 1, 100 S. Ct. 883, 63 L. Ed. 2d 154, 8 O.S.H. Cas. (BNA) 1001, 1980 O.S.H. Dec. (CCH) P 24249 (1980) (worker who witnessed coworker’s fatal fall from scaffold was in “imminent danger” if compelled by employer to perform same tasks immediately after fall, and had right to refuse hazardous work; termination of said employee was violation of 29 U.S.C.A. §660).
1:40B OSHA “Safety” and “Health” Programs
OSHA’s administrative structure is not divided based upon types of diseases or illnesses, or the duration of the incapacitating effects of particular occupational hazards. Rather, OSHA’s organizational structure at the national level follows a classic approach to statutory interpretation, it replicates the divisions of “safety” and “health” implied by the title of the statute. The Directorate of Health Standards prepares documentation and promulgates standards pertaining to health hazards which define exposure limits such as the time weighted average (TWA)8 and permissible exposure limits (PEL)9 for a variety of toxic substances, including suspected carcinogens, physical hazards (such as nonionizing radiation), and to some extent, ergonomics. The Director of Safety’s office is concerned with approval and certification of safety equipment, such as construction scaffolding and ladders. OSHA inspection and enforcement is conducted by OSHA compliance officers in area offices that are directed on the regional level. Each region has jurisdiction over several states, following the pattern of the Department of Labor’s regional structure for other aspects of labor regulation, inspection and enforcement.
1:41 OSH Act (USA) Limits on Jurisdiction
OSH Act does not apply to worksites that are covered by concurrent legislation.10 For example, the OSH Act does not cover employees of the federal government or state or municipal entities. Moreover, the OSH Act’s preemption clause prevents OSHA from compelling compliance in worksites where other agencies enjoy jurisdiction over occupational safety and health programs or in those cases where OSHA activities might affect the common law.11 In addition, the OSH Act does not create a private right of action for individuals. Although the OSH Act jurisdiction is not limited to large-scale enterprises, in general, OSHA has a policy of targeting larger enterprises. This has lead to the misconception that the OSH Act’s coverage exempts small businesses, but OSHA’s reluctance to investigate small businesses is a matter of administrative policy, not law.
The scope of hazards prevented under OSH Act quite broad, according to case law that defines the term “recognized hazards” in Section 5(a)1. Effective OSHA compliance programs must be flexible: to foresee and prevent a very broad range of health problems. These include:
8Time Weighted Average (TWA) is the employee’s average airborne exposure in any eight-hour work shift of a 40-hour work week which shall not be exceeded. 29 C.F.R. §1910.1000(a)(5)(i).
9Permissible Exposure Limits (PEL) are the limits upon exposures, usually expressed in parts per million (ppm) that can be experienced on the average in the course of an eight-hour work shift of a 40-hour work week. 29 C.F.R. §1910.1000.
10See 30 U.S.C.A. §§801 to 960; 42 U.S.C.A. §2021; 45 U.S.C.A. §§421 to 442.
See also §1:108.
11OSH Act §4(b)(1), 29 U.S.C.A. §653(b)(1).
Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies, and state agencies acting under section 274 of the Atomic Energy Act of 1954 as amended (42 U.S.C.A. §2021), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health ….
effects from indoor air pollution;
• hazardous conditions generated by the presence of a subcontractor or independent consultant on the employers’ premises;
• effects of acute exposures and long-term effects from hazardous materials that may be brought into the workplace temporarily; and
• potential transmission of disease to employees by members of the general public through employment or emergencies such as natural disasters and bioterrorism.
Current emphasis on passive smoking provides one example of a potential occupational health problem that was not viewed as important in the early years of OSHA’s existence, but has gained prominence as more epidemiological information has come to light.12 Similarly, the potential for occupational transmission of Acquired Immune Deficiency Syndrome (AIDS) in laboratories and among health care workers13 has brought increased awareness of occupational transmission of all bloodborne disease. This raises questions regarding the work-relatedness of many types of communicable and infectious diseases14 which were not previously included in the rubric of occupational safety and health laws. Without any statutory language to limit the scope of the term “recognized hazards” it is prudent to presume that protection against any hazards in the workplace or closely associated with the work of a given enterprise are subject to OSHA enforcement, and should be part of compliance programs.
1:42. Three Agencies created by OSH Act– National Institute of Occupational Safety and Health (NIOSH)
Section 22 of OSH Act established the National Institute of Occupational Safety and Health (NIOSH)1 to develop expertise in occupational health.2 NIOSH, the Occupational Safety and Health Administration (OSHA), and the Occupational Safety and Health Review Commission (OSHRC) can work independently throughout the research, standard-setting, and
12 Occupational Safety and Health Administration, Proposed Regulations for the Identification, Classification and Regulations of Carcinogens (Cancer Policy 1975, revised 1979-1980).
13 Vladhov & Polk, Transmission of Human Immunodeficiency Virus Within the Health Care Setting: 2 Occupational Medicine: State of the Art Reviews (No. 3, July-Sept. 1987).
14 Ilise Feitshans, Confronting AIDS in the Workplace: Balancing Employment Opportunity and Occupational Health Under Existing Labor Laws, 1989 Det CL Rev, at 953-985 (Issue 3 1990). See also OSHA Occupational Exposure to Bloodborne Pathogens, 56 Fed. Reg. 23043, 29 C.F.R. §§1910.1030 et seq. Laboratory and health care workers were, in general, previously excluded in practice from OSHA compliance but are presently undergoing greater scrutiny.
1See 29 U.S.C.A. §671(a), (c); S. Rep. No 1282, 91st Congress, 2d Sess. 19 (1970); H.R. Rep. No. 1291, 91st Congress 2d Sess. 27 (1970).
2Recognizing the inadequacy of then-state-of-the-art medical research regarding health effects and the impact of exposure to occupational health hazards, Senator Jacob Javits introduced the Institute for the purpose of “to attract the qualified personnel necessary to engage in occupational health and safety research … which will more easily attract the substantial increase in funding which will be necessary to achieve the purposes of this Act.”
adjudicatory process. NIOSH conducts preliminary research into particular health hazards and develops “Criteria Documents” that outline the types of hazards and recommended exposure limits. NIOSH also prepares on-site “Health Hazard Evaluations” at the request of employees, unions, or other interested parties. In some cases, NIOSH also studies a wide variety of workplaces in large epidemiological studies. Under the OSH Act, NIOSH has statutory authority to require the employer’s participation. NIOSH studies are then folded into new information from the general public when OSHA commences rulemaking. Therefore, NIOSH holds a broad range of discretionary authority to conduct research relating to occupational safety and health, including exploration of “innovative methods, techniques, and approaches” for solving problems, investigation of new problems, including those created by new technology, and study of behavioral and motivational factors. NIOSH also has the authority to request information so that it can develop industry-wide studies of injury, illness and disease.
In addition, NIOSH has specific responsibilities in relation to OSHA standard-setting, such as:
• Production and annual publication of criteria to formulate standards
• Develop and establish recommended safety and health standards;
• Publish and maintain a list of all known toxic substance s and the concentration for toxicity (RTECS);
• Perform Health Hazard Evaluations (HHE) to investigate and determine toxicity of materials in the workplace and their synergy with other toxins or hazards in the work environment; and
• Provide informational programs on the importance and proper use of safety and health equipment, such as personal protective equipment (PPE).
NIOSH is comprised of four “coordinating centers” and the Offices of Global Health and Terrorism Preparedness and Emergency, created in order to be more responsive to chronic health conditions and new and emerging health threats.3
(1) Coordinating Center for Infectious Diseases–includes the National Center for Infectious Diseases, the National Immunization Program, and the National Center for STD, TB, and HIV Prevention.
(2) Coordinating Center for Health Promotion–includes the National Center for Chronic Disease Prevention and Health Promotion and the National Center for Birth Defects and Developmental Disabilities.
(3) Coordinating Center for Environmental Health, Injury Prevention, and Occupational Health–includes the National Center for Environmental Health, the Agency for Toxic Substances and Disease Registry, the National Center for Injury Prevention and Control, and the National Institute for Occupational Safety and Health; and
(4) Coordinating Center for Health Information and Services–includes the National Center for Health Statistics, a new National Center for Health Marketing, and a new National Center for Public Health Informatics.4
3 Press Release, CDC, CDC Announces New Goals and Organizational Design (May 13, 2004), available at http://www.cdc.gov/od/oc/media/pressrel/r040513.htm (last visited Apr. 13, 2005). See CDC, Reorganization of CDC Units: Why CDC Is Changing (last updated Aug. 20, 2004), available at http://www.cdc.gov/futures/od_options/index.htm (last visited Apr. 13, 2005).
4Press Release, CDC, CDC Announces New Goals and Organizational Design (May 13, 2004),
1:42.A National Institute of Occupational Safety and Health (NIOSH)– Considerations of nanotechnology: Power to create Recommended Exposure Limits (“RELs”) for risks viewed as “recognized hazards”
In February of 2011, NIOSH held public hearings on “Whether the hazard identification, risk estimation, and discussion of health effects for carbon nanotubes and nanofibers are a reasonable reflection of the current understanding of the evidence in the scientific literature.”1
The issues raised by nanotechnology are new, but not as novel as they may at first seem. The notion of embracing new technology and regulating the development of that new technology by regulating in face of risk was a recurring phenomenon in the twentieth century. Then, so called “big science” confronted risks from nuclear energy development, genetics, large scale agricultural revolution, and astrophysics, in order to bring new benefits to humankind. There are lessons to be learned from these precedents: significantly, scientists, lawyers, stakeholders and policymakers can work together to incubate new industries that surround the application of new technology, and with remarkably low risk to the population. When such stakeholders form a critical mass of political will, their collective societal efforts can succeed to get it right by promoting the growth of new industries while minimizing the risk to the society at large. In this context, NIOSH plays a crucial role, defining the parameters of unquantifiable but foreseeable risk and suggesting the precautionary measure to prevent risk, which in turn make both the insurability and applicability of new technology technologically and economically feasible. NIOSH’s understanding of “recognized hazards” and the ability to carefully outline the contours of precautionary practices is vital to the development of new technologies, such as the use of carbon nanotubes and nanofibers. Because NIOSH was created under OSH Act2 to perform a very special job, its mission and its outstanding reputation for reliable and accurate methodology in hard science, NIOSH defines the meaning of the terms “prevention,” “risk,” and “recognized hazards” among the scientific community concerned with industrial hygiene, safety engineering, occupational medicine, risk management and public health. NIOSH has been assigned this unique role by the Congress when it was created in OSH Act section 21(c): it “shall (1) provide for the Establishment and supervision of programs for the education and training … in the recognition, avoidance and prevention of unsafe or unhealthful working conditions.”
available at http://www.cdc.gov/od/oc/media/pressrel/r040513.htm (last visited Apr. 13, 2005).
1See Legal Basis and Justification: NIOSH Recommendations Preventing Risk from Carbon Nanotubes and Nanofibers, Post-Hearing Comments, Testimony on Behalf of ISRA (International Safety Resources Association) Before NIOSH, Comments Prepared by Ilise L. Feitshans (Geneva Switzerland) and Testimony Presented by Jay Feitshans, Science Policy Analyst, ISRA Draft Document for Public Review and Comment; NIOSH, Draft Document for Public Review and Comment, NIOSH Current Intelligence Bulletin: Occupational Exposure to Carbon Nanotubes and Nanofibers, Docket No. NIOSH-161-A (Feb. 3, 2011), available at http://www.cdc.gov/niosh/docket/review/docket161A/pdfs/carbonNanotubeCIB_PublicReviewOfDraft.pdf.
229 U.S.C.A. §§651 et seq.
OSH Act section 22 especially authorizes “the Institute … to: (1) develop and establish recommended occupational safety and health standards; and (2) perform all functions … under sections 20 and 21 of this Act.”
As is evidenced in the OSH Act’s legislative history and discussed in detail by Dr. John Howard, Director of NIOSH and several opinion leaders who were active in the legislative development of OSH Act in the video “OSHA 35! Still Alive!” (prepared for the anniversary of OSH Act and premiered at the Tenth NORA NIOSH Symposium in 2005),3 Congress trusted NIOSH, and only NIOSH, to have an independent budget and independent thinking to engage in robust, pathbreaking science to solve problems that impact workplace safety and health. In sum, the statutory mission requires NIOSH to look ahead and forecast occupational safety and health problems–to figure out how to prevent disasters before they happen.
Implication for OSHA enforcement
NIOSH activity in the emerging realm of workplace risks from nanotechnology is important for OSHA enforcement. Even though NIOSH statutory authority is limited to creating recommendations that lack the regulatory clout of a promulgated OSHA standard, recommended standards, or the so-called RELs, are nonetheless important tools for OSHA enforcement. A NIOSH recommendation can affect an employer’s course of action in compliance with the OSH Act because the burden is not on OSHA to prove that practical means of protection are available; rather, the burden is on the employer to comply with accepted practice in the scientific community regarding the prevention or abatement of recognized hazards.
1:42 Three Agencies created by OSH Act– National Institute of Occupational Safety and Health (NIOSH)– Statutory obligation to prevent “recognized hazards”
OSH Act requires that “Each employer 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.”1
Congress intended an expansive view of this term.2 In general, courts have interpreted this phrase to mean that a standard need not be published by OSHA in the Federal Register in order to create a duty and responsibility for safety measures and that the courts will review in order to determine the adequacy of the employer’s safety and health programs. ASARCO v.
3Digital 2000 Productions, OSHA 35 and Still Alive (Executive Producer Ilise Feitshans), available at http://www.digital-2000.com/products/OSHA-35-and-Still-Alive.html.
129 U.S.C.A. §654(a)(1). See 29 U.S.C.A. §653(b)(4); For a detailed discussion see §§1:42 to 1:44.
2See Usery v. Marquette Cement Mfg. Co., 568 F.2d 902, 5 O.S.H. Cas. (BNA) 1793, 1977-1978 O.S.H. Dec. (CCH) P 22099, 50 A.L.R. Fed. 727 (2d Cir. 1977); Nelson Tree Services, Inc. v. Occupational Safety and Health Review Com’n, 60 F.3d 1207, 17 O.S.H. Cas. (BNA) 1305, 1995-1997 O.S.H. Dec. (CCH) P 30833, 1995 FED App. 0230P (6th Cir. 1995); McKie Ford, Inc. v. Secretary of Labor, 191 F.3d 853, 18 O.S.H. Cas. (BNA) 1906, 1999 O.S.H. Dec. (CCH) P 31915 (8th Cir. 1999); Brennan v. Occupational Safety and Health Review Commission, 494 F.2d 460, 1 O.S.H. Cas. (BNA) 1623 (8th Cir. 1974). See §§1:42 to 1:44.
OSHRC was a case of first impression that addressed the applicability of the general duty clause to a “nonobvious hazard.” In that case, the term “recognized hazard” was construed to include hazards one can “taste, hear, see or smell,” as well as hazards less easily recognized by conventional testing or monitoring. Case law has expanded this responsibility so that even if an employer determines that the specified means of compliance is infeasible, it must affirmatively investigate alternative measures of preventing the hazard and implement protections anyway.3
A “recognized hazard,” exists in the workplace within the meaning of OSHA’s general duty clause4 requiring employers to furnish employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees in many circumstances that are not covered by the plain meaning text of existing 29 C.F.R. part 1910 standards. The scope of this term therefore, is not limited to a hazard that may be recognized directly by human senses without the assistance of technical instruments.5 Instead, an activity or practice may be a recognized hazard within the meaning of the general duty clause even if the particular employer is ignorant of the existence of the activity or practice or its potential for harm, if the activity is one generally recognized as hazardous in the industry.6 Furthermore, an activity may be a recognized hazard if its hazardous potential is actually known to the employer, regardless of general industry knowledge, as for example toxic substances that are used in a proprietary manner.7 If industry practice fails to take reasonable precautions against hazards generally known in the industry, courts have agreed that it may be fair to hold an employer to a standard higher than the actual custom and practice in the industry.8 The term “recognized hazards” does not encompass any condition which presents a mere possibility of seriously injuring an employee;9 instead a “recognized hazard” must be something that is likely
3Brock v. Dun-Par Engineered Form Co., 843 F.2d 1135, 13 O.S.H. Cas. (BNA) 1652, 1988 O.S.H. Dec. (CCH) P 28178 (8th Cir. 1988). See §1:41.
4American Smelting & Refining Co. v. Occupational Safety and Health Review Com’n, 501 F.2d 504, 2 O.S.H. Cas. (BNA) 1041 (8th Cir. 1974).
5American Smelting & Refining Co. v. Occupational Safety and Health Review Com’n, 501 F.2d 504, 2 O.S.H. Cas. (BNA) 1041 (8th Cir. 1974).
6Usery v. Marquette Cement Mfg. Co., 568 F.2d 902, 5 O.S.H. Cas. (BNA) 1793, 1977-1978 O.S.H. Dec. (CCH) P 22099, 50 A.L.R. Fed. 727 (2d Cir. 1977); Southern Ohio Bldg. Systems, Inc. v. Occupational Safety and Health Review Com’n, 649 F.2d 456, 9 O.S.H. Cas. (BNA) 1848, 1981 O.S.H. Dec. (CCH) P 25429 (6th Cir. 1981).
7Pratt & Whitney Aircraft, Div. of United Technologies Corp. v. Secretary of Labor, 649 F.2d 96, 9 O.S.H. Cas. (BNA) 1554, 1981 O.S.H. Dec. (CCH) P 25329 (2d Cir. 1981).
8Cape & Vineyard Div. of New Bedford Gas v. Occupational Safety and Health Review Com’n, 512 F.2d 1148, 2 O.S.H. Cas. (BNA) 1628, 1974-1975 O.S.H. Dec. (CCH) P 19378 (1st Cir. 1975).
9E & R Erectors, Inc. v. Secretary of Labor, 107 F.3d 157, 17 O.S.H. Cas. (BNA) 1903, 1995-
to cause death or serious physical harm to employees.10 Thus, a “recognized hazard” is one known to be hazardous, not necessarily by each and every individual employer, but known by taking into account the standard of knowledge within the industry, and an employer may not resist penalties by arguing it was unaware of violations or acted in good faith since the activity or practice may be recognized as a hazard even if the employer is ignorant of the existence of the activity or practice or of its potential for harm.11
For example the NIOSH Current Intelligence Bulletin regarding carbon nanotubes and nanomaterials,1 stated: “Currently there are no studies reported in the literature of adverse health effects in workers producing or using carbon nanotubes (CNT) or carbon nanofibers (CNF). The concern about worker exposure to CNT or CNF arises from results of animal studies.”2 The question of whether such hazards have been described in the scientific literature and whether potential risks are sufficiently recognized or understood to trigger statutory protections is therefore a vital first step towards planning the research to the practice phase of nanotechnology applications and for preventing risks that wise people believe exist, even when those risks are not well understood. In a rare convergence of scientific consensus that may nonetheless foretell regulatory trends for the future as globalization continues to bring together scientists and regulators from different jurisdictions, the NIOSH RELS for carbon nanotubes and nanofibers
1997 O.S.H. Dec. (CCH) P 31252 (3d Cir. 1997).
10Pancheri, Is There Light at the End of the Carpal Tunnel? Compensation for Workers with Cumulative Trauma Disorders under Theories of Accident and Occupational Disease, 35 Idaho L. Rev. 377 (1999).
11E & R Erectors, Inc. v. Secretary of Labor, 107 F.3d 157, 17 O.S.H. Cas. (BNA) 1903, 1995-1997 O.S.H. Dec. (CCH) P 31252 (3d Cir. 1997); Pratt & Whitney Aircraft, Div. of United Technologies Corp. v. Secretary of Labor, 649 F.2d 96, 9 O.S.H. Cas. (BNA) 1554, 1981 O.S.H. Dec. (CCH) P 25329 (2d Cir. 1981); McKie Ford, Inc. v. Secretary of Labor, 191 F.3d 853, 18 O.S.H. Cas. (BNA) 1906, 1999 O.S.H. Dec. (CCH) P 31915 (8th Cir. 1999); Titanium Metals Corp. of America v. Usery, 579 F.2d 536, 6 O.S.H. Cas. (BNA) 1873, 1978 O.S.H. Dec. (CCH) P 22969 (9th Cir. 1978); National Realty & Const. Co., Inc. v. Occupational Safety and Health Review Commission, 489 F.2d 1257, 1 O.S.H. Cas. (BNA) 1422 (D.C. Cir. 1973). See also U.S. v. B & L Supply Co., 486 F. Supp. 26, 8 O.S.H. Cas. (BNA) 1125, 1980 O.S.H. Dec. (CCH) P 24541 (N.D. Tex. 1980).
1NIOSH, Draft Document for Public Review and Comment, NIOSH Current Intelligence Bulletin: Occupational Exposure to Carbon Nanotubes and Nanofibers, Docket No. NIOSH-161-A (Nov. 2010), cdc.gov/niosh/docket/review/docket161A/pdfs/carbonNanotubeCIB_PublicReviewOfDraft.pdf.
2According to Dr. Diana Boraschi, Institute of Biomedical Technologies, ITB-CNRPisa, Italy ““the fact that animal experimentation does not necessarily predict effects on human health. They may be however taken as indication that caution should be applied in handling the materials.””
also reflect the activity and concerns of leading authorities around the world. For example, Swiss, UK and European Union international opinion leaders agree with NIOSH that nanotechnology holds unknown but inherent risks for workplace exposure and also for consumer interaction. For this reason the Swiss government has published its Precautionary Matrix,3 even though it also wishes to foster and promote the development of new applications for nanotechnologies. Consistent with NIOSH concerns, Swiss authorities have also begun a cautious endeavor of regulatory action. According to the nanotechnology implementation strategy from the Swiss National Science Foundation, “Physically confining materials at the nanoscale alters the behaviour (sic) of electrons within them, which in turn can change the way they conduct electricity and heat, and interact with electromagnetic radiation. Moreover, materials engineered at the nanoscale can enter into places that are inaccessible to larger materials, and can therefore be used in new ways. These behaviours (sic) also have potential consequences on the abilities of synthetic nanomaterials to cause harm in novel ways.”4
Similarly consistent with NIOSH concerns, according to the Royal Commission on Environmental Pollution of the United Kingdom, “the governance of emerging technologies … pose[s] serious constraints on any regulator. First is the condition of ignorance about the possible environmental impacts in the absence of any kind of track record for the technology. Second is the condition of ubiquity–the fact that new technologies no longer develop in a context of local experimentation but emerge as globally pervasive systems–which challenges both trial-and-error learning and attempts at national regulation.”5. Therefore, the NIOSH model created especially for applying nanotechnology to a wide variety of workplaces, will likely use this recommended exposure limit for carbon nanotubes and nanofibers as precedent. In addition, many bench scientists conducting cutting-edge research in leading laboratories do not fit the traditional concept of a worker experiencing workplace exposures that impact personal well-being or public health. This new population of workers includes a much higher percentage of women of childbearing-age than previous generations, and highly trained doctoral level scientists who are not ordinarily subjected to medical surveillance and related personal protective equipment prevention systems.
It must be noted that, after forty years of occupational health enforcement and regulation, few such unrecognized circumstances may exist in practice. Furthermore, new technologies, such as, but not limited to, nanotechnologies involve the use of hazardous substances in industry that are inherently the source of precaution within the scientific community. For example, titanium
3Swiss Federal Department of Home Affairs DHA, Swiss Federal Administration, Precautionary Matrix for Synthetic Nanomaterials, available at http://www.bag.admin.ch/themen/chemikalien/00228/00510/05626/index.html?lang=en.
4Swiss National Science Foundation, Opportunities and Risks of Nanomaterials Implementation Plan of the National Research Programme, NRP 64 (Oct. 6, 2009) (Berne).
5Royal Commission on Environmental Pollution, Chairman Sir John Lawton CBE, FRS, Twenty-Seventh Report: Novel Materials in the Environment: The Case of Nanotechnology, Presented to Parliament by Command of Her Majesty &p;1.43 (Nov. 2008).
dioxide is a dangerous material whether in its normal industrial use or at the synthetic nanoparticle level. Therefore, employers in such cutting-edge high-technology industries have been eager to participate in rulemaking and the creation of regulatory frameworks in partnership with leading national and international governmental agencies (such as, but not limited to, NIOSH, FDA, CPSC, OECD, WHO and FAO). Additionally, many corporate allegiances have developed a small cluster of trade association support groups that have published or publicized best practices and guides to safe workplaces on their own. NIOSH is not a regulator or enforcer, it is the voice of reason safeguarding the life and health of everyone who works–from the boardroom to the mailroom, from the CEO to the domestic worker using harsh chemicals to clean his house, from the diplomat to the foreign migrant, possibly undocumented who needs accurate chemical information and urgent care in the event of accidental spills that jeopardize their health; from the Director of Coca Cola to the factory worker in the bottling plant who comes into contact with food additives and new plastics that use nanotechnolgy, from the Nobel Laureate scientist to the lab technician at the bench using carbon nanotubes to research and develop new nanomedicines that will benefit all mankind. In essence, this research by NIOSH is essential to protecting the public health as much as it is about looking at the narrow scope of preventive measures for risk management among workers. The NIOSH mission therefore concerns preserving the work, health and survival of all workers. NIOSH must also look at the impact on children of exposed populations, and look for the impact in the epidemiology of older workers and vulnerable populations, following Ramazzini’s the 18th Century advice: Physician, ask your patient first, “What is your work?”
142. A Medical screening and surveillance Regarding Nanoparticle exposure
It is not possible to overstate the importance of medical surveillance in this context. Basic sound occupational medicine and industrial hygiene practices, such as, but not limited to: screening and sound, on-going and accessible medical care services for workers who face a variety of unquantified risks from novel nanotechnology exposures take on greater importance in light of uncertainty. Although it may be premature for NIOSH to recommend specific procedures for occupational exposure, in reality such baseline data must be collected and that infrastructure for such precautions must be encouraged to develop along side the research and development of industrial and pharmaceutical applications of nanotechnology. The evidence summarized in the NIOSH documentation therefore leads to the conclusion that workers occupationally exposed to CNT and CNF may be at risk of adverse respiratory effects. These workers may benefit from inclusion in a medical screening program recommended to help protect their health.
In addition to existing programs for worker health as may be created by the employer in compliance with existing occupational health and safety laws, NIOSH is exploring whether people who have an occupational exposure to carbon nanotubes and nanofibers should have regular screenings at least once a year, using the most recent accepted best practices to confirm the status of lung function after exposure to nanomaterials. Dr. Michaela Kendall, an expert in nanoparticle exposure and nanotoxicology from the European Centre of Environment and Human Health (University of Exeter, UK) recommends: “All secondary exposures of children (via worker exposures leading to offspring exposure or potentially intergenerational effects) should be identified and monitored. The epigenetics of environmental contaminants are currently of scientific interest and this area may expand to include effects in those exposed to CNTs/CNFs and other nanomaterials.”
In addition to any existing programs for worker health as may be created by the employer
in compliance with existing occupational health and safety laws, people who have an occupational exposure to carbon nanotubes and nanofibers should have regular screenings at least once a year, using the most recent accepted best practices to confirm the status of lung function after exposure to nanomaterials.
142.B. Nanoparticle Exposure Program oversight
Oversight of the medical surveillance program should be assigned to a qualified health care professional who is informed and knowledgeable about potential workplace exposures, routes of exposure, and potential health effects related to CNT and CNF, according to the NIOSH proposed RELs and preventive measures for implementing workplace protection.
142.C Program elements Protecting Workers Employed in nanotechnology
Until such time as NIOSH announces the approval or certification of nano-specific instruments that are reliable and replicable tests to measure the impact of CNTs on the individual worker, the medical surveillance program should make good faith efforts to capture accepted baseline data, including, but not limited to, NIOSH-certified B Reader using the standard International Classification of Radiographs of Pneumoconiosis [ILO 2000 or the most recent equivalent]. Without baseline data, it will not be possible to understand the long term impact of occupational exposure to carbon nanotubes. Such data cannot, however, serve to replace more refined instruments once they will have been developed and approved or certified by NIOSH. Furthermore, lung function may prove to be less important than recent evidence about spleen and liver accumulation of nanomaterials and the pseudo-allergic response of mammals to nanomaterials is emerging as a potentially important facet of nano-exposures. Liver function measurements, spleen accumulation measurements and appropriate biomarkers of exposure may be conducted (e.g. serum levels thereof), according to Dr Michaela Kendall, University of Exeter, cited above.
142.D: Worker training Regarding Unquantified Risks from Exposure to Nanoparticles
Worker training programs must comply with existing law. Therefore, in addition to discussion of the best practices for the safe handling of carbon nanotubes, nanofibers and nanomaterials containing CNTs and CNFs, and a description of the possible long-term and acute health effects, each session of worker training, in order to be considered adequate, must include a review of the key elements of worker rights to information and to follow-up those rights under the OSHA Hazard Communication Standard (29 C.F.R. §1910.1200), relevant statutes and international treaties and agreements, such as the Globally Harmonized System of Classification and Labelling of Chemicals (GHS).7 Implementation of the WHO’s International Programme for Chemical Safety (IPCS) is one component of the very complex endeavor involving over twenty-five United Nations Agencies and regional groups such as the EU, governments and individual trade organizations. This effort, called the Globally Harmonized System for the Classification and Labelling of Chemicals (GHS) has participation by the WHO under IPCS. IPCS has an established and internationally recognized leadership role in the preparation of risk assessments on specific chemicals and for developing and harmonizing hazard and risk assessment methods. These products include Concise International Chemical Risk Assessment Documents,
7Globally Harmonized System for the Classification and Labelling of Chemicals (GHS) has participation by WHO.
International Chemical Safety Cards, Pesticide Data Sheets, and Poisons Information Monographs. These resources are of particular benefit to countries that may lack high levels of toxicological expertise. IPCS promotes consistency among hazard and risk assessment products with the global system for classification of hazards, with a view to enable national governments to use these products across border by implementing the GHS at the national level.
142. E Periodic evaluation of data and screening program for Nanotechnology
“Confidentiality of worker’s medical records should be enforced in accordance with all applicable regulations and guidelines,” according to the NIOSH current intelligence bulletin regarding carbon nanotubes and nanofibers.8
The right to be provided information about the hazards, safe handling and use of dangerous materials and have access to working safety equipment is free of charge. Dr. Kendall of ISRA, an expert in nanoparticle exposure and nanotoxicology from the European Centre of Environment and Human Health (University of Exeter, UK), recommends the following approach: Vulnerable groups such as pregnant women, the elderly and others identified in the literature should be informed of the potential hazard. The right to be involved in the management and supervision of OSH measures at the workplace includes the right to be organized in a representative group that can select delegates to OSH committees; the right to regularly scheduled updates concerning information and training on hazards/risks associated to their work and the measures to prevent them; The right to be offered protection against retaliation or untoward consequences when they take action to implement those measures; The right to refuse hazardous work in case of imminent serious danger to their health and life, without retaliation. At the same time, Rights bring responsibilities. Workers must: Follow safety and health rules when using protective equipment; Participate in safety and health training and awareness-raising activities; Cooperate with their employer to implement safety and health measures; Inform their direct supervisor if they withdraw from an imminent and serious danger to their health and life, and the reasons for it.
142.F Current exposure measurement methods and challenges in measuring workplace exposures to carbon nanotubes and nanofibers
NIOSH has stated that: “Given the low density and small diameters of individual CNT and CNF structures, a mass-based sampling method may not be sufficiently sensitive to detect all CNT and CNF structures in the air at low mass concentrations. Thus, research is needed to determine the most sensitive dose metrics for estimating various health risks of exposures to CNT and CNF and to develop sampling and analytical methods corresponding to those metrics. CNT are widely accepted to be durable due to the process they undergo during synthesis in which contaminating catalytic metals are frequently removed either by high temperature vaporization or acid treatment. Neither treatment is found to significantly alter the physical structure of CNT.”9
8NIOSH, Draft Document for Public Review and Comment, NIOSH Current Intelligence Bulletin: Occupational Exposure to Carbon Nanotubes and Nanofibers, Docket No. NIOSH-161-A, 7 (Nov. 2010), available at http://www.cdc.gov/niosh/docket/review/docket161A/pdfs/carbonNanotubeCIB_PublicReviewOfDraft.pdf.
9NIOSH, Draft Document for Public Review and Comment, NIOSH Current Intelligence
Dr. Michaela Kendall,10 an expert in nanoparticle exposure and nanotoxicology, recommends the following approach: Workplace exposure measurement, by either stationary or personal measurement techniques, is a crucial part of worker protection and critical in the case of CNTs/CNFs. Mass based measurements will not suffice for nanomaterials and this is explained variously in the literature. Dr. Kendall recommends a long-term, possibly low volume gaseous collection method that deposits CNT/CNFs onto a substrate and that may be followed by a microscopic counting procedure (preferably TEM [transmission electron microscopy] or AFM [atomic force microscopy]), with parallels to the asbestos fiber identification method. If such a method cannot be identified or the scientific community do not reach consensus on an accepted method, a desk-based risk and hazard assessment of each CNT/CNF should be conducted which in particular focuses on the length of the CNT/CNF and propensity of the particular CNT/CNF of interest to occur as single fibers or small agglomerates that are capable of lung penetration. Workers/workplaces must be monitored where long CNT/CNFs with propensity to disperse as single fibers are prevalent. Worker protection from CNT/CNF exposure must be carefully considered and this may include respirators, gloves, clothing, emergency clean-up facilities, etc, depending on the classification of the CNT/CNF type.
One problem for regulators is that, in real world situations, CNTs are very often big bundles consisting of dozens to hundreds of fibres with a diameter of a few micrometers. This poses a problem on how to count them. Research regarding how to correctly count fibers contained in these bundles and how easily fibers can be released from these bundles in-vivo is in its infancy.12 The recommendations provide a comprehensive guidance to employers and workers. However, it does not address the question of dimension of CNTs and CNFs. This might be considered as a weakness because in worst-case situations (as outlined above), workers’ health might be at risk even though all recommendations were followed.
142. G. Carbon nanotubes and nanofibers: Workplace exposures, measurement, and controls
According to Dr. Diana Boraschi, Institute of Biomedical Technologies, ITB-CNRP, Italy “the fact that animal experimentation does not necessarily predict effects on human health. They may be however taken as indication that caution should be applied in handling the materials.” As presently written by NIOSH, this section provides a succinct checklist, but is premature to take the form of a road map that one can critique in detail. ISRA accepts this as a placeholder until
Bulletin: Occupational Exposure to Carbon Nanotubes and Nanofibers, Docket No. NIOSH-161-A, 7 (Nov. 2010), available at http://www.cdc.gov/niosh/docket/review/docket161A/pdfs/carbonNanotubeCIB_PublicReviewOfDraft.pdf.
10European Centre of Environment and Human Health (University of Exeter, UK).
12NIOSH, Draft Document for Public Review and Comment, NIOSH Current Intelligence Bulletin: Occupational Exposure to Carbon Nanotubes and Nanofibers, Docket No. NIOSH-161-A, 8 (Nov. 2010), available at http://www.cdc.gov/niosh/docket/review/docket161A/pdfs/carbonNanotubeCIB_PublicReviewOfDraft.pdf.
such time as NIOSH can further develop the understanding regarding the emerging risks of nanotechnolgy in general, and the potential adverse health effects on the skin, lungs and reproductive health of workers from occupational exposure to carbon nanotubes and nanofibers in particular. There are several key areas for future collaborative efforts (e.g., research, communication, development of exposure measurement and control strategies). For example, nanosafety databases involve the compilation of information not only across disciplines in the hard sciences, but also across national boundaries. Once established and up and running, these efforts must be sustained for the long-term and maintained by refreshing data and training under the auspices of on-going flexible compliance programs for occupational safety and health protections for workers exposed to carbon nanotubes and nanofibers. As noted by Hoover and Cox in their life cycle approach to safety and health programming, monitoring and developing prevention strategies for nanotechnologies is a process; one that requires diligently learning about risks. Such programs and their overarching description of safety and health precautions to be implemented in the workplace therefore cannot employ a one-shot firecracker approach that looks at a situation, arguably finds few or no problems, and then ceases to monitor the situation for evaluation of long term effect. ISRA agrees with all the measures suggested by NIOSH. Many of these concepts are well-established cornerstones of a sound occupational safety and health compliance program13 and a flexible research agenda must be reviewed periodically to refresh the program.
1:43. Agencies created by OSH Act– Occupational Safety and Health Review Commission (OSHRC): Independent adjudication agency
At the urging of Senator Jacob Javits, the legislative history of OSH Act reflects a desire to create increased confidence in the administrative agencies who were delegated the authority to protect occupational safety and health, by separating the enforcement and adjudication of citations and penalties, thereby avoiding a potential conflict of interest within the agency itself.1
Established under Sections 10(c) and 12 of OSH Act, OSHRC (often cited as “The Commission”) is empowered to hear any or all questions regarding the validity, form or appropriateness of OSHA fines, penalties and citations. The Commission does not have the authority to hear questions regarding the validity of OSHA standards; these questions must be reviewed by a federal District Court, Court of Appeals or the U.S. Supreme Court depending on the nature of the dispute and the factual circumstances in which the questions about the standard itself may arise. Commission decisions are public documents and its published opinions are available from BNA in the Occupational Safety and Health Reporter, Health Law Reporter and its own hard-bound OSHC series. These decisions are available on-line from Westlaw and other electronic legal search databases, starting with the first opinions in the 1970s. OSHRC’s three
13See Bringing Health to Work: The Nuts and Bolts of Compliance (Emalyn Press, 1997); Ilise Feitshans and Bettina Mues, Survey of Major Employers Surveyed Regarding OEM Compliance With Reproductive Health Strategies, OEM Report, OEM Press, Oct 2002
1Advocating for the creation of a separate adjudicatory body, later named the Occupational Safety and Health Review Commission (OSHRC), Senator Javits stated: ““I feel very strongly that a great element of confidence will be restored in how this very new and very wide-reaching piece of legislation will be administered if the power to adjudicate violations is in the hands of an autonomous body, more than one man, and more than in the Department of Labor itself.”” Senate debate on OSH Act of 1970 (Nov. 17, 1970), Legis. Hist 469-70.
judges review appeals on citations and have the power to affirm, dismiss, or modify penalties, or alter the schedule for hazard abatement. In addition to OSHA’s general authority to inspect and require changes in unsafe conditions, procedures, set forth in the OSH Act Section 13 to counteract imminent dangers, allow OSHA to seek an injunction to shut down unsafe plants. OSHA’s authority to require and inspect exposure records,2 and to undertake biological monitoring3 and medical surveillance4 is outlined in OSHRC regulations.
An evidentiary hearing, held before an administrative law judge (ALJ), can be appealed to OSHRC. The Commission consists of three members, appointed for six-year terms, each of whom is qualified “by reason of training, education or experience” to adjudicate contested citations and assess penalties.6 At this hearing the burden is on the Secretary to establish the elements of the alleged violation and the propriety of the proposed abatement order and proposed penalty. The ALJ is empowered to affirm, modify, or vacate any or all of these items, giving due consideration in the penalty assessment to “the size of the business of the employer,” the gravity of the violation, the good faith of the employer, and the history of previous violations.7 The ALJ’s decision becomes a final and appealable order unless within 30 days a Commissioner directs that it be reviewed by OSHRC.8 If a review is granted there will be a hearing. The Commission’s subsequent order directing abatement and the payment of any assessed penalty becomes final unless the employer files a timely petition for judicial review in the appropriate court of appeals.9 The Secretary also may seek review of Commission orders10 and, “[t]he findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive.”11 If the employer fails to pay
229 C.F.R. §1910.20.
3Biological monitoring involves testing individual employees for biological markers of known or suspected organic effects of workplaces exposures to toxic or hazardous substances.
4Occupational Exposure to 4,41Methylenedianiline (MDA), 54 Fed. Reg. 20672 (1989). Medical surveillance concerns the development of an employer-based mechanism that regularly provides periodic medical examinations for employees who are exposed to particular substances. For some substances, such as lead, MDA, and asbestos, the components of the medical surveillance program are described within OSHA’s regulations law.
6 29 U.S.C.A. §§651(b)(3), 659(c), 661, 666(i).
729 U.S.C.A. §666(i).
829 U.S.C. A. §§659(c), 661(i).
929 U.S.C.A. §660(a).
10
29 U.S.C.A. §660(b).
11
the assessed penalty, the Secretary may commence a collection action in a federal district court. There, neither the fact of the violation nor the propriety of the penalty assessed may be retried.12
OSHRC has distinct rules of evidence, as well as established case law. OSHRC litigation often resolves questions of employer’s control over the premises and working conditions. Finding that the employer has control of working conditions triggers the General Duties under the OSH Act Section 5(a)(1),13 even in the event that a specific hazard has not been discussed in a given OSHA standard. Also, the notion of control triggers liability in the event of violations or injury, even in a multi-employer worksite involving independent contractors, subcontractors or the work of offsite professionals for hire (i.e., home-workers or outsourced consultants). These issues have been the grist for the mill of the OSHRC docket, with increasing importance as the organization of work has shifted towards outsourcing, independent contractors for professional work and consultants.
1:44. Historical perspectives on OSHA regulations and implementation of the laws
In 2006, the United States of America will celebrate the 35th anniversary of the OSH Act. There have long been perpetual debates regarding whether the Act is effective, whether its administrative apparatus has prevented any workplace deaths or resulted in a reduced severity of illness or injury. The law does not, for example, allow for the expansion of OSHA jurisdiction into areas that are defined as the right of states in workers’ compensation or tort. This reduces enormously the ability of the agency to create consistent, predictable standards throughout the United States and across interstate borders. At the same time, the law also does not provide for citizen suits or individual private rights of action, as are found in many environmental statutes and civil rights statutes to prevent and punish discrimination based on age, race, sex, religion or disability. Similarly, nothing in the OSH Act allows individual citizens who witness the violation of the law to complain independently of workers; to claim on behalf of family members or injured third parties, in the name of the general public or to compel the agency to take action in the form of inspection or enforcement of citations once the actual complaint has been filed by a worker with standing. Lastly, the federal occupational safety and health laws do not provide for attorney’s fees for those who bring a successful action to enforce their rights, as are available to successful plaintiffs under discrimination laws and environmental protection statutes.
Despite the relatively limited areas of jurisprudence where the OSH Act has been allowed to develop, there has been, in the last three and a half decades a remarkable evolution in the availability and application of scientific evidence to rulemaking, enforcement and litigation, even if that has occurred at a glacial pace. This difference in the past and present jurisprudence is revealed by a functional analysis, such as: changes in the standards of evidence from the time the Act was written (when there were not many laws regulating science or using epidemiology to enforce standards and OSHA had the crude tools of ANSI/ NSC and ACGIH TLVs as so called “start-up” standards or consensus standards) in contrast to the contemporary context, in which
29 U.S.C.A. §660(a).
1229 U.S.C.A. §666(k).
13 29 USC 651
the use of scientific evidence is pervasive and highly sophisticated.1 Also of interest in the developmental history of OSHA regulations and their implementation is the role of three major policy trends and their meaning throughout the history of the OSH Act: 1) Ergonomics: why is there no ergonomics standard, what is the relationship between the OSH Act and state workers compensation systems in real life and under law; 2) The unmodified nature of the statute itself: Why have there been no reforms of the legislation from 35 years ago–is that good or bad for achieving the goals and mission of the agency?; and of course; 3) The role of demographic changes: what is the effect of ADA, HIPAA and a variety of other statutes upon the composition of the workforce and our underlying notions of what workers need in order to function and survive with safe and healthful employment and places of employment as employers assume their responsibility for working conditions? These questions will be examined closely by agency observers in the anniversary year ahead.
1:45. Teenagers at risk: Special standards for vulnerable populations
In Canada, about one-third of all workplace injuries occur to young workers aged 15-24.1 Cultural factors, such as violence in movies, television, videos, and other forms of mass media, the prevalence of drugs and guns in urban centers, and a culture of apathy and indifference feed upon the natural adolescent refusal to comprehend risk, conspiring with inexperience to place young workers at the highest risk of all subcategories of workers within their job categories.2 According to Canadian sources, adolescent workers are more likely than any other group to suffer serious injuries, according to statistics gathered by the Workers’ Compensation Boards of Canada. Due to the entry level of teenage workers, their inexperience and the short duration of their employment this is a difficult population to reach. Investigations consistently find injuries caused by lack of training.3 This is an area however, where an embedded compliance program can really shine. For additional guidance on compliance and safety issues for teenage workers, OSHA has a teenager and “youth” workers initiative for educational outreach.4
1See Tee Guidotti & Susan Rose, Science on the Witness Stand, OEM Press.
1Canadian Centre for Occupational Health and Safety (CCOHS), Job Safe Canada, available at http://www.jobsafecanada.ca/en/default.html (web site outlines job hazards by occupation, worker rights, and responsibilities, and offers information and extensive links to safety organizations; also contains sobering stories of young workers injured and killed on the job activities); see CCOHS, Liason: A Newsletter for the Users of CCINFO 4 (Spring 2003); see also CCHOS, Canada’s National Occupational Health & Safety Resource, Young Workers Zone, available at http://www.ccohs.ca/youngworkers/.
2Valerie Weadock, The Young and the Reckless? Injuries and Death Often Occur When a Teen is Performing a Task Prohibited by State or Federal Laws, Occupational Health and Safety Magazine (2003).
3OSHA Investigating Teen Camp Counselor’s Death, KATU News (Aug. 8, 2003) (Oregon’s OSHA is investigating the death of a 16-year-old camp counselor who died while attempting to fire a canon at a flag ceremony. Investigators will be looking at possible manufacturing defects, procedures, maintenance, and training) (on file with author).
4See U.S. Dep’t of Labor, OSHA, Teen Workers osha.gov/SLTC/teenworkers/index.html; U.S.
1:45 A Young Workers with Disabilities
Young workers with learning disabilities such as, autism and neurological impairments are entering the workforce in unprecedented numbers, due to the path breaking changes in discrimination legislation from the late twentieth century.5 The presence of more workers with disabilities will change the nature of many job descriptions,6 in that only the “essential functions” will be relevant and jobs will be customized to the workers’ abilities. This holds important implications for job design and job hazard analysis and occupational epidemiology in that new strategies for training will be necessary, often multisensory in nature. Providing for anticipated reasonable accommodations for people with disability will be a great challenge for a new generation of epidemiologists and occupational health scientists.
1:46. Places of employment– Academia
Academia is one of many bastions that has allowed a class-colored lens to be used when viewing “occupational safety and health.” But occupational death can happen regardless of position; Presidents of colleges and their administrators are as likely as anyone to suffer occupational stress and recent articles from The Chronicles of Higher Education brought forth new awareness of the need to look within the Ivy towers of academia to find occupational safety and health hazards.1 Although not exempted from occupational safety and health laws,
Dep’t of Labor, OSHA, Youth2Work: Wage and Hour: Youth Rules!, youthrules.dol.gov/ (for federal and state rules).
5 Ilise Feitshans and Jay Feitshans, Walking Backwards to Undo Prejudice: Report of the US Capitol COnference, Including Disabled Students, What Works What Doesn’t (Emalyn Press 2003) as discussed in Brief Amicus Curiae February 2002, In the Supreme Court of the United States CHEVRON U.S.A. INC., v.ECHAZABAL, BRIEF FOR PHYSICIANS WHO TEACH OCCUPATIONAL MEDICINE, Dr. Mark Cullen, Yale University Medical School Department of Occupational and Environmental Medicine and Dr. Tee L Guidotti, The George Washington University Department of Occupational and Environmental Health, concurring with ACOEM
6This synopsis is from a presentation prepared for a Columbia University (NY) seminar: ““Diversity and Human Rights,”” 2007, N.Y. by Ilise L. Feitshans, JD & ScM.
1See Jeffrey Brainard, Accidents Rise on Campuses as Inspections Decline: A Chronicle Analysis Finds Serious Injuries Have Risen 41% Since the Mid-1980s, The Chronicle of Higher Education (Mar. 16, 2007). According to the article:
Key findings of the Chronicle analysis include: 1. Fewer government occupational-safety inspectors are visiting college campuses. There were 2,776 inspections from 1996 to early 2006, about 40 percent below the level in the previous 10-year period. Inspections of all types of workplaces dropped just 15 percent between these two periods. 2. Although the number of serious injuries has risen, the number of “serious violations”–conditions likely to cause death or “serious physical harm”–cited by inspectors dropped by more than half, to 2,772. 3. Most fines against colleges were relatively small, a median of $1,100, and even serious violations did not always result in fines. Over all, college campuses seem to be safer than many other workplaces. OSHA reports that, on average, 2.7 out of every 100 employees at private colleges suffered a nonfatal work-related injury or illness in 2005, the last year for which numbers were available. The national average for all industries was 4.6 per 100 workers.
Jeffrey Brainard, Accidents Rise on Campuses as Inspections Decline: A Chronicle Analysis Finds Serious Injuries Have Risen 41% Since the Mid-1980s, The Chronicle of Higher Education
enforcement against such institutions has been lax by tradition.2 It is therefore surprising that the academic community has so rarely been placed under the scrutiny of OSHA inspections, that there have been so few inspections, and that fines have been so low. Additional concerns have been raised regarding the pervasive hazards in research labs and unprotected work conducted by janitorial staff throughout many universities. One source of explanation may be the understaffing of OSHA and the flaws in the OSH Act itself. The many compromises required to pass the OSH Act are reflected in: (1) its limited jurisdiction that excludes entire populations of workers, and (2) its failure to provide private rights of action by citizens to enforce its tenets when the citizens themselves are not workers who are harmed. Since there are no currently proposed federal or state programs to address this issue, recent editorials in academic circles have suggested that Academia can be the first to raise the bar and look inside itself to answer these long-debated problems.
1:47. Multi-violation enforcement: OSHA’s egregious policy limited in Arcadian and Hartford Roofing
OSHRC limited OSHA’s ability to cite employers on an employee-by-employee basis for violations under the so-called egregious policy in two recent decisions: Secretary of Labor v. Hartford Roofing Co. As previously applied by OSHA in the cases of Arcadian and Pepperidge Farm, the 10-year-old so-called “egregious” policy fines employers for each instance of a violation or for each worker exposed to the same hazard. Under the policy, OSHA multiplies penalties on a per-employee or per-instance basis for exposure to the same hazard, to multi-million dollar penalties, or so-called “mega-fines” that were not reduced later. It also has achieved some settlements that have called for companies to implement certain safety and health measures at multiple sites, pursuant to the policy. The OSHRC in Secretary of Labor v. Arcadian Corp.1 held that the secretary is not authorized to cite employers on a per-employee basis for violations of the same hazard under the Occupational Safety and Health Act’s general duty clause Section 5 (a)(1).2 In Secretary of Labor v. Hartford Roofing Co.,3 OSHRC ruled that
(Mar. 16, 2007), available at http://www.edfacilities.org/ne/index.cfm?monthList=20.
See also Paul Fain, How Relentless Stress Claimed a Leader’s Life, The Chronicle of Higher Education A24 (Jan. 19 2007) (commenting on the death of Chancellor Denice Denton).
2Ilise L Feitshans, Letters to the Editor: Safety at Work in Academe, The Chronicle of Higher Education A55 (Apr. 20, 2007).
1Secretary of Labor, Complainant v. Hartford Roofing Co., Respondent, 17 O.S.H. Cas. (BNA) 1361, 1995-1997 O.S.H. Dec. (CCH) P 30857, 1995 WL 555498 (O.S.H.R.C. 1995).
2Arcadian Corp. was cited under the general duty clause following an explosion at the plant. OSHA proposed a $4.3 million fine against the company in 1993. The company was cited 87 times by OSHA under the general duty clause, once for each of 87 employees exposed to the allegedly violative conditions that led to the 1992 explosion. Three workers were injured in the blast. Each citation item carried a $50,000 proposed penalty, which was multiplied 87 times. A commission administrative law judge struck down 86 of the 87 items, and the legal question was appealed to OSHRC in 1994 to determine whether there existed any limit to the reach of OSHA’s egregious penalty policy under the general duty clause.
the secretary was not authorized to cite an employer on a per-employee basis under an OSHA standard governing the guarding of roofs to protect employees from falling.4
1:48. Preventive enforcement: OSHA fines auto dealer for lack of cave-in protection
In an unusual enforcement effort, OSHA moved towards preemptive enforcement by citing an auto dealership’s failure to provide cave-in protection for an employee working in a water-filled, six foot deep excavation. The citation resulted in $37,750 in fines1 for one alleged “willful” violation.2 No collapse occurred, but potential risk of death caused by the walls caving in was great.
1:49. Grain bins
Grain bin1 hazards include but are not limited to: suffocation from engulfment and entrapment, fires and explosions from grain dust accumulation, falls from heights and crushing injuries and amputations from handling equipment. Workers can also suffocate if they enter bins that do not have enough oxygen or contain hazardous atmospheres. Incidents in grain bins often result in multiple deaths because workers attempt to rescue their coworkers and then are trapped themselves. Grain bins are used to store bulk raw agricultural commodities such as corn, wheat and oats. Workers entering bins can be engulfed and suffocate if they stand on moving or flowing grain, which acts like “quicksand” and pulls workers under. Such was the case in June
3Secretary of Labor, Complainant v. Hartford Roofing Co., Respondent, 17 O.S.H. Cas. (BNA) 1361, 1995-1997 O.S.H. Dec. (CCH) P 30857, 1995 WL 555498 (O.S.H.R.C. 1995).
4 in Hartford, an OSHA citation issued against the employer was multiplied six times for the proposed penalty to reflect the fact that six employees were working near an unguarded roof edge. OSHRC found that the secretary should have cited the company only once for violation of the standard.
1Press Release, OSHA, Lack of Cave-In Protection Results in $37,750 in OSHA Fines for Hooksett, N.H., Employer (July 16, 2003), available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS _RELEASES&p_id=10322.
2OSHA defines a willful violation as one committed with an intentional disregard of, or plain indifference to, the requirements of the Occupational Safety and Health Act and regulations.
1OSHA, OSHA Issues Hazard Alerts on Dangers of Worker Engulfment and Sufocation in Grain Bins, OSHA Trade News (Aug. 17, 2011), osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=20517. Purdue University has issued a report that reveals 51 workers were engulfed by grain stored in bins in 2010 and 26 died–the highest number on record. “Suffocation from engulfment is the leading cause of death in grain bins and the number of tragedies continues to climb,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “They can be avoided if owners and operators use well-known safety measures that are proven to prevent workers from being killed or seriously injured.”
when three workers were killed in one week after they were buried in grain. Precautions include disconnecting equipment that presents a danger; prohibiting workers from walking on the grain to make it flow; providing workers with personal protective and rescue equipment; and requiring an observer outside the bin who can perform rescue operations. The wallet hazard card is an abbreviated version of the bulletin and highlights the precautions that employers must take to ensure that workers are safe when entering storage bins.2
1:50. Negotiated settlement in two parts: Paying now may have pay-back
OSHA made settlement history with an innovative approach to large fines in a case involving extremely unsafe and unhealthy living and working conditions1 by dividing the fines into two parts: the first to be paid immediately, and the second portion to be held in escrow and possibly be returned to the employer, if the employer meets the criteria set forth by an independent auditor, inspecting its compliance program at some time in the future.2 Under agreement, the employer, DeCoster Egg, agreed to pay $2 million in fines and make “significant improvements” in worker safety and health.3 DeCoster also agreed to make additional safety and health improvements over a three-year period to ameliorate working conditions, OSHA said. However, if certain conditions in the agreement were not satisfactorily met, DeCoster will be liable for the higher penalties originally proposed by the agency, OSHA said.4 The conceptual
2OSHA, OSHA Issues Hazard Alerts on Dangers of Worker Engulfment and Sufocation in Grain Bins, OSHA Trade News (Aug. 17, 2011) osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=20517.
1See BNA Occupational Safety & Health Daily, Maine Egg Farm To Pay Partial Fine, Improve Worker Safety To Avoid Full Fine, May 20, 1997.
2This unusual approach of turning a fine into a positive incentive for creating a“million dollar” in-house OSHA compliance program comes out of a case where former Secretary of Labor, Robert B. Reich accused the Maine farm of “treating its employees like animals” at a press conference announcing the initial $3.6 million in proposed fines against DeCoster egg farms on July 12, 1996, for alleged safety and health violations at its Turner, Maine, facility.
3See BNA Occupational Safety & Health Daily, Maine Egg Farm To Pay Partial Fine, Improve Worker Safety To Avoid Full Fine, May 20, 1997.
4OSHA had proposed $3,805,500 in penalties at DeCoster, according to the agency, including $3,660,500 for violations cited at the Turner egg farm July 12, 1996, additional penalties of $117,000 cited on Feb. 7, 1996, and penalties at the company’s North Leeds, Maine, feed mill cited on Feb. 2, 1996. In addition to other violations, the company was cited for exposing employees to hazards of fire, smoke inhalation, electric shock, and electrocution.
Since the employer is classified as an agricultural employer under the U.S. Department of Labor, Bureau of Labor Statistics (BLS) Standard Industrial Classification (SIC-Codes) DeCoster had not previously appeared on OSHA’s general schedule safety or health inspection targeting lists. The company has been inspected 14 times since 1976, in response to referrals, complaints, follow-ups, and one fatality, but prior to the Maine 200 program, the company had paid $2,475 in miscellaneous fines. It settled one case involving the worker who lost three fingers for $2,125
underpinning of the settlement agreement is so simple that it is revolutionary: under the agreement, an independent consultant will conduct an “unannounced, unscheduled inspection of DeCoster facilities within 12 months.”5 If less than 90% of the “previously cited conditions are in compliance” with OSHA standards, the balance of the remaining $1,805,500 in penalties became due.6
1:51. Willful violation without regard to intent: the notion that enough is enough
Kaspar Wire Works v. Secretary of Labor,1 provides some guidance on “willful violation.” As one author noted, “The decision to deny the petition for review provides important
in 1995 and is currently contesting $28,000 in proposed fines for the 1995 fatality.
5See BNA Occupational Safety & Health Daily, Maine Egg Farm To Pay Partial Fine, Improve Worker Safety To Avoid Full Fine, May 20, 1997.
6The settlement also stipulated that if OSHA proves there are specific violations in machine guarding, electrical equipment, drinking water, and worker housing. The employer also agreed to hire a full-time safety director; provide additional worker training, a bilingual employer liaison, and an independent ergonomics consultant; encourage employee participation in plant safety programs; and improve hygiene at company facilities. Also under the agreement, an independent consultant will conduct an unannounced, unscheduled inspection of DeCoster facilities within 12 months. The employer also must follow OSHA’s 1989 voluntary guidelines for safety and health management, and develop a compliance plan to implement the settlement’s provisions; provide workers training in their native language in hazard recognition and hazard communication, safety and health policies, lockout/tagout requirements, fire exits, respirator use and maintenance, personal protective equipment, machine guarding, noise exposure, communicable diseases, and how to report injuries and illnesses; provide a bilingual employee liaison to provide employees an alternative way to express safety and health concerns to management; establish medical management procedures to deal with workers’ injuries and illnesses; build a locker/shower room for workers; provide safe drinking water for all locations on the Turner farm where employees work or live; develop a plan to reduce workers’ exposure to dust and ammonia; and conduct a comprehensive ergonomics study. In a separate but related agreement with the Labor Department’s Wage and Hour Division, DeCoster also will pay back wages of $21,000 owed to workers and civil penalties of $33,000 for violations of the Migrant and Seasonal Agricultural Worker Protection Act, and violations of the Fair Labor Standards Act. Labor leaders have praised the structure of the settlement, as one that will do more to protect American workers than all the monetary agreements reached in the past, and OSHA staff has suggested that the DeCoster settlement provides a lesson in how enforcement can work. In addition, consumer action is given part credit for the employer’s willingness to negotiate with OSHA: following news reports last year about health and safety violations at DeCoster, consumers in New England brought their concerns to local supermarkets. Four supermarket chains stopped carrying the eggs.
See BNA Occupational Safety & Health Daily, Maine Egg Farm To Pay Partial Fine, Improve Worker Safety To Avoid Full Fine, May 20, 1997.
1See Kaspar Wire Works, Inc. v. Secretary of Labor, 268 F.3d 1123, 19 O.S.H. Cas. (BNA) 1561, 2001 O.S.H. Dec. (CCH) P 32479 (D.C. Cir. 2001).
insights for employers to consider when developing health and safety compliance programs. Namely, the decision provides helpful details regarding what actually constitutes a willful violation.”2 The defendant employer, Kaspar Wire Works, petitioned for review of hundreds of willful violations of recordkeeping requirements under the Occupational Safety and Health Act (OSH Act), with penalties for each violation. The court held that defendant employer’s indifference to recordkeeping requirements and inattention to accurate reporting produced a picture of working conditions that would mislead employees and OSHA concerning the true extent of the hazards, thereby perpetuating hazards to which its employees were exposed.4 When the employer appealed in Kaspar Wire, the court upheld the Occupational Safety and Health Review Commission’s (OSHRC) determination that hundreds of violations were willful even though the employer brazenly stated that it did not keep records and did not need to follow OSHA regulations, as a basis for its defense. The court therefore found that essentially, “a record of unabashed violations involving serious injuries to employees in the face of certain knowledge of what was required”6 made the fines reasonable.
1:52. Enhancing prohibitions on retaliation: Terminix v. Secretary of Labor
In Terminix International, Inc. v. Secretary of Labor,1 a Kentucky Court of Appeals held that a phone call made to the Occupational Safety and Health Administration (OSHA) by the employee’s mother, on behalf of the employee who was comatose in the hospital, was a “protected activity” for the purpose of establishing an employee’s claim of retaliatory discharge. This facet of protected activity was upheld when the employer appealed the decision of the Kentucky Occupational Safety and Health Review Commission (KOSHRC), which upheld the citation, finding an employer had discriminated against its former employee when the employee engaged in protected occupational safety and health activity. The Court of Appeals held that the: (1) Kentucky statute protecting employees from retaliation for filing of safety complaints was not preempted by Environmental Protection Agency (EPA) regulations governing pesticide workers; (2) phone call made to OSHA by employee’s mother was a protected activity even though the complaint was not made by the employee personally; (3) evidence supported the
2See Timothy Pajak, Health & Safety Compliance: Unrecorded Injuries Constitute Willful Violation, HR Wire (Nov. 26, 2001).
4 Kaspar Wire Works, Inc. v. Secretary of Labor, 268 F.3d 1123, 19 O.S.H. Cas. (BNA) 1561, 2001 O.S.H. Dec. (CCH) P 32479 (D.C. Cir. 2001) (respondent’s Brief at 58) (finding of willfulness did not require evidence of motive).
6 Kaspar Wire Works, Inc. v. Secretary of Labor, 268 F.3d 1123, 19 O.S.H. Cas. (BNA) 1561, 2001 O.S.H. Dec. (CCH) P 32479 (D.C. Cir. 2001); see also Timothy Pajak, HR Wire, Health & Safety Compliance: Unrecorded Injuries Constitute Willful Violation (Nov. 26, 2001) (noting that the violations that occurred “are those that inspire occupational health statutes to be written; When you do something wrong 382 times, there’s an element of willfulness whether or not it had a direct intent. This case stands to show the limits on employer discretion for voluntary compliance.” Kaspar Wire Works, Inc. v. Secretary of Labor, 268 F.3d 1123, 19 O.S.H. Cas. (BNA) 1561, 2001 O.S.H. Dec. (CCH) P 32479 (D.C. Cir. 2001).
1Terminix Intern., Inc. v. Secretary of Labor, 92 S.W.3d 743 (Ky. Ct. App. 2002).
finding that the employer was motivated by notice that the OSHA complaint was going to be filed when it terminated the employee; and (4) evidence supported the Commission’s finding that employer’s claim was merely a pretext for retaliation for filing of safety complaint and that the employee would not have been discharged absent the employer’s improper motivation.2
The injured employee suffered from organophosphate poisoning as the result of overexposure to termiticide used by the employer because exposure to the organophosphate “Dursban TC” rendered the employee semicomatose after the substance had splashed onto the injured employee as he sprayed it following the employer’s instructions. About a month later, the employee was released from medical care in order to return to part-time sedentary work. Claiming that no sedentary assignments were available, the employer then placed the injured employee on workers’ compensation leave for approximately 30 days so that he could recover. When the employee did return to work, his assignment prohibited exposure to organophosphates, and this restriction was used as a pretext for firing. Prior to the employee’s return to work, the employee’s mother had confronted the employee’s supervisor about the working conditions and notified him that she was going to call OSHA about the accident. In the court’s view, such a statement, followed by the filing of the complaint, established that the employer was improperly motivated by notice that the OSHA complaint was going to be filed alleging KOSHA (Kentucky Occupational Safety and Health Act) violations. Additionally, the employer frustrated the court by making specious claims that the circuit court failed to consider the entire record. The Court of Appeals rejected these arguments.
1:53. Motor vehicle deaths at work: New cross cutting area of NIOSH programming
The role of motor vehicles is a public health problem and therefore an area of particular interest to NIOSH. According to the Centers for Diseases Control and Prevention (CDC) in 1999, “Motor Vehicle Safety” ranks number two in the top 10-hits list of “Ten Great Public Health Achievements” of the twentieth century–outdone only by control of infectious diseases. “From 1925 through 197 the number of drivers increased six fold and the number of motor vehicles eleven fold.” The number of miles traveled in motor vehicles annually increased tenfold to more than 2.5 trillion. Those trends brought a new and often deadly set of risks for drivers, passengers, cyclists and pedestrians. During the past 100 years, more than 2.8 million persons have died and nearly 100 million persons have been injured on US roads and highways. By early 21st century, motor vehicles accounted for more than 90% of all transportation related deaths in the United States. Yet, through effective public health measures which included an admixture of research, application of research to practice, new legal requirements for crashworthiness of vehicles and diligent enforcement, “the number of deaths for every 100 million vehicle miles traveled fell by 90% from 1925 (17 per 100 million) to 1997 (1.7 per 100 million).”1 Deaths per 10 thousand registered vehicles declined by 94% despite the exponential increase in the number of vehicles registered, miles traveled and the number of drivers on the roads. Yet, motor vehicle deaths account for approximately 43,000 deaths annually in the United States.
Motor Vehicles as a Major Source of Occupational Accidents and Expensive Long-Term Health Problems
2Terminix Intern., Inc. v. Secretary of Labor, 92 S.W.3d 743 (Ky. Ct. App. 2002).
1Law in Public Health Practice 9 (E. Hoffman et al., ed., Oxford University Press, 2007).
NIOSH has recently noted the high number of motor vehicle deaths in retail trades compared to the more notorious fatalities from workplace violence, especially in late night retail settings.2 Preventing motor vehicle death is not easy; however, because of there is no coherent methodology for collecting and analyzing the data involved.3 Furthermore, each state regulates the basic rules of the road and requirements for commercial vehicle drivers separately,4 thus preventing the creation of a unified database and hampering any efforts to make meaningful comparisons across several states.5 Lastly, it would be simplistic to ignore the unusually important role played by non-occupational factors in motor vehicle hazards and their prevention compared to other areas of occupational health and safety.6 Unlike other facets of occupational health and safety, driving and commercial transportation is one of the few areas where employers have remarkably little control over working conditions. Even the best trained, healthy and alert drivers encounter risks created by mechanical failures, poor road conditions, difficult or unusual weather conditions, or third party failures such as drunk or drug-using drivers with whom they share the road. No other facet of occupational safety and health programming is shaped as much by contact with the general public, often at the whim of conditions such as weather, pavement and roadway conditions, detours due to emergencies or hazards or accidents created by other vehicles, and many circumstances beyond the employer’s control which would not be considered an important variable in trades such as, for example, mining or manufacturing. Since drug use and alcohol consumption are important variables, even if drugs are prescribed as medication or available over the counter for simple colds or flu. Such variables influence the ability of any driver, regardless of whether the employee was within the employer’s control.
1:54. Reproductive health hazards
In the past, OSHA has promulgated §6(b) health standards after an observed increase in the incidence of occupational illness and death resulting from exposure to particular toxic substances in the workplace. In a dramatic departure from this precedent that is noteworthy for in-house OSHA compliance programming, regardless whether reproductive toxicants are involved, OSHA has taken a remarkably prospective and pro-active view of the issues that will be considered for future regulation. Yet, to date, there is only speculation and unclear direct
2. NIOSH, Work-related Roadway Crashes Prevention Strategies for Employers, available athttp://www.cdc.gov/niosh/docs/2004-136/.
3National Highway Traffic Safety Administration, State and National Fatality and Injury Data, available at http://www.nhtsa.com/people/Crash/crashstatistics/index.htm.
4National Center for Statistics & Analysis, available at http://www-nrd.nhtsa.dot.gov/departments/nrd-30/ncsa/.
5
OSHA, Guidelines for Employers to Reduce Motor Vehicle Crashes, available at http://www.osha.gov/Publications/motor_vehicle_guide.html.
6NIOSH, Work-Related Roadway Crashes–Challenges and Opportunities for Prevention, available at http://www.cdc.gov/niosh/docs/2003-119/.
human evidence of adverse reproductive and developmental effects from occupational settings. This, in large part, is due to difficulties in conducting epidemiological studies1 to detect adverse reproductive and/or developmental outcomes.2 OSHA, like EPA and other federal agencies, has applied a basic tenet of toxicology: if an agent produces adverse effects in experimental animals, it is likely to pose potential hazards to humans.3 Thus, OSHA has used experimental studies in mice, rats, and rabbits as evidence of reproductive and/or developmental toxicity for humans.4 In addition, the National Institute for Occupational Safety and Health (NIOSH) recently proposed a five-part series of studies on the potential adverse reproductive effects of chemical and physical agents on women in the workplace. The first of these studies will focus on female flight attendants employed by commercial airlines who are potentially exposed to ionizing radiation and disruption of circadian rhythms.5 The proposal has been submitted to the Office of Management and Budget for review.6
In this context also, OSHA unsuccessfully attempted to bring an enforcement action
1Epidemiology is the“study of the distribution and determinants of disease frequency in human populations.” Henneken & Buring, Epidemiology in Medicine 3 (1987). The classic reference on the general subject of epidemiology is MacMahon & Pugh, Epidemiology (1970). For a more recent and comprehensive introduction to this field, see Rothman, Modern Epidemiology (1986). A good single volume review of the epidemiology of occupational disease is Monson, Occupational Epidemiology (2d ed., 1990).
2Adverse outcomes or endpoints, such as early embryonic loss or spontaneous abortions, are difficult to measure in humans. Some reproductive outcomes are rare and will only be observed when a large population is studied. The difficulty in finding sufficiently large study populations is compounded by other factors. Marital status, education, age, use of birth control, or prior reproductive history affect couples’ ability or attempts to have children and thus the number of outcomes available for study. Different types of effects may occur at different exposure levels. Finally, multiple endpoints may result from exposure to a single toxicant. See Baird & Wilcox, Effects of Occupational Exposures on the Fertility of Couples, 1 Occupational Medicine: State of the Art Reviews 361-374 (July-Sept. 1986).
3Davidson et al., Biological Basis for Extrapolation Across Mammalian Species, 6 Reg Toxicology & Pharmacology 211-37 (1986).
4Evidence of reproductive and developmental toxicity supported the promulgation of health standards for lead, 58 Fed. Reg. 35,512, 35,616 (1993), DBCP, 58 Fed. Reg. 35,076, 35,263 (1993), cadmium, 57 Fed. Reg. 42,102 (1992), and most recently, the proposed standard for glycol ether, 58 Fed Reg 15,526, 15,534 (1993).
561 Fed. Reg. 60288 (Nov. 27, 1996). Exposure will be estimated from company personnel records containing demographic and work history information and from telephone interviews relating to reproductive history and other factors (e.g., cigarette smoking) that may influence reproductive function.
6OSH Daily (BNA) (Dec. 18, 1996).
against the employer, American Cyanamid. There, the employer had compelled women to undergo surgical sterilization as a condition of employment, or their could not retain or obtain employment in the inorganic lead pigments department of their Willow Island facility.7 At the time of that case, there was little evidence to support the theory that reproductive health hazards could be prevented or were so pervasive that the subject should therefore cause widespread concern to the extent that their magnitude has been recognized, two decades later. Thus, OSHA lacked a scientific basis to prove the occupational origins of the reproductive risks, the need for risk assessment to determine the scope of appropriate protections or the relevant high-risk populations, or the feasibility of more preventive, less invasive alternatives. Therefore, OSHA was not able to prove that the employer had violated the general duty clause, §5(a)(1) of the OSH Act,8 or that exposure that impaired functional capacity and the requirement that female applicants show their surgical scar as was noted in corporate medical files was an ongoing violation of the law.9 Justice Bork, reasoning for the majority, found that the five women who underwent such surgery to keep their jobs did so voluntarily, in facilities off the company premises, and that such matters of personal “choice” regarding personal reproductive capacity were beyond the scope of employment.10 An uneven international consensus exists regarding the importance of providing for primary care,12 safe and healthful employment, recording of
7American Cyanamid was not the only employer engaged in this practice. Bunker Hill smelting of Kellogg, Idaho had a similar policy, which was the subject of an unsuccessful EEO action and was also investigated by NIOSH. Comments by Ilise Feitshans in the conference session;“Women’s Perspective on Occupational Health” 14th National Conference on Women and the Law, Washington, D.C., April 7-10, 1983.
8 When the US Supreme Court later examined this question it unanimously determined that requiring women to be sterilized to keep their jobs constituted sex discrimination in violation of the Civil Rights Act, despite the employer’s concerns about occupational safety and health. Jack Levy, Ilise Feitshans and John Kasdan, Brief Amicus Curiae, July 1990, In the Supreme Court of the United States IUAW v. JOHNSON CONTROLS on Brief for Behalf of the Industrial Hygiene Law Project, Columbia University School of Law
9 Oil, Chemical and Atomic Workers Intern. Union v. American Cyanamid Co., 741 F.2d 444, 11 O.S.H. Cas. (BNA) 2193, 1984-1985 O.S.H. Dec. (CCH) P 27035, 14 Envtl. L. Rep. 20806 (D.C. Cir. 1984).
10Oil, Chemical and Atomic Workers Intern. Union v. American Cyanamid Co., 741 F.2d 444, 11 O.S.H. Cas. (BNA) 2193, 1984-1985 O.S.H. Dec. (CCH) P 27035, 14 Envtl. L. Rep. 20806 (D.C. Cir. 1984).
12As discussed in the WHO Declaration at Alma-Alta on Primary Care. In the so-called Alma-Alta Declaration, WHO launched an international campaign widely know as “Health For All 2000” which reflects a concerted international effort to improve the quality of health and the rendering of health services, especially primary care but also including occupational safety and health, throughout the world. Even though occupational safety and health does not appear within the plain language of the declaration it has been included in strategic programming, such that realization of basic health protections has also been fostered by disseminating information and
morbidity and mortality, and even the definition of “health” itself, which is reflected in many international human rights instruments.13 Yet, most international human rights instruments use the definition that was found in the WHO Constitution that was written in 1948: “a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity.”14
Under the United Nations Charter,15 nations try to “promote” economic and social advancement and “better standards of life” in Article 13.16 UN Charter Article 55 expressly notes “creation of conditions of stability and well-being” and “higher standards of living.”17 Like other
developing program strategies with the goal of achieving “Health for All 2000” under the auspices of the declaration. Consistent with the letter and the spirit of the WHO Constitution discussed above, the Alma-Alta declaration calls for“urgent action by all governments, all health and development workers, and the world community to protect and promote the health of all people of the world.” Notably, Article 1 clearly reaffirms that health … is a fundamental human right and that the attainment of the highest possible level of health is a most important worldwide social goal …Article 3,“The promotion and protection of the health of the people is essential to sustained economic development and contributes to a better quality of life and to world peace.” In addition, the conference laid the groundwork for concrete programmatic strategies, to achieve these goals. Implications for occupational safety and health directly related to Alma-Alta implementation: occupational health facilities are a part of both, regional and international strategies. The Pan-American Health Organization, (PAHO) provides one example of regional activities that follow WHO’s Plan of Action,“Health for All 2000: Strategies””: occupational safety and health concerns are included the development of training institutes and the development of health programs.
13See the UN Charter, UDHR, IESCR, ILO Constitution and WHO Constitution.
14 Frank P Grad, “with the assistance of” [sic] Ilise Feitshans, Article 12–Right to Health, in Hannum & Fischer, U.S. Ratification of the International Covenants on Human Rights American Society of International Law, Washington, D.C. (1992) at 206-207.
15United Nations Charter, (henceforth UN Charter), signed June 26, 1945, entered into force October 24, 1945. Center for the Study of Human Rights, Twenty Five Human Rights Documents Columbia University 1994. The Preamble alludes to subsequent economic and social rights protections, by resolving “to promote social progress and better standards of life in larger freedom … to employ international machinery for the promotion of economic and social advancement of all peoples.”
16UN Charter, Chapter I, Article 13:;“1. The General Assembly shall initiate studies and make recommendations for the purpose of: (b) promoting international cooperation in economic, social, … and health fields, and assisting in the realization of human rights and fundamental freedoms for all.””
17UN Charter, Chapter IX, International Economic and Social Cooperation, Article 55. This concept appears yet again in Chapter X, The Economic and Social Council (ECOSOC), Article 62.2 which enables ECOSOC to make recommendations ““for the purpose of promoting
public international instruments governing health, however, it is vague and does not expressly protect health against workplace harms.18 Without case law or literature to guide any interpretation of the term, “Security of the Person” as discussed in the Universal Declaration of Human Rights (UDHR) Article 3, the term has been viewed as providing juridical protection for the right to life, along with security of person, quality of conditions of work and quality of life. UDHR19 Article 2520 urges the achievement of an “adequate standard of living” and social services, “in the event of disability,” including occupationally related disability. Lastly, the UDHR requires that human rights protections at the worksite ensure the preservation of “human dignity,” which has implications for the implementation of programs and strategies that prevent degrading working conditions. The UDHR provides a vague but workable blueprint for international human rights activity surrounding health. The meaning and enforcement of these rights are amplified by the principles enumerated in the International Covenant on Economic, Social and Cultural Rights, Part III, Article 6 and 7b, which assures the right to “Safe and healthy working conditions.” As noted in other sections of this book, the International Covenant on Economic, Social and Cultural Rights Article 7 (ICESCR) Article 7 provides greater insight to the meaning of the term “favorable conditions of work” as applied to “Safe and healthy working conditions.”21
1:55. Reproductive health hazards– ILO report on safe maternity
In the ongoing effort to publicize and operationalize the terms of Convention 183 Maternity Protection at work, and to promote employment of women of reproductive age and childbearing capability, the International Labour Office (ILO) presented at the Women Deliver Conference in London, October 18-20, 2007.1 Women in the workplace: New ILO report2 highlights how action in the world of work can help reduce maternal deaths and reviews the
respect for, and observance of, human rights and fundamental freedoms for all.””
18For example, Articles 23 and 25 of the Universal Declaration of Human Rights, concerning the right to work in “favourable conditions of work” are not actually defined.
19 The UDHR, which is not technically law, alludes to occupational health protections, in Article 23, Section 1, “Everyone has the right to just and favorable conditions of work.”
20
UDHR Article 25, “Everyone has the right to a standard of living adequate for the health and well-being of himself, [sic] and his [sic] family, including … medical care … and the right to security in the event of … sickness.”
21See Summers, ““Article 7”” in Hannum, et al., U.S. Ratification of the Int’l Covenants on Human Rights at 178-184.
1Coverage by Global Health TV, available at http://www.globalhealthtv.com/.
2ilo.org/global/About_the_ILO/Media_and_public_information/Feature_stories/lang–en/WCMS_084620/index.htm.
Women Deliver Conference–London–October 18-20 2007, womendeliver.org/.
progress and priorities in the world of work to ensure women’s rights to safe maternity. Every minute of every day, a woman dies needlessly in pregnancy or childbirth. With nearly 60% of the world’s women of childbearing age in the labor force in 2006, the importance of paid work in the lives of so many women makes maternity protection at work a key to safeguarding the health and economic security of women and their children.
1:56. Reproductive health hazards– Occupational exposure to opportunistic infections
In the case of Armstrong v. Flowers Hospital,1 plaintiff, fearful that occupational exposure to opportunistic infections would jeopardize the health of her unborn fetus, refused to work with an AIDS patient and was terminated from her employment. Plaintiff brought suit under Title VII alleging that defendant discriminated against her based upon her pregnancy when it required her to treat an AIDS patient or be subject to termination. Defendant’s action, plaintiff maintained, “compelled her, as a condition of continued employment, to endanger the health of her fetus.”2
Section 2000e(k) of Title VII, added to Title VII by the Pregnancy Discrimination Act of 1978 (PDA), explicitly prohibits discrimination “… on the basis of sex … because of or on the basis of pregnancy, childbirth, or related medical conditions.”3 The court found that even though the plaintiff was a member of a protected class, she was not subject to discrimination. The Flowers court stated, “the Supreme Court has noted that the PDA was not intended to provide accommodations to pregnant employees when such accommodations rise to the level of preferential treatment …. The court held specifically that, in the context of action being taken by the employer, it is the woman’s decision to make as to whether or not to subject the fetus to harm.”4 Thus, the court determined that while an employer cannot legally prohibit pregnant nurses from treating AIDS patients, the PDA does not require the employer to make accommodations to pregnant employees which amount to preferential treatment. Summary judgment was granted to the defense.
1: 57. Heat stress
In a new initiative to reduce the occupational hazards of heat stroke and heat stress, OSHA has drawn attention to the concept that the sun and warm weather of summer can also bring special hazards for those working outdoors.1 OSHA has begun a program to help
1Armstrong v. Flowers Hosp., Inc., 812 F. Supp. 1183, 61 Fair Empl. Prac. Cas. (BNA) 1321, 61 Empl. Prac. Dec. (CCH) P 42332 (M.D. Ala. 1993), judgment aff’d, 33 F.3d 1308, 65 Fair Empl. Prac. Cas. (BNA) 1742 (11th Cir. 1994).
2Armstrong v. Flowers Hosp., Inc., 812 F. Supp. 1183, 1188-1189, 61 Fair Empl. Prac. Cas. (BNA) 1321, 61 Empl. Prac. Dec. (CCH) P 42332 (M.D. Ala. 1993), judgment aff’d, 33 F.3d 1308, 65 Fair Empl. Prac. Cas. (BNA) 1742 (11th Cir. 1994).
342 U.S.C.A. §2000e(k).
4Armstrong v. Flowers Hosp., Inc., 812 F. Supp. 1183, 1191-1192, 61 Fair Empl. Prac. Cas. (BNA) 1321, 61 Empl. Prac. Dec. (CCH) P 42332 (M.D. Ala. 1993), judgment aff’d, 33 F.3d 1308, 65 Fair Empl. Prac. Cas. (BNA) 1742 (11th Cir. 1994).
1See Press Release, OSHA, OSHA Offers Tips for Working in Hot Weather (July 9, 2003),
employers and workers stay safe despite the heat, offering information that can help prevent many heat-related deaths, illnesses, and injuries. The combination of heat, humidity, and physical labor can lead to fatalities. The two most serious forms of heat-related illnesses are heat exhaustion (primarily from dehydration) and heat stroke, which could be fatal and therefore should be incorporated into in-house occupational health services that list symptoms requiring immediate attention. As a part of a greater overall policy for public outreach, the OSHA fact sheet, “Working Outdoors” offers advice on prevention strategies that will protect against exposure to ultraviolet radiation (UV), precautions to take if working in extreme heat, and how to protect against Lyme Disease and the West Nile Virus.3 The fact sheet also offers links for teenagers working at summer jobs. OSHA’s Heat Stress Card lists tips and precautions to prevent many heat-related deaths and injuries. Available in English and Spanish, this laminated fold-up card is free. It offers a quick reference about heat-related injuries, including warning signs, symptoms and early treatment. Also, “Protecting Yourself Against Harmful Sunlight” is a pocket card that explains how to perform self-examinations to detect early stages of skin cancer. The card, available in English and Spanish, also describes common physical features of skin cancer that can be caused by exposure to the sun. According to OSHA, “Summer is a time to be enjoyed, but it’s also a season that can present unique hazards to those who work outdoors or in very hot environments …. Our job is to help educate employers and workers learn how to reduce heat related illnesses and fatalities …. Simple precautions can often save lives”.2
1:58. Types of OSHA standards
OSHA Standards fall into three major categories:
• General Industry;
• Maritime (longshoring and Federal jurisdiction over waterways); and
• Construction.
Consistent with the provisions of the OSH Act, OSHA does not have jurisdiction over mining, federal employees, employees of State County and Municipal governments, and aviation. Some standards are specific to particular substances, such as lead, asbestos, or vinyl chloride. So-called generic standards, however, relate to the methodology or the particular
available at http://www.osha.gov/pls/oshaweb/ owadisp.show_document?p_table=NEWS_RELEASES&p_id=10310.
3
OSHA publications can be downloaded from the agency’s Web site at http://www.osha.gov or obtained from the OSHA publications office, Rm. N3101, 200 Constitution Ave. NW, Washington, DC 20210. More information about heat and sun hazards can be found on OSHA’s Web site, http://www.osha.gov and at the Centers for Disease Control and Prevention (CDC) http://www.cdc.gov and the National Institute for Occupational Safety and Health (NIOSH) http://www.cdc.gov/niosh.
2
See Press Release, OSHA, OSHA Offers Tips for Working in Hot Weather (July 9, 2003), available at http://www.osha.gov/pls/oshaweb/ owadisp.show_document?p_table=NEWS_RELEASES&p_id=10310.
approach to a specific problem. For example, the medical access to exposure records standard applies to all industries and all types of medical records pertaining to employee’s own exposure history on the job. The standard also grants NIOSH health professionals and other government agencies access to these records for the purpose of creating studies.
1:59. Types of OSHA standards– National consensus standards
By statute, the original sources of OSHA standards were the national consensus standards that were created by industrial trade associations and professional societies to provide minimum standards for industry. These groups include:
• The American Conference of Governmental Industrial Hygienists (ACGIH);
• The American National Standards Institute (ANSI);
• The National Safety Council (NSC); and
• The National Fire Prevention Association (NFPA).
These standards represent the minimum standards achievable and have remained influential and controversial. They have been challenged as weak, and their scientific basis has been challenged. The latter challenge came when OSHA adopted several hundred ACGIH standards in the so-called “PEL” Project. These standards also do not reflect the needs of groups that were excluded from major studies, such as women, minorities and older workers.
1:60. Types of OSHA standards– Interim standards
The term interim standard encompasses all of the “national consensus standards” from American National Standards Institute (ANSI), a nonprofit trade group, recommendations for acceptable or “threshold” levels of exposure from the American Conference of Government Industrial Hygienists (ACGIH), and similarly recognized standard-setting organizations. The ability to set forth “interim” standards expired in April of 1973.1 It is also noted that the term includes “established federal standards” under the OSH Act Section 3(10), which pertains to preexisting programs in federal agencies.2
1:61. Types of OSHA standards– Permanent standards
“Permanent standard” is an often-used term for a completed or final OSHA standard,
1See OSH Act §§3, 8.
2This is not used by the agency but is used within the occupational safety and health scientific community. See Preventing Illness and Injury in the Workplace at 224, Office of Technology Assessment (1985). In the case of the litigious second Final Rulemaking for OSHA’s lead standard, several regulations concerning the economic feasibility of engineering controls were challenged in the courts. Under United Steelworkers v. Marshall, changes were ordered in the OSHA lead regulations before they could be fully implemented. United Steelworkers of America, AFL-CIO CLC v. Marshall, 592 F.2d 693, 7 O.S.H. Cas. (BNA) 1001, 1979 O.S.H. Dec. (CCH) P 23281 (3d Cir. 1979); United Steelworkers of America, AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 8 O.S.H. Cas. (BNA) 1810, 1980 O.S.H. Dec. (CCH) P 24717, 10 Envtl. L. Rep. 20784 (D.C. Cir. 1980). In that situation, revisions that were enforced during the hiatus between the end of Steelworkers’ litigation and the completion of the revised final standard were referred to as an “interim standard” while the lead standard underwent revisions pursuant to the court’s requirements.
after that standard has undergone the rulemaking process or for a recognized, national consensus standard, such as Permissible Exposure Limits (PELs). The Secretary of Labor is mandated to promulgate such standards and to see that they are “reasonably necessary and appropriate” as well as feasible.1 From the standpoint of occupational health, a permanent standard has the force of law, even though it is not “permanent” in the strictest sense, since regulations and standards are subject to revision and modification.
1:62. Types of OSHA standards– Emergency temporary standards
OSHA is authorized under the OSH Act §6(c) to issue Emergency Temporary Standards (ETS) that require employers to immediately reduce specific occupational health hazards. OSHA has statutory authority to issue an ETS for six months in cases where OSHA does not have the time to proceed with a full-blown rulemaking due to a situation that presents a grave danger. As demonstrated in the circumstances presented by the emergency temporary standard for the substance MOCA, the legal standard of review for an ETS is “grave danger.”1 ETS is expressly discussed in the OSH Act.2 This provision enables OSHA to issue emergency standards by publishing the standard in the Federal Register, followed by a notice and comment rulemaking procedure. The provision also enables OSHA to use the text of an emergency standard as the proposed rule for the purposes of the permanent rulemaking.
1:63. Types of OSHA standards– Specifications versus performance standards
OSHA standards are unofficially divided into specification standards and performance standards. Specification standards consist of specific, technical requirements for meeting occupational safety and health compliance regulations in the workplace. Under specification standards, the use of methods other than those approved by OSHA can give rise to a contestable OSHA citation, even if the citation may later be vacated by successfully asserting the affirmative defense of “avoiding a greater hazard.” Failure to follow the requirements set forth in specification standards may result in violations with penalties. Under this theory, some policymakers argue that specification standards impede technology for improvements, since new technologies may be more effective but are not be listed in outdated regulations.
By contrast, performance standards mandate the level of safety and health protection to be achieved, but are more flexible than specification standards since employers fashion their own approaches to compliance. According to one leading industrial hygiene reference, “performance standards are the threshold limit values and they state the objective that must be obtained and [leave] the method for achieving it up to the employer.”3 In the 1980s, it was successfully argued
1
See generally OSH Act §5; 29 U.S.C.A. §655.
1MOCA is the trade name used by E.I. du Pont de Nemours Co., Inc. for 4,4 Methylene bis (2-choloranile). The ETS for MOCA was challenged in Synthetic Organic Chemical Mfrs. Ass’n v. Brennan, 503 F.2d 1155, 2 O.S.H. Cas. (BNA) 1159, 1974-1975 O.S.H. Dec. (CCH) P 18533 (3d Cir. 1974).
2
OSH Act §8(c)(1).
3Barbara, ed., Benjamin & Kerwin, Technical Advisors, Fundamentals of Industrial Hygiene, 3d Ed, National Safety Council, at 679 (1988).
that precedent exists for a “performance standard” within the OSH Act under the “General Duties” Clause.4 This section obligates employers to prevent recognized hazards and incorporates a common-law standard of liability for consequent harms,5 but does not set forth specific mechanisms or requirements for meeting such requirements. Ironically, although employers lobbied for performance standards, they have also complained about their broad application.6 But, it must be emphasized, the agency’s vague directive with ablessing to go forth and comply ultimately provides no certainty that an employer’s choice of compliance approaches will be viewed as the correct method; nor does it provide precise guidance to in-house occupational safety and health compliance decisionmakers who are faced with several methods for achieving compliance.
OSHA’s Hazard Communication Standard7 provides a classic example of a performance standard. It articulates a desired regulatory outcome (i.e., training of workers who face occupational hazards), but does not state specific requirements such as:
• the precise wording, amount and substance of the information to be transmitted to workers; * how large a group of workers in a training class;
• duration of training; or * levels of testing or examinations or types of examinations to be included to assure that workers have retained the knowledge in training, etc. Thus, the government leaves to the employer’s discretion “how to” comply with OSHA’s Hazard Communication Standard, so long as its compliance program reasonably informs covered employees.
1:64. Types of OSHA standards– Hazard communication standard and the Global Harmonization of Chemical Safety (“GHS”)
“More than 25% of the global burden of disease is linked to environmental factors, including chemicals exposures. For example, about 800,000 children each year are affected by lead exposure, leading to lower intelligence quotients … Worldwide, lead exposure also accounts for 2% of the ischaemic heart disease burden and 3% of the cerebrovascular disease burden. Artisanal gold mining in developing countries remains a significant cause of mercury exposure, while mercury-containing medical instruments such as thermometers and sphygmanometers are a continuing source of exposure in both developed and developing countries. Some 9% of the global disease burden of lung cancer is attributed to occupation and 5% to outdoor air
4OSH Act §5(a)(1); 29 U.S.C.A. §654(a)(1).
5″Recognized” refers to knowledge within the medical or scientific community, not merely hazards that one might hear, see, smell, taste or touch, according to case law and OSH Act’s legislative history. American Smelting & Refining Co. v. Occupational Safety and Health Review Com’n, 501 F.2d 504, 2 O.S.H. Cas. (BNA) 1041 (8th Cir. 1974); OSH Act §5(a)(1); 29 U.S.C.A. §654(a)(1).
6 Ilise Feitshans, “Hazardous Substances in the Workplace: How Much Does The Employee Have the ‘Right to Know’?” Detroit College of Law Rev., Fall Vol. 1985, Issue 3. The MSDS arguments will be rendered moot however, once the Global Harmonization of Chemical Safety (GHS) goes into full swing.
729 C.F.R. §§1910.1200 et seq.
pollution.”2 In perilous economic situations, nations who have the access to knowledge about effective safety and health for notorious risks must pool intellectual resources and share their intellectual wealth. The increasing world burden of illness combined with globalization of the use of the same or similar chemicals in commerce militates in favor of internationally consistent standards and best practices: in sum, the end user with modest or even sophisticated training regarding the safe handling and use of these substances must have access to clear and reliable data about best practices. Therefore regulatory agencies in the United Nations system, individual governments, regional agencies such as the European OSHA, and non-governmental organizations joined forces regarding safe handling of toxic or hazardous chemicals.
In its Federal Register notice of December 29, 2009,1 OSHA announced its plan for the final steps towards unifying their existing standards for “Hazard communication” within the GHS and also, OSHA invited comments from all stakeholders in order to evaluate the practical steps that would modify the current Hazard Communication Standard (HCS) to align with the provisions of the Globally Harmonized System of Classification and Labelling of Chemicals (GHS). As OSHA’s leader, Dr. David Michaels noted in his testimony before Congress on March 16, 2010, there are 5000 occupational deaths each year in the U.S. alone. According to OSHA’s reasoning, the absence of coherent systems for global demarcation of hazardous materials and the failure of the international community to previously provide guidance about the baseline training required for hazardous materials handling has important harmful effects. Globalization brings many good things, but also, increased commercial interaction has its price, if inconsistent formats are used when training workers in the handling of materials, or if inaccurate information is transferred as a matter of course. This is the rationale behind the Globally Harmonized System for the Classification and Labeling of Chemicals (“GHS”).2
2
Sixty-Second World Health Assembly, A62/19, Provisional Agenda Item 12.14 (Apr. 23, 2009); see Strategic Approach to International Chemicals Management, http://www.saicm.org/index.php?ql=h&content=home; Report by the Secretariat, Importance of Sound Management of Chemicals for the Protection of Human Health.
1OSHA Hazard Communication Proposed Rule, 74 Fed Reg. 50279-50549, 74 Fed. Reg. 68756-68758 amended (59 Fed. Reg. 6126, Feb. 9, 1994). The U.S. Occupational Safety and Health Administration (OSHA) proposed to revise its Hazard Communication Standard (29 C.F.R. §§1200 et seq.), which was set forth in 1983, in order to render its system consistent with GHS. 29 C.F.R. Pts. 1910, 1915, and 1926 (Hazard Communication; Proposed Rule).
2 Since June 1992, the United Nations Conference on Environment and Development issued a mandate (Chapter 19 of Agenda 21), supported by the U.S., calling for the development of a globally harmonized chemical classification and labeling system. The Agency has also had bilateral discussions in the past with Canada, as well as the European Union (EU), on issues related to implementation. Following the international mandate from the previous century, a coordinating group comprised of countries, stakeholder representatives, and international organizations was established to manage the work. This group, the Inter-Organization Programme for the Sound Management of Chemicals Coordinating Group for the Harmonization of Chemical Classification Systems, established overall policy for the work and assigned tasks to
In attempt to align the OSHA Hazard communication regulations in 29 C.F.R. §1910.1200 with international practices, OSHA proposed to modify its longstanding regulations for Hazard Communication in order to participate in the Global Harmonization of Chemical Safety (GHS).3 GHS is the centerpiece of many years of work at national, international and global levels. GHS was formally adopted by the new United Nations Committee of Experts on the Transport of Dangerous Goods and the Globally Harmonized System of Classification and Labelling of Chemicals in December 2002. In 2003, the adoption was endorsed by the Economic and Social Council of the United Nations. Developing countries and countries with economies in transition, which constitute the major importers and users of chemicals, are likely however, to face particular challenges in implementing the system and integrating it into good chemicals management practices.
According to OSHA, the primary benefit of the GHS is to increase the quality and consistency of information provided to workers, employers and chemical users by adopting a standardized approach to hazard classification, labels and safety data. The GHS provides a single set of harmonized criteria for classifying chemicals according to their health and physical hazards and specifies hazard communication elements for labeling and safety data sheets. Under the GHS, labels would include signal words, pictograms, and hazard and precautionary statements and safety data sheets would have standardized format. OSHA’s proposal to adopt the GHS will not change the framework and scope of the current HCS but will help ensure improved quality and more consistency in the classification and labeling of all chemicals. This will enhance worker comprehension, resulting in appropriate handling and use of chemicals. The harmonized format of the safety data sheets will enable workers to access the information more efficiently. In addition, currently multiple labels and safety data sheets must often be developed for the same product when shipped to different countries. This creates a major compliance burden for chemical manufacturers and those involved in international trade, increasing the cost of providing hazard information. By contrast, the one-time expenditure of converting to the GHS will have the one-term economic benefit of reducing the costs and confusion created when several different labels are required for shipping substances abroad. OSHA further asserted that adoption of GHS will minimize this burden. As the agency itself stated in the Federal register notice justifying this action: the standardized format of the safety data sheets would enable critical information to be accessed more easily and quickly during emergencies.
Within the U.S. itself, several regulatory authorities exercise jurisdiction over chemical hazard communication. In addition to OSHA’s HCS, the Department of Transportation (DOT)
other organizations to complete. The Coordinating Group then took the work of these organizations and integrated it to form the GHS. OSHA served as chair of the Coordinating Group. OSHA participated in these deliberations, serving as the U.S. lead agency through cooperation with the Department of State,6 regarding classification of mixtures and hazard communication. official text of the GHS, which was adopted on June 27, 2007, is available at http://www.unece.org/trans/danger/publi/ghs/ghs_rev00/00files_e.html.
3See U.S. Department of Labor web site at http://www.dol.gov/compliance/laws/comp-osha.htm.
regulates chemicals in transport, the Consumer Product Safety Commission (CPSC) regulates consumer products, and the Environmental Protection Agency (EPA) regulates pesticides, as well as having other authority over labeling under the Toxic Substances Control Act. Each of these regulatory authorities operates under different statutory mandates, and has adopted distinct hazard communication requirements. Tracking the hazard communication requirements of different regulatory authorities is a burden for manufacturers, importers, distributors, and transporters engaged in commerce in the domestic arena. This burden is magnified by the need to develop multiple sets of labels and safety data sheets for each product in international trade. Small businesses may have particular difficulty in coping with the complexities and costs involved. The problems associated with differing national and international requirements were recognized and discussed when the HCS was first issued in 1983, but are exacerbated by the practical realities if the U.S. fails to participate in the international harmonization of hazard communication requirements. Therefore the agency stated:
[O]SHA acknowledges the long-term benefit of maximum recognition of hazard warnings, especially in the case of containers leaving the workplace which go into interstate and international commerce. The development of internationally agreed standards would make possible the broadest recognition of the identified hazards while avoiding the creation of technical barriers to trade and reducing the costs of dissemination of hazard information by elimination of duplicative requirements which could otherwise apply to a chemical in commerce. 4
The primary approach to reconciling these systems involved identifying the relevant provisions in each system; developing background documents that compared, contrasted, and explained the rationale for the provisions; and undertaking negotiations to find an agreed approach that addressed the needs of the countries and stakeholders involved. Principles to guide the work were established, including an agreement that protection of the existing systems would not be reduced as a result of harmonization. GHS will be updated as necessary to reflect new technology and scientific developments, or provide additional explanatory text.
According to U.S. DOL these are the benefits of GHS:
• Hazard classification: Provides specific criteria for classification of health and physical hazards, as well as classification of mixtures.
• Labels: Chemical manufacturers and importers will be required to provide a label that includes a harmonized signal word, pictogram, and hazard statement for each hazard class and category. Precautionary statements must also be provided.
• Safety Data Sheets: Will now have a specified 16-section format.
Another area of cooperative global work where implementation of the GHS may become
448 Fed. Reg. 53287. GHS is more complex: The work was divided into three main parts: Classification criteria for physical hazards; classification criteria for health and environmental hazards (including criteria for mixtures); and hazard communication elements, including requirements for labels and safety data sheets. The criteria for physical hazards were developed by a United Nations Subcommittee of Experts on the Transport of Dangerous Goods/International Labour Organization working group and were based on the already harmonized criteria for the transport sector. The criteria for classification of health and environmental hazards were developed under the auspices of the Organization for Economic Cooperation and Development. The ILO developed the hazard communication elements.
important involves developing practical tools for controlling exposures to chemicals, particularly in small and medium size businesses. Control banding is one of the tools currently under development by WHO and ILO through IPCS, to use the agreed hazard classifications of chemicals identified through implementation of the GHS together with information about exposure potential to identify broad, simple and effective control approaches.7 Therefore, the time has come when regulatory agencies in the United Nations system, individual governments, regional agencies such as the European OSHA, and non-governmental organizations that are aware of the urgent and simple means for protecting workers and end users regarding the safe handling of toxic or hazardous chemicals speak with one voice.
Another area of cooperative global work where implementation of the GHS may become important involves developing practical tools for controlling exposures to chemicals, particularly in small and medium size businesses. Therefore, the WHO resolution is “Mindful also of WHO’s contribution to the sound management of chemicals through the International Programme on Chemical Safety, a cooperative venture between ILO, WHO and UNEP, and the established joint programme of cooperation between WHO and the ILO on workers’ health; Recognizing the need for health interests at country level to be addressed in the implementation of the Strategic Approach to International Chemicals Management, 1. NOTES the Strategic Approach to International Chemicals Management as contained in the Dubai Declaration on International Chemicals Management, the Overarching Policy Strategy and the Global Plan of Action; 2. URGES Member States: (1) to take full account of the health aspects of chemical safety in national implementation of the Strategic Approach to International Chemicals Management; (2) to participate in national, regional and international efforts to implement the Strategic Approach, including the International Conference on Chemicals Management; (3) to nominate a national Strategic Approach focal point from the health sector, where appropriate, in order to maintain contact with WHO.”
One of these tools, known as control banding is currently being developed by the WHO and ILO together. Control banding has become popular among the industrial hygiene community because it enables researchers to examine clusters of substances at the same time, rather than dealing with toxins on a case-by-case regulatory basis. To apply control banding, the team of experts will use the agreed hazard classifications of chemicals identified through implementation of the GHS together with information about exposure potential to identify broad, simple and effective control approaches.6 In addition to the Rio framework and implementing principles, this approach is
7
WHO, International Programme of Chemical Safety (IPCS), Implementation of the Globally Harmonized System for the Classification and Labelling of Chemicals (July 10-11, 2003), available at http://www.who.int/ipcs/capacity_building/ghs_statement/en/index.html; UNITAR, WSSD Global Partnership for Capacity Building, available at http://www2.unitar.org/cwm/ghs_partnership/index.htm.
6 ILO, SafeWork: Chemical Control Banding, available at http://www.ilo.org/legacy/english/protection/safework/ctrl_banding/index.htm.
important for implementing the Joint WHO/ ILO Workers’ health: global plan of action.7 This Plan of Action is consistent with operationalizing the United Nations system and with other intergovernmental organizations. Internationally harmonized hazard communication is an important step forward in relieving the global burden of disease caused by preventable but harmful exposures to toxic and hazardous substances that are already subject to regulation in several nations, or are the subject of international scientific consensus regarding precautionary principles among non-governmental organizations.9
The list of chemicals covered by GHS is impressive not because of the long litany, but because there is widespread consensus without objection regarding the dangers of these substances. Among those stakeholders and people who are expected to wring their hands and complain about any regulation, GHS has been surprisingly viewed by many companies with a collective sigh of relief due to the existing confusion regarding labeling and the right of companies to know the accurate information from their suppliers, regarding chemical safety that is shipped around the world and used in thousands of different uses in international trade. Because there is such a knotty collection of laws governing this facet of science, no one set of rules seems to apply everywhere and many rules seem to apply needlessly.
Although the notion of streamlining regulations has been popular in many nations since the 1980s, GHS represents a first cut at tackling a major regulatory confusion, untying the knot across many commercial endeavors worldwide. Similar streamlining efforts, designed to reduce the paperwork burden on industry and to prevent the confusion from conflicting systems for best practices, information disseminated during training and danger warnings are underway in the European Union, a friend of the GHS process. As the GHS process is underway, the
7WHO, Sixtieth World Health Assembly, WHA60.26, Agenda item 12.13 (May 23, 2007). Workers’ health: global plan of action specifically states: The Sixtieth World Health Assembly, Having considered the draft global plan of action on workers’ health; Recalling resolution WHA49.12 which endorsed the global strategy for occupational health for all; Recalling and recognizing the recommendations of the World Summit on Sustainable Development (Johannesburg, South Africa, 2002) on strengthening WHO action on occupational health and linking it to public health; 2 Recalling the Promotional Framework for Occupational Safety and Health Convention, 2006, and the other international instruments in the area of occupational safety and health adopted by the General Conference of the ILO; … Stressing that the health of workers is an essential prerequisite for productivity and economic development … 1. ENDORSES the global plan of action on workers’ health 2008-2017; 2. URGES Member States: (1) to devise, in collaboration with workers, employers and their organizations, national policies and plans for implementation of the global plan of action on workers’ health as appropriate, and to establish appropriate mechanisms and legal frameworks for their implementation, monitoring and evaluation; …
9WHO/IPCS Meeting on Strengthening Global Collaboration in Chemical Risk Assessment, available at http://www.who.int/ipcs. Statement by the International Programme on Chemical Safety (IPCS), World Health Organization, Geneva, Switzerland for the first meeting of Partners for the WSSD Global Partnership for Capacity Building to Implement the GHS.
“Registration, Evaluation, Authorization and Restriction of Chemical Substances12 or “REACH” program, will result in registration of information in a central database established by the European Chemicals Agency (ECHA) in Helsinki. Over its 11-year phase-in, the regulation will require progressive substitution of dangerous chemicals as alternatives are identified. Manufacturers and importers will be required to gather information on the properties of their chemical substances, which will allow their safe handling, and to register the information in a central database run by the new European Chemicals Agency (ECHA). ECHA will act as the central point in the REACH system: it will manage the databases necessary to operate the system, coordinate the in-depth evaluation of suspicious chemicals, and run a public database in which consumers and professionals can find hazard information. Pre-registration of substances for REACH began in 2008.13 The need for the precise clarification that can only come from international harmonization of disclosure formats, however, is without dispute.
WHO’s International Programme for Chemical Safety (IPCS)
Implementation of the WHO’s International Programme for Chemical Safety (IPCS) is one component of the very complex endeavor involving over 25 United Nations Agencies involved in GHS.14 Regional groups such as the EU, governments and individual trade organizations have worked in tandem to promote a unified system of identifying chemicals with the same set of labels worldwide, and to make sure that handling information and training travels with the chemical so that the same level of accurate Right to Know information will be accessible to everyone who works with the transport, storage or industrial use of the substance. IPCS has an established and internationally recognized leadership role in the preparation of risk assessments on specific chemicals and for developing and harmonizing hazard and risk assessment methods. These products include Concise International Chemical Risk Assessment Documents, International Chemical Safety Cards, Pesticide Data Sheets, and Poisons Information Monographs. These products are of particular benefit to countries that may lack high levels of toxicological expertise. IPCS is actively involved in engaging its participating institutions, which include, but is not limited to, UNITAR; OECD, ILO and the governments of several nations in addition to the networks of health professionals and scientific experts who identify activities and processes that will assist countries to have the system fully operational as part of the ongoing flexible framework of UN agencies.
12The REACH, EC 1907/2006, regulation also went into effect on June 1, 2007. The aim of REACH is to protect human health and the environment through better and earlier identification of the intrinsic properties of chemical substances and to require manufacturers and importers to gather information on the properties of their chemicals.
13Jean H. McCreary, Global Harmonization of Chemical Classification (Mar. 20, 2010) (from the webpage of the law firm of Nixon Peabody).
14IPCS has already started work to promote consistency among hazard and risk assessment products with the global system for classification of hazards, with a view to enable national governments to use these products more effectively in implementing the GHS at the national level.
1:65. Regulation of specific toxicants
In the late 1980s reports that exposure to certain glycol ethers was associated with an increased rate of spontaneous abortions among female clean room workers in the semiconductor industry prompted OSHA, for the first time in its regulatory history, to propose regulations based primarily on adverse reproductive health effects.1 using “the latest available scientific data in the field,” as required by §6(b)(5).2 The following substances have been studied for their affects on reproduction and fetal development:
(1) Methylene chloride12
(2) 1,3-Butadiene13
(3) Ethylene oxide14
158 Fed. Reg. 15,526, 15,534 (1993).
2 29 U.S.C.A. §655(b)(5).
12In January 1997, OSHA promulgated more stringent regulations for occupational exposure to methylene chloride (MC), based, in part, on potential adverse teratogenic or reproductive effects resulting from MC exposure (62 Fed. Reg. 1494). Specifically, OSHA reduced the existing 8-hour time weighted average (TWA) exposure from 500 parts MC per million parts of air to 25 parts per million (ppm). In addition, OSHA deleted the existing ““ceiling limit concentration”” of 1,000 ppm, lowered the existing short-term exposure limit from 2,000 ppm (measured over five minutes in any 2-hour period) to 125 ppm, measured as a 15-minute TWA. The“action level” for MC was set at 12.5 ppm, measured as an 8-hour TWA. Although the PEL was set based on cancer and central nervous system effects, “OSHA concluded from the animal studies that maternal exposure to high concentrations of MC during pregnancy may have some adverse effects on the offspring.” Carbon monoxide (CO) has well-documented adverse reproductive effects in humans. Since MC is metabolized to CO, OSHA has also expressed concerns about the adverse reproductive effects of CO as a metabolite of MC.
13In the spring of 1996, labor and industry representatives entered into an agreement to reduce the PEL for 1,3 butadiene (BD) by a factor of 1,000 to a level lower than that proposed by OSHA. The agreement was reached by the United Steelworkers of America, the International Chemical Workers Union, the International Institute of Synthetic Rubber Producers and the Chemical Manufacturers Association Olefins Panel. OSH Daily (BNA) (May 13, 1996). In November 1996, OSHA codified the PEL for BD at an 8-hour TWA of 1 ppm and a short term exposure limit (STEL) of 5 ppm for 15 minutes. An ““action level”” was established at 0.5 ppm as an 8-hour TWA. In concluding that the previous PEL which permitted employees to be exposed to BD in concentrations up to 1,000 ppm as an 8-hour TWA did not adequately protect employee, OSHA specifically noted the potential adverse reproductive and developmental effects of exposure to BD. 61 Fed. Reg. at 56764. OSHA limited its discussion on reproductive and developmental hazards “to a qualitative evaluation of the [animal test] data because no generally accepted mathematical model for estimating reproductive/developmental risk on a quantitative basis was presented during the [BD PEL] rulemaking.”
14Commonly used as a sterilant for medical equipment, EtO is associated with cancer and reproductive hazards. In 1984, OSHA issued a comprehensive standard for occupational
(4) Lead15
(5) Glycol ethers16
(6) Genetic conditions and concerns regarding mutagens in the workplace17
exposure to EtO, requiring employers to implement medical surveillance programs for all employees exposed to the substance at or above 0.5 ppm for more than 30 days per year. This action level is one-half the PEL of 1 ppm. Exposed and potentially exposed employees must be provided medical examinations by and consultation with physicians. 29 C.F.R. §1910.1047.
OSHA has increased its attention to this reproductive hazard, as evidenced by the special emphasis program at OSHA’s Allentown, Pennsylvania, office, under which it proposed $52,850 in penalties for “major deficiencies” in B. Braun Medical Inc.’s medical surveillance program for employees exposed to EtO. Specifically, OSHA issued one willful and 23 serious violation citations against the medical instruments manufacturer (Braun filed a notice contesting the citations June 17, 1993. 23 OSH Rep (BNA) 91 (June 23, 1993)). The Braun enforcement action was the second of several planned inspections of employers that OSHA identified from an existing database as using ethylene oxide in excess of certain quantities.
15Exposure to lead is known to have serious adverse effects on reproductive function in both males and females. Adverse effects in male workers exposed to lead include decreased sexual drive, impotence, decreased ability to produce healthy sperm, and sterility. Malformed sperm, decreased sperm count and/or decreased sperm motility can all occur. Women exposed to lead may experience menstrual disturbances and have a higher frequency of sterility, premature births, spontaneous miscarriages, and stillbirths. Genetic damage in the egg or sperm cells caused by lead prior to conception can result in failure to implant, miscarriage, stillbirth, or birth defects.
See Agency for Toxic Substances and disease Registry, U.S. Dept. of Health and Human Services, Case Studies in Environmental Medicine: Lead Toxicity (June 1990) (ATSDR Lead Study). In 1978, after a Section 6(b) rulemaking, OSHA established an exposure limit of 50 micrograms lead per cubic meter of air (50 (&mgr;/m3)) for workers in general industry, which required monitoring of workers’ blood lead levels and medical removal protection for workers with elevated levels of lead in their blood. 29 C.F.R. §1910.1025.
17Although the reliability and impact of genetic testing as a mechanisms for pre-employment screening has been stated by the EEOC to be contrary to the American With Disabilities Act (ADA) if it is used in a discriminatory manner. Americans With Disabilities Act, 42 U.S.C.A. §§12101 et seq. Nonetheless, Becker and other legal scholars who have called for periodic testing for pregnancy as a way to determine the scope of the high-risk population may run into a conflict with such provisions of the ADA, that prohibit genetic testing or related tests, if they have a discriminatory effect or adverse impact on the potentially pregnant population or on the employability of pregnant workers. Becker, Reproductive Hazards After Johnson Controls, 31 Houston L. Rev. 43 (1994). Also, some forms of genetic testing may have implications for scientifically based risk assessment regarding employees who wish to become parents but who have unquantified exposure to known mutagens or genotoxins. Feitshans, Job Security: Prohibiting Wrongful Discharge of Pregnant Employees Under the Model Employment Termination Act, 536 Annals of the Amer Acad of Political and Social Science 119, November (1994) and Legislating to Preserve Women’s Autonomy in Pregnancy, International Journal of Medicine and Law Vol 14 Nos. 5, 6 (1995).
(7) Other occupational reproductive hazards
a.. Pesticides18
b.. Sources of radiation, including VDTs19
c.. Anesthetic gases20
(8) Occupational exposure to ethylene oxide21
(9) Beryllium22
18Reproductive hazards from exposing workers to pesticides are well-documented. For example, several pesticides, including 1,2-dibromo-3-chloropropane (DBCP), are no longer registered for use in the United States because of clinical evidence of spermatoxicity. While OSHA’s regulation of pesticide applicators and agricultural workers is largely preempted under §4(b)(1) by the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.A. §§136 et seq., OSHA recently extended its regulation of DBCP by setting a PEL of 1 ppb as an eight-hour time-weighted average for shipyard, 29 C.F.R. §1915.1044;58 Fed. Reg. 35,512, 35,642 (1993), and construction workers, 29 C.F.R. §1926.1144; 58 Fed. Reg. 35,076, 35,257 (1993).
19As in the case of many hazardous pesticide exposures, OSHA’s jurisdiction over occupational exposure to ionizing and nonionizing radiation is mostly preempted under Section 4(b)(1), and appears limited to X-ray machines, particle accelerators, and other such machinery. The current occupational limit for ionizing radiation exposure to the whole body is 5 rem/year. The total dose to the embryo-fetus of a declared pregnant woman may not exceed 500 mrem (also expressed as 0.5 rem), and should not exceed 50 mrem (0.5 rem) in any one month.
20 Although researchers have reported that occupational exposure to high levels of nitrous oxide, used as an anesthetic gas in dental offices, may adversely affect the ability of female dental hygienists to become pregnant, OSHA has never adopted a mandatory standard for this gas. 22 OSH Rep (BNA) 1060 (Oct. 14, 1992). It is possible, however, that the weight of scientific evidence concerning these health effects may support OSHA in characterizing exposure to anesthetic gases as a “recognized hazard” under Section 5(a)(1) of the OSH Act. 29 U.S.C.A. §654(a)(1).
22Lymphocyte Proliferation Testing (LPT) is a medical surveillance tool now available that allows for the early detection of workers with Chronic beryllium disease (CBD) prior to any signs of clinical disease or symptoms. CBD is a fatal disease involving lung fibrosis and other organ toxicity. Beryllium-sensitized workers convert to CBD at an estimated rate of about 10% per year. This ““beryllium sensitization”” test is being used in clinical studies of current and past exposed workers. Recent study results indicate that between 5% and 15% of beryllium-exposed workers are sensitized and will eventually develop CBD. In 1997, DOE issued interim guidelines to protect beryllium-exposed workers at all DOE facilities. The guidelines include provisions for exposure monitoring, medical surveillance and relocation of beryllium-sensitized workers. In February 1999, the Department of Energy also held hearings regarding the medical surveillance and medical monitoring programs for beryllium workers, as published in the Federal Register. This set of hearings, in Washington, D.C., Colorado and Tennessee was the second phase, following the agenda set forth by the Department of Energy Beryllium Rulemaking Advisory Committee (BRAC) in September and October 1997. The
a.. Federal initiatives toward compensation23
1:66. Regulation of specific toxicants– Lead
In the 1970s, employers in a variety of industries excluded women from jobs where toxic or hazardous substances threatened reproductive health. Hoping to prevent potential tort liability, several lead-industry employers instituted “exclusionary policies” that expressly prohibited fertile women from working in specified job locations. As justification for such extreme measures, employers openly stated that exclusion of nonsterilized women was the only way to “protect” a potential fetus against harms from lead that may be stored for years in the future mother’s body.1 “Fetal protection policies” designed to prevent women’s occupational exposure to the reproductive health hazards of lead have been the subject of several major federal court decisions. In separate cases, plaintiffs have attacked such policies under the OSH Act or Title VII. In a prior unsuccessful OSHA enforcement action, OCAW v. American Cyanamid, OSHA tried to prove that such fetal protection policies were an ongoing violation of the OSH Act
medical surveillance provisions, extended to contractors and full-time employees across the U.S. DOE complex.
23Former federal employees weare faced with costly medical bills that they must pay alone because their workers’ compensation deadlines have long expired. Those workers include employees from the Departments of Energy, Defense, Labor, Justice, and the Health and Human Services.. Federal programs focus on situations in which there is a clearly established connection between CBD and work. For this reason also, President Clinton signed an Executive Order to compensate workers whose beryllium sensitivity forces them into lower-paying jobs. The memorandum directs the U.S. attorney general, the director of the Office of Management and Budget, the president’s assistant for economic policy, and the secretaries of Defense, Labor, and Energy to participate in an interagency review led by the National Economic Council focusing on whether there are other illnesses that warrant inclusion in this program and how this should be accomplished. All DOE contract workers, including those employed by companies that supplied the government with beryllium products, are covered. An estimated 20,000 workers have been exposed to beryllium and that between 500 and 1,000 of them suffering from CBD. Since 1977, when OSHA proposed to reduce the 8-hour TWA exposure to beryllium from 2 mgr;/m3 to 1 mgr;/m3 based on evidence that beryllium caused lung cancer in exposed workers, the question what information should be provided to workers and whether there should be retrospective compensation for injuries that might not be documented for the purposes of workers’ compensation due to national security concerns regarding the manufacture, storage and subsequent dismantling of nuclear weapons has been the subject of extensive debate. Despite OSHA hearings regarding this proposal, no final standard was published. The International Agency for Research on Cancer (IARC) concluded that beryllium is a Category I carcinogen in humans. In addition, the U.S. Department of Energy opened its records regarding employee exposures and began its own efforts to move toward a standard, by initiating the Beryllium Rulemaking Advisory Committee (BRAC).
1 For a discussion of the toxicology of lead, see Agency for Toxic Substances and disease Registry, U.S. Dept. of Health and Human Services, Case Studies in Environmental Medicine: Lead Toxicity (June 1990) (ATSDR Lead Study).
§5(a)(1) in a litigation that began in 1978 and ended 6 years later.2 Previously, however, OSHA’s administrative inquiries into the reproductive health effects associated with occupational exposure to lead were discussed in United Steelworkers v. Marshall3 in 1980. There, the U.S. Court of Appeals for the District of Columbia Circuit reviewed OSHA’s examination of lead’s reproductive effects, and accepted the agency’s conclusion that “a lead standard must protect the reproductive capacities of males as well as females.”
While neither OSHA nor the court went further to define the parameters of reproductive health hazards, the court did state that “fertile women can find statutory protection from such discrimination [as fetal protection policies present] in the OSH Act’s own requirement that OSHA Standards ensure that no employee will suffer material impairment of health.”4 In response to the Lead Industry Association’s argument that “only the reproductive functions of women were threatened at low blood-lead levels, and that the only feasible means of protecting fertile women was to exclude them from the workplace or counsel them out on a case-by-case basis,”5 the court concluded that OSHA had offered “substantial evidence to show that its goal of 40 mgr;g/100g the same level which it presents as a feasible and necessary one to prevent the other health effects of lead can in fact protect women from reproductive harm and, moreover, that men require similar protection.”6 In promulgating the standard, however, OSHA did not specifically address the harms of exclusionary fetal protection policies. This void in OSHA’s lead standard proved to be an important factor when the OSH Act’s general duty clause was unsuccessfully used to prosecute an employer,7 who required female employees of childbearing
2 Oil, Chemical and Atomic Workers Intern. Union v. American Cyanamid Co., 741 F.2d 444, 11 O.S.H. Cas. (BNA) 2193, 1984-1985 O.S.H. Dec. (CCH) P 27035, 14 Envtl. L. Rep. 20806 (D.C. Cir. 1984). See: Ilise Feitshans “The Law of Reproductive Health Protections in the Workplace After Johnson Controls” in Health Values The Journal of Health Behavior, Education and Promotion Vol. 16 No.1 January/February 1992 p.29-38
3United Steelworkers of America, AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 8 O.S.H. Cas. (BNA) 1810, 1980 O.S.H. Dec. (CCH) P 24717, 10 Envtl. L. Rep. 20784 (D.C. Cir. 1980).
4United Steelworkers of America, AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1238, 8 O.S.H. Cas. (BNA) 1810, 1980 O.S.H. Dec. (CCH) P 24717, 10 Envtl. L. Rep. 20784 (D.C. Cir. 1980) (emphasis in original), discussing comments of Amici concerning the need for medical removal programs to protect the job security of fertile women who worked in the lead industries, and citing 29 U.S.C.A. §655(b)(5).
5United Steelworkers of America, AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 8 O.S.H. Cas. (BNA) 1810, 1980 O.S.H. Dec. (CCH) P 24717, 10 Envtl. L. Rep. 20784 (D.C. Cir. 1980), OSHC 1810, 1857.
6United Steelworkers of America, AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 8 O.S.H. Cas. (BNA) 1810, 1980 O.S.H. Dec. (CCH) P 24717, 10 Envtl. L. Rep. 20784 (D.C. Cir. 1980), OSHC 1810, 1857-1858.
7Oil, Chemical and Atomic Workers Intern. Union v. American Cyanamid Co., 741 F.2d 444, 11 O.S.H. Cas. (BNA) 2193, 1984-1985 O.S.H. Dec. (CCH) P 27035, 14 Envtl. L. Rep. 20806
age and capacity to be sterilized. In the case of UAW v. Johnson Controls,8 the U.S. Supreme Court unanimously rejected Johnson’s fetal protection policy, finding that it constituted prima facie discrimination under Title VII of the Civil Rights Act of 1964.
1:66 A Johnson Controls: Title VII analysis of fetal protection policies
The most recent major litigation to oppose the implementation of fetal protection policies involved claims against the employer under Title VII in UAW v. Johnson Controls.9 After eight employees at its lead battery manufacturing plant became pregnant while maintaining blood lead levels exceeding the OSHA lead standard, the Johnson Controls Company announced a policy barring all women, except those whose infertility was medically documented, from jobs involving actual or potential lead exposure exceeding the OSHA standard. The UAW sued, arguing that any fetal protection policy constitutes prima facie discrimination. The company countered that potential tort suits from injured children created a “business necessity” defense and made sex a bona fide occupational qualification (BFOQ) under Title VII. Applying a three-part business necessity defense developed in prior fetal-protection cases,10 the district court
(D.C. Cir. 1984) (D.C. Cir. 1984), OSHC 2193 (American Cyanamid). For discussions of the D.C. Circuit and the Review Commission decision, 9 OSHC 1596 (Rev Comm’n 1981). See also Mintz, OSHA History, Law and Policy 464-468 (1984). Ilise Feitshans”The Law of Reproductive Health Protections in the Workplace After Johnson Controls” in Health Values The Journal of Health Behavior, Education and Promotion Vol. 16 No.1 January/February 1992 p.29-38
8International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, n.14, 113 L. Ed. 2d 158, 55 Fair Empl. Prac. Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H. Dec. (CCH) P 29256 (1991). See: Ilise Feitshans “The Law of Reproductive Health Protections in the Workplace After Johnson Controls” in Health Values The Journal of Health Behavior, Education and Promotion Vol. 16 No.1 January/February 1992 p.29-38
9International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 55 Fair Empl. Prac. Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H. Dec. (CCH) P 29256 (1991).
10See discussion of these cases in Ilise Feitshans,The Law of Reproductive Health Protections in the Workplace After Johnson Controls,” in Health Values, The Journal of Health Behavior, Education and Promotion Vol 16, No. 1 Jan./Feb. 1992 pp. 29-38. Hayes v. Shelby Memorial Hosp., 726 F.2d 1543, 34 Fair Empl. Prac. Cas. (BNA) 444, 33 Empl. Prac. Dec. (CCH) P 34219 (11th Cir. 1984) (rejected by, International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 55 Fair Empl. Prac. Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H. Dec. (CCH) P 29256 (1991)); Zuniga v. Kleberg County Hosp., Kingsville, Tex., 692 F.2d 986, 30 Fair Empl. Prac. Cas. (BNA) 650, 30 Empl. Prac. Dec. (CCH) P 33213 (5th Cir. 1982); Wright v. Olin Corp., 697 F.2d 1172, 30 Fair Empl. Prac. Cas. (BNA) 889, 30 Empl. Prac. Dec. (CCH) P 33257, 66 A.L.R. Fed. 937 (4th Cir. 1982) (rejected by, International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 55 Fair Empl. Prac.
granted summary judgment for Johnson Controls on the grounds: (1) that expert opinion supports the view that lead exposure poses a risk to the fetus; (2) that expert opinion also supports the view that the fetus is more vulnerable through maternal exposure than paternal exposure; and (3) that petitioners failed to establish the existence of an equally effective alternative to exclusion.11
In an en banc decision, the Seventh Circuit agreed that Johnson Control’s policy was protected under the judicially created business necessity defense.12 It further held the policy satisfied the statutory defense provided under Title VII for “bona fide occupational qualifications.”13
Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H. Dec. (CCH) P 29256 (1991)) (involving ““Fetal Vulnerability Policy”” that included counseling and alternative employment in its program).
11International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 680 F. Supp. 309, 315-316, 46 Fair Empl. Prac. Cas. (BNA) 110, 13 O.S.H. Cas. (BNA) 1624, 46 Empl. Prac. Dec. (CCH) P 37858 (E.D. Wis. 1988), judgment aff’d, 886 F.2d 871, 50 Fair Empl. Prac. Cas. (BNA) 1627, 14 O.S.H. Cas. (BNA) 1217, 51 Empl. Prac. Dec. (CCH) P 39359, 1989 O.S.H. Dec. (CCH) P 28673 (7th Cir. 1989), judgment rev’d, 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 55 Fair Empl. Prac. Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H. Dec. (CCH) P 29256 (1991).
12 International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 886 F.2d 871, 886-893, 50 Fair Empl. Prac. Cas. (BNA) 1627, 14 O.S.H. Cas. (BNA) 1217, 51 Empl. Prac. Dec. (CCH) P 39359, 1989 O.S.H. Dec. (CCH) P 28673 (7th Cir. 1989), judgment rev’d, 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 55 Fair Empl. Prac. Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H. Dec. (CCH) P 29256 (1991) (en banc).
13
International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 886 F.2d 871, 893-894, 50 Fair Empl. Prac. Cas. (BNA) 1627, 14 O.S.H. Cas. (BNA) 1217, 51 Empl. Prac. Dec. (CCH) P 39359, 1989 O.S.H. Dec. (CCH) P 28673 (7th Cir. 1989), judgment rev’d, 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 55 Fair Empl. Prac. Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H. Dec. (CCH) P 29256 (1991). After the grant of certiorari, the Sixth Circuit reversed a district court’s summary judgment for an employer that had excluded fertile female employees from foundry jobs involving exposure to specified concentrations of air-borne lead. See Grant v. General Motors Corp., 908 F.2d 1303, 53 Fair Empl. Prac. Cas. (BNA) 688, 14 O.S.H. Cas. (BNA) 1681, 29 Wage & Hour Cas. (BNA) 1484, 54 Empl. Prac. Dec. (CCH) P 40110, 116 Lab. Cas. (CCH) P 35387, 1990 O.S.H. Dec. (CCH) P 29028 (6th Cir. 1990). In Johnson Controls, Inc. v. Fair Employment & Housing Com., 218 Cal. App. 3d 517, 267 Cal. Rptr. 158, 52 Fair Empl. Prac. Cas. (BNA) 585, 14 O.S.H. Cas. (BNA) 1457, 53 Empl. Prac. Dec. (CCH) P 39758, 1990 O.S.H. Dec. (CCH) P 28849 (4th Dist. 1990), opinion modified, (Mar. 14, 1990) and reh’g denied and opinion modified, (Mar. 27, 1990), the court held respondent’s fetal-protection policy
The Supreme Court reversed. First, the Court found the business necessity defense crafted to apply to policies that while neutral on their face are discriminatory in their effect was unavailable to Johnson Controls:
Johnson Controls policy is not neutral because it does not apply to the reproductive capacity of the company’s male employees in the same way as it applies to that of the females. Moreover, the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with discriminatory effect.14
Rather, the Court held that the policy of excluding women who had childbearing capacity from jobs where they would be exposed to high levels of lead was “sex discrimination forbidden under Title VII unless [it is established that] sex was a [BFOQ].”15
Section 703(e)(1) of the statute provides that an employer may discriminate on the basis of sex “in those certain instances where … sex … is a bona fide occupational qualification reasonably necessary to the normal operation of that business ….”16 The Court stated that “the BFOQ defense is written narrowly, and this Court has read it narrowly.”17 In a lengthy discussion, the Court limited any “safety exception” to the BFOQ “to instances in which sex or pregnancy actually interferes with the employee’s ability to perform the job,”18 and the employer must direct its concerns in this regard to those aspects of the woman’s job-related activities that fall within the “essence” or the “central mission” of the particular business.19 The Court observed
invalid under California’s fair employment law.
14
International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 55 Fair Empl. Prac. Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H. Dec. (CCH) P 29256 (1991).
15International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 55 Fair Empl. Prac. Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H. Dec. (CCH) P 29256 (1991).
16
42 U.S.C.A. §2000e-2(e)(1).
17International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 55 Fair Empl. Prac. Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H. Dec. (CCH) P 29256 (1991).
18International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 55 Fair Empl. Prac. Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H. Dec. (CCH) P 29256 (1991).
19International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 55 Fair Empl. Prac. Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H.
that the unconceived fetuses of respondent’s female employees were neither customers nor third parties whose safety is essential to the business of battery manufacturing,20 and concluded that, in the absence of any “factual basis for believing that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved,”21 Johnson Controls had failed to establish its defense.
1:67. Regulatory directions reflecting demographic changes and the new organization of work
Changes in demographics, technology and the impact of globalization have dramatically altered the nature and organization of work in the United States and throughout the world.1 In a recent address concerning the future of occupational health2. Traditional models for occupational health no longer reflect the composition of the workforce or the hours of work in the United States. Dr. Howard therefore urged the development of models for health protection and health promotion that accurately respond to the needs of a “transcultural workforce”. Using as an example the return to work of women who may have left the workforce to raise children, it became clear that the ability to meet the various needs of different workers will become the hallmark of successful compliance programs.
1:68. Ergonomics
OSHA has difficulty defining and employing ergonomic methods even though ergonomics is popular among workers and ergonomically related injuries are the greatest part of occupational health expenditures.1 Most people think of ergonomics in relation to computer
Dec. (CCH) P 29256 (1991).
20International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 55 Fair Empl. Prac. Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H. Dec. (CCH) P 29256 (1991).
21International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 55 Fair Empl. Prac. Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H. Dec. (CCH) P 29256 (1991), quoting Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 235, 1 Fair Empl. Prac. Cas. (BNA) 656, 70 L.R.R.M. (BNA) 2843, 1 Empl. Prac. Dec. (CCH) P 9970, 59 Lab. Cas. (CCH) P 9213, 12 A.L.R. Fed. 1 (5th Cir. 1969).
1See Ilise L. Feitshans, NIOSH Director Launches New Millenium From Mt. Sinai, OEM Rep.
2New York New Jersey Education and Research Center, 25th Annual Scientific Meeting: Advancing Work Health and Safety in the New Millenium (Apr. 16, 2004).
1 Dave, Ergo Talk: An Ergonomics Turnaround, 73 Occupational Health & Safety (September 1, 2004) 9 Franz, Four Steps to an Effective Office Ergonomics Program, 70 Occupational Health & Safety (September 30, 2001) 9Garnett, Critical Success Factors for Ergonomics Processes, 72 Occupational Health & Safety (June 1, 2003) 6 (May 2004).
keyboards, ambidextrous mouse attachments and correctly fitting chairs. The principles of ergonomics hold exponentially greater benefits, however, and can mean the difference between life and death when applied to heavy machinery where the ability to reach or control equipment comfortably for a long period of time is involved. Taking into account ergonomics in the design of workstations also can reduce costs in the most expensive area of employer-based health insurance–gradual injuries. OSHA ergonomics guidelines have been designed to streamline record keeping, by harmonizing the recording requirements for injuries and illnesses, which had been distinct in the past. In theory, the 2002-2003 rules established “identical” requirements for both broad categories. In addition, the new regulation will allow employers to ask five questions to determine “whether the injury or illness is work-related,” according to OSHA staff. The test of work relatedness is whether an employee suffers “significant aggravation at work,” rather than in all cases where an employee suffers “aggravation of a preexisting condition by a workplace event.” The list of obligatory reporting includes many ergonomic problems.2 Ergonomic guidelines have been released for retail stores.1 According to OSHA, these guidelines should serve as “practical tools that have been shown to reduce work-related injuries in retail grocery stores.”2 The voluntary ergonomics guidelines were created by OSHA after working with trade associations, labor organizations and individual grocery stores. The guidelines include a corrective actions section, which offers examples of solutions that have been successfully used to control exposure to ergonomic risk factors in grocery stores. Also, employers must report needle-sticks and certain musculo-skeletal injuries that were not previously recordable. This set of reporting and recording requirements for musculo-skeletal injuries may capture a lot of data that would have otherwise been lost.
Identification and prevention of gradual injury
Traditionally, occupational deafness caused by exposure to noise has been the oldest, well-recognized cause of long-term, nonfatal gradual injury. Few people become deaf due to one acute exposure to noise during, for example, an explosion, but many people experience gradual hearing loss because of sharp, piercing noises or noise over 90 decibels over time. For this reason, noise has been one of the earliest sources of OSHA and international regulation, as well as an early source of non-accident-based workers’ compensation. Contemporary issues in noise control focus on which levels of noise may be acceptable over a working lifetime with minimal harm, and the best approaches for hearing protection.
Back injuries are another form of gradual injury long recognized by OSHA and workers’ compensation systems as a leading cause of work-related harm. The costs of down-time and lost productivity from back injuries have been discussed in many leading studies pertaining to the claims process and methods for reducing insurance premiums associated with workers’
2See OSHA, Injury and Illness: Recordkeeping, available at http://www.oshaslc.gov/recordkeeping/index.html; §2:25.
1OSHA, Guidelines for Retail Grocery Stores (2004), available at http://www.osha.gov/Publications/osha3192.pdf (last visited Apr. 13, 2005).
2Press Release, OSHA, Ergonomics Guidelines Announced for Retail Grocery Stores (May 28, 2004), available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS RELEASES&p_id=10867 (last visited Apr. 13, 2005).
compensation. Epidemiological studies of office workers and the service industries have revealed: carpal tunnel syndrome, eye strain and musculo-skeletal injuries from video display terminals (VDTs),3 and the effects of “sick building” syndrome, associated with indoor air pollution. Disabilities derived from occupational stress have also become an emerging area of successful claims for workers’ compensation.4 These problems are also warning signs for more severe occupational health issues, and therefore should be addressed by compliance strategies and therefore have been studied by NIOSH. Even without specific regulations, the affirmative obligation of employers to prevent “recognized hazards” and the cost of care for these gradual injuries militates in favor of their high priority for in-house compliance programs.
OSHA’s strategy involves “industry-specific and task-specific solutions to ergonomic problems. The ubiquitous character of the risk leading to injuries associated with ergonomic problems means that OSHA will also be compelled to examine the role of home office facilities for the first time in agency history. The prevalence of increased use of home computers and many other machines that give rise to repetitive or uncomfortable types of muscle activity that may lead to strain or injury extends beyond working life into every facet of personal space, thus making it extremely difficult to parse the cause of injury into neat little parcels from “home” off the job and “work” that can be monitored or controlled by employers. These issues are more likely to be resolved through reasonable accommodations as required in order to comply with the Americans with Disabilities Act (ADA), and using the good offices of compliance staff to institute and monitor best practices, with a view to reducing insurance costs.
1:83. Identification and prevention of other forms of gradual injury
Traditionally, occupational deafness caused by exposure to noise has been the oldest, well-recognized cause of long-term, nonfatal gradual injury. Few people become deaf due to one acute exposure to noise during, for example, an explosion, but many people experience gradual hearing loss because of sharp, piercing noises or noise over 90 decibels over time. For this reason, noise has been one of the earliest sources of OSHA and international regulation, as well as an early source of non-accident-based workers’ compensation. Contemporary issues in noise control focus on which levels of noise may be acceptable over a working lifetime with minimal harm, and the best approaches for hearing protection.
Back injuries are another form of gradual injury long recognized by OSHA and workers’ compensation systems as a leading cause of work-related harm. The costs of down-time and lost productivity from back injuries have been discussed in many leading studies pertaining to the claims process and methods for reducing insurance premiums associated with workers’ compensation. In addition, epidemiological studies of office workers and the service industries have revealed new areas of concern for potential occupational illness, such as: carpal tunnel syndrome, eye strain and musculo-skeletal injuries from video display terminals (VDTs),1 and
3Fe, Visual Display Units: Job Content and Stress in Office Work International Labour Office, Geneva, Switzerland (1985).
4Bale, Medicolegal Stress at Work, 8 Behavioral Sciences & the Law at 399-420 (1990).
See also Warshaw, Occupational Stress, 3 Occupational Medicine: State of the Art Reviews 587-593 (1988).
1
Fe, Visual Display Units: Job Content and Stress in Office Work International Labour Office,
the effects of “sick building” syndrome, associated with indoor air pollution. NIOSH has prepared research documents with a view to laying the groundwork for OSHA regulatory activity pertaining to these topics. OSHA has also proposed rulemakings concerning some forms of temporary illness not previously included in occupational health literature because of the emerging awareness of occupational transmission of bloodborne pathogens and communicable and infectious diseases.
1:69. Small businesses: Walking working surfaces and personal fall protection
A long-standing area of debate that has disproportionate impact on small business concerns walking surfaces and personal fall protection systems. OSHA has long struggled with the need to develop practical yet comprehensive standards for walking working surfaces and personal fall protection systems. OSHA is analyzing the record to determine if it is appropriate to propose the standard or issue a final rule based on the existing record. Similarly, the standards that have been repeatedly streamlined throughout OSHA’s history have brought forth new efforts to modify existing standards in the safety area concerning confined spaces1 and operator training for forklifts.2 Operation of powered industrial trucks, such as forklifts, has remained one of the leading causes of fatalities in the private sector. OSHA estimates that there are 110 fatalities and 95,000 injuries annually in the workplace from this cause, and its belief that the older standard has proven to be ineffective in reducing the number of accidents involving powered industrial trucks as it has with confined spaces.3 Consequently, there has been strong interest that OSHA issue a new standard to more effectively address this hazard. OSHA has revised the former standard to increase its effectiveness by requiring, in performance language, initial and refresher training and evaluation as necessary. The frequency of the refresher training is based upon the vehicle operator’s knowledge, skills, and abilities to perform the job safely. OSHA also states in the revised rule what information the training should include. OSHA also proposed to allow more flexibility in the point of retrieval line attachment and asked whether the standard should provide affected employees or their representatives with the opportunity to observe the evaluation of confined spaces, including atmospheric testing, and to have access to evaluation
Geneva, Switzerland (1985).
1Permit Required Confined Spaces General Industry: Preventing Suffocation/Explosions In Confined Spaces, 29 C.F.R. §1910.146. OSHA issued a final standard governing employee entry into confined spaces in general industry on January 14, 1993 (58 Fed. Reg. 4462). The standard was challenged by a number of parties including the United Steelworkers of America. OSHA reached a settlement agreement with the Steelworkers in June 1994. As part of this settlement agreement, OSHA issued a proposal on November 28, 1994 (59 Fed. Reg. 60735), to clarify paragraph (k) of the rule, Rescue and Emergency Services.
2 Powered Industrial Truck Operator Training (Industrial Truck Safety Training, 29 U.S.C.A. §655; 33 U.S.C.A. §941; 40 U.S.C.A. §333; 29 C.F.R. §§1910.178, 1915.120, 1917.1, 1918.1, 1926.602.
3Hearings about confined spaces regulatory modifications were held September 27-28, 1995. The post-hearing comment period ended on December 20, 1995. In February 1996, the record was closed. The final rule was issued on December 1, 1998 (63 Fed. Reg. 66018).
results.
Not exempt, but treated differently by OSHA enforcement
For small businesses and middle-sized employers, the old-fashioned head-in-the-sand mentality doesn’t work anymore. The long-standing tort standard for liability, based on whether an employer “knew or should have known” about hazards and, therefore, should have informed workers no longer holds water as an affirmative defense against claims that hazards should have been disclosed (if it ever was a valid defense, at all). This change in the legal landscape has occurred dramatically with the dawn of the technology age that places many types of important empirical or quantitative data in the hands of people who never before had access to such information. Among those who now have access to the information are consultants, owners of small enterprises, safety engineers or supervisors, and even individual workers. Information may be obtained through public libraries, trade associations, trade union databases, and from the Web pages of regulatory agencies (such as EPA, National Institutes of Health and OSHA itself). Because of the technology explosion, information that was once costly to generate (if not prohibitively expensive for a small employer to procure generations before) is now available to any employer. For workers, employers and their consultants or advisors, including law firms, there is remarkably complete access to an abundance of Web-based sources free of charge or for a small fee–never more than a few keystrokes away. Technical information, on-line subscription chat services, and on-line help resources make information available literally at the fingertips of any small business, by typing in the correct search terms after dialing onto the Web.
For any small business that uses simple tools like an electronic spreadsheet for accounting or computer for processing, or does marketing using e-mail, there would be no credible defense against a claim that they “knew or should have known” about hazards that should have been disclosed to workers in the course of employment under OSHA regulations or local right-to-know laws. For such employers, it is now true that access to the highest quality information and on-line assistance from otherwise highly paid experts is just a few taps on the keyboard away. OSHA, state and municipal governments, and the Canadian government also offer on-line access with free consultation. Thus, there is literally no limit on the amount of information that can be amassed or applied by even the smallest employer, sole practitioner or independent contractor who, in the past, was not considered to have the training, resources or overall education and research facilities to learn about occupational health hazards. The available information allows these parties to perform job hazard analysis or oversight, right-to-know training regarding hazardous materials and other common requirements of OSHA and other regulatory agencies. But Web-based training, use of the Internet for distance learning, and on-line access to members of international Committees of Experts, means that for small businesses and middle-sized employers who were traditionally (but not statutorily) exempted from OSHA enforcement, the age of impunity for small business is over.
Therefore, it can be expected that the common-law standard of tort liability based on what an employer “knew or should have known” can now be applied with greater rigor to small businesses and independent contractors, even in those instances where the protected employee under OSHA or other regulations is the employer itself. This is a stark contrast to previous generations where small employers were not viewed as having the ability to access high-quality recent scientific data, and were exonerated from liability in most cases. The recent trend in
regulations and case law demonstrates this fundamental business reality very clearly. In sum, the new case challenging NIOSH’s ability to employ its scientific expertise for the purpose of peer review and the design, development and completion of a research protocol unfortunately muddies these already-clouded waters even further. The Cargill v. United States case suggests that courts are willing to second guess science and perhaps even reluctant to step back and refrain from making judgment on the data presented; complex scientific evidence has become so intertwined into the occupational health legal and regulatory fabric. The impact of this and similar cases requires even greater diligence, awareness of new issues, and multi-disciplinary committee involvement, in order to touch all the right bases in an in-house compliance program for occupational safety and health. Without such broad-based support at its base, there is little predictability or consistent support available for even the most detailed, well thought-out in-house programs. Flexibility, the ability to assess risks, and the ability to fold in new information and then include all relevant constituencies by “selling the program” are more important after this decision than ever before.4
It is clear from both the text of the report and the ensuing controversy that small and middle sized businesses will not be exempted from these provisions, which embrace office workers and encompass the problems faced by all staff, including the small business owners themselves.5
The small business compliance staff are therefore prudent to:
• Determine whether medical removal or other provisions are necessary to “to achieve the goal of prompt and complete reporting of MSDs” and solicit comment on the alternative of excluding medical removal provisions from the rule;
• Examine whether a more limited form of medical removal provisions could be useful, such as a shorter time limit for coverage or a smaller percentage of income replacement;
• Assess whether alternatives other than medical removal provisions would be as effective in achieving the draft’s goals of full reporting;
• Examine whether medical removal provisions should be phased in over a period of time;
• Evaluate the usefulness of checklists to help employers identify hazards, and if OSHA develops checklists for enforcement personnel, they should also be made available to the public;
• Clarify criteria for determining the work-relatedness of musculo-skeletal disorders, and clarify that employers may rely on a physician’s opinion in making a work-related determination;
• Clarify that the draft proposed rule “only requires the employer to control hazards to the extent feasible for that firm” and provide examples of similar work activities that would or would not be covered by the standard;
4See BNA Daily Labor Report, May 6, 1999, 87 DLR A-4 (1999), Small Business Panel Report Questions Medical Removal Provisions, Costs of Rule.
5Small businesses represented on the panel include a sequined fabrics factory, poultry processor, tool and machine company, funeral home, pediatric dentist, restaurant and caterer, air transporter, and safety and health consulting firm.
• Discuss whether a safety and health program rule would adequately address musculo-skeletal disorders and eliminate the need for a separate ergonomics rule; and
• Further explain the agency’s nonregulatory guidance efforts to date, “the basis for its belief that a significant risk remains, and why it believes a proposed rule is now appropriate to reduce that risk.”
1:70. Development of compliance policies to reflect changing demographics: Maturing nurses
The “baby boomer” generation, born between 1946 and 1964, will begin to become senior citizens in the next few years. This so-called “graying” population of 85 million Americans will constitute an increasingly large proportion of the workforce, partially because of the increased cost of living and increased longevity have made it necessary for many wage-earners to remain in the workforce beyond the previous level of “retirement” years. In addition, nursing still faces a decline in the available labor pool1 which implicitly provides an incentive for continued employment by senior nurses who are sufficiently tenured to attain a higher salary than entry level workers. Nursing has traditionally been a physically demanding occupation, but it nonetheless provides an example of a profession that will soon confront the demographics of an aging workforce.3
The on-going skills among nurses will face an increased demand once baby boomers significantly increase demands for health care services. According to Occupational Health and Safety Magazine, “The American Nurses Association 2001 Nursing World Health Safety Survey reported 76% of the 4,826 nurses surveyed believe unsafe conditions interfere with their ability to deliver quality care. Furthermore, 88% said health and safety concerns influence their decision to continue nursing.”4 Additionally, economic researchers attribute the acute shortage of nurses to the increasing average age of this group and to dissatisfaction with nursing as a career, due in part to low wages and also due to the fact that nursing is undervalued and less respected compared to allied health professions that are available with similar training, such as: LNP, social worker, public health worker, lab assistant or clinic support staff.5 For these reasons, the number and proportion of nurses working at older ages is anticipated to be significantly higher
1According to the U.S. Census Bureau, 4.5 million people over age 65 currently remain in the workforce. The World Health Organization (WHO) has defined the ;“aging worker;” as one over the age of 45 years. The National Institute of Occupational Safety and Health (NIOSH) has estimated that 40% of American workers will be 45 or older by 2010, and that 17% will be older than 55. World Health Organization: Aging and work capacity (Tech Rep Ser 835). Geneva. 1993, WHO; K. C. Fleming et al., Caregiver and clinician shortages in an aging nation. Mayo Clinic Proc 78(8)1026-40 (2003); C. Palmer, The nursing shortage: an update for occupational health nurses. AAOHN J 51(12):510-3 (2003).
3See Paul Rountree, Maturing Nurses (draft paper) (on file with author).
4Hans Sigvardson & Betty Bogue, No Lift Success Story, Occupational Health and Safety Magazine 46-50 (2004).
5See generally Paul Rountree, Maturing Nurses (draft paper) (on file with author).
than was the experience of nursing in previous decades. The average age of the working registered nurse (RN) is reported to range from 42.7 to 44.5 years and it is predicted to reach age 50 by the year 2010.6 Despite the increased prevalence of outpatient procedures, which reduces the demand and skill level needed for nurses during routine procedures, the corollary of this change in the delivery of health care is that inpatients have more severe injury or illness than patients in the past, thus also placing greater demands upon those who remain in the nursing profession.7 Although logic dictates that a good in-house occupational health compliance program and improvements in the working conditions are key to retaining high quality staff,8 available studies suggest that managers have little interest in addressing the concerns of seasoned staff or, in particular, older nurses.9 Nursing has traditionally been a physically demanding occupation. Issues of concern, such as the requirement for frequent mandatory overtime, 12-hour shifts, and work-related stress as a result of restructuring the organization of health care delivery create stressors which could be reduced dramatically with good planning. Musculo-skeletal injuries, particularly from lifting activities, are common problems for health care workers. For example, the Bureau of Labor Statistics (BLS), has reported that over 10,000 Registered Nurses lost time from injuries involving the back or neck in 2002.10 BLS estimates that a back injury occurs every 30 minutes among health care workers, and BLS therefore classifies health care patients as a direct cause of on-the-job injury.
Nursing: Changing Requirements for Nurses
Despite these significant demographic changes that should redefine the design of effective occupational health programs for nursing, working conditions for nurses have changed little over the past several decades. There is an opportunity for in-house compliance staff, therefore, to lead the way towards beneficial transformation of old compliance programs, and thereby also rejuvinate the justification for in-house compliance programs. For example, new devices that have been designed to remove the hazards of lifting that are commonplace in the
6C. Zwerling et al., Occupational Injuries Among Older Workers with Visual, Auditory, and Other Impairments: A Validation Study, J. Occup. Environ. Med. 40(8): 720 (1998); see also S.J. Herdman et al., Strategies for Balance Rehabilitation: Fall Risk and Treatment. Ann NY Acad. Sci. 942:394-412 (2001) (cited in Paul Rountree, M.D. Maturing Nurses (draft paper) (on file with author)).
7D.P. Milzman et al., Pre-existing Disease in Trauma Patients: A Predictor of Fate Independent of Age and Injury Severity Score. J. Trauma 32(2): 236-43 (1992). See also C.W. Schwab et al., Geriatric Trauma: Patterns, Care, Outcomes, in Trauma (4th ed. 1999).
8See Paul Rountree, Maturing Nurses (draft paper) (on file with author).
9Galinsky T, Waters T, Malit B. Overexertion injuries in home health care workers and the need for ergonomics. Home Health Care Services Quarterly 20(3):57–-73 (2001).
10Bureau of Labor Statistics, Lost-Worktime Injuries and Illnesses: Characteristics and Resulting Days Away from Work, 2002 (Mar. 25, 2004) bls.gov/news.release/archives/osh2_03252004.pdf (last visited Apr. 18, 2005).
daily life of nurses can be used, in a manner that is safer for all workers,14 but have not become part of the standard practice.15 Employers would do well to integrate such new technologies into their in-house compliance programs. Researchers have noted that injury rates vary by work setting and note that highest rates of injury occurred in the intensive care units (ICU) and in Orthopedics and Neurological Nursing areas.16 Others have noted that the health care industry in general has approximately twice the risk of overexertion injury than the overall national rate, and that home health care workers have over three times the national rate of these injuries. Recent studies suggest that preventative lifting devices are available in approximately half of the work settings, and designated lifting teams are utilized in about 10% of the facilities.17
Several studies have noted that extended duty hours are related to increased risks for various injuries.18 For example, researchers Novak and Auvil-Novak have reported on 45 intensive care unit nurses who worked 12-hour shifts. They noted that 95% of the nurses had a motor vehicle accident or “near-miss” over a one year period while driving home from night shift work.19 Available Injury Data, such as a survey reported by the American Nurses Association in 2001 suggested that 40% of nurses were injured at work during the previous year, but almost 75% of these injuries were never reported.20 Menzel has suggested that the use of nonstandardized symptom surveys, variation in case definitions, and other inconsistencies makes the comparison of various studies difficult. It may be, however, that back pain prevalence is a
14E. Haley, One Approach to Patient Lifting, Can Nurse. 90(1):57-8 (1994).
15See Hans Sigvardson & Betty Bogue, No Lift Success Story, Occupational Health and Safety Magazine 46;-50 (Apr. 2004) (including photographs and describing new lifts, ““powered by long-life batteries and directed by easy-to-use hand-held remote controls, some models are rated up to 660 pounds capacity. … Mobile models are easy to move, fit under low beds, straddle mattresses on the floor, lift high enough for whirlpools, have a wheelbase that fits standard bedroom doors, and possess the capacity to pick patients up off the floor.””).
16R.H. Goldman et al., Prioritizing Back Injury risk in hospital employees: application and comparison of different injury rates. J Occup Environ Med 42(6):645-52 (2000).
17
A. M. Trinkoff et al., Workplace Prevention and Musculoskeletal Injuries in Nurses, JONA 33(3):153-7 (2003).
18K. Hanecke K, Accident Risk as a Function of Hours at Work and Time of Day as Determined from Accident Data and Exposure Models for the German Working Population, Scand. J. Work. Environ. Health 24 (Supp. 3):43–-48 (1998). See also: Macias DJ, Hafner J, Brillman JC, Tandberg D. Effect of time of day and duration into shift on hazardous exposures to biological fluids. Acad Emerg Med 3(6):605–-10 (1996).
19R. D. Novak & S. E. Auvil-Novak, Focus Group Evaluation of Night Nurse Shiftwork Difficulties and Coping Strategies, Chronobiol. Int. 13(6):457–-63 (1996).
20J. Houle, Nursing World.org Health & Safety Survey (Sept. 2001).
more accurate indicator of injuries than is claim data.21 Information from the Bureau of Labor Statistics (BLS) suggests that occupational injuries and illnesses among nursing and personal care facilities has been relatively consistent over the past 5 years, averaging approximately 200,000 recordable cases per year
Interventions: The Benefits of A Flexible In-house Compliance Program
Steiler and other researchers23 have reviewed evidence-based interventions for prevention of work-related musculo-skeletal injuries among nurses. They have suggested that no single strategy is likely to be effective, and that multiple interventions are necessary to have an effective program. These include engineering controls, administrative support, and training or education. Therefore the most useful approach to preventive strategies incorporates the best practices of sound occupational health programs: employee involvement in programs that solicit employee concerns with impunity is vital, followed by the development of meaningful strategies that take into account employee concerns, which are supported by the messages and actions of top level management. Some questions of interest for future study, to establish a solid baseline and then measure the effectiveness of compliance programs includes, but is not limited to the following: (1) What is the relationship between job satisfaction or job stress and the likelihood of prolonged absence after an injury?, (2) What specific measures of job stress should be examined? (Examples: job control issues, scheduling demands, psychosocial stresses, physical demands, output demands, and depression scales), (3) What are the off-the-job nursing demands among mature nurses caretaking for young children or elderly parents among this cohort of the so-called sandwich generation?, (4) What are the psychological benefits of full participation in family, with its concomitant benefits to family well being, and does this additional nursing burden at home undermine or improve the overall health and well-being of mature nurses?, (5) What is the frequency and relationship between co-morbid conditions and length of absence from work after an injury?, and (6) Do fitness and exercise programs improve job satisfaction or reduce the likelihood of injury?24
1:71. Genetic testing in the workplace
Although use of emerging genetic technologies for employment is controversial and possibly premature, selection based on certain genetic factors has historically been viewed as acceptable from an employer’s perspective and from society’s view. OTA captured the essence of this problem in 1983, noting that immutable genetic characteristics invariably play a role in selecting employees, “from basketball to neurosurgery.” 1 These traditional preconceptions
21N. N. Menzel, Back Pain Prevalence in Nursing Personnel: Measurement Issues, AAOHN J. 52(2):54;-65 (2004).
23C. B. Steiler et al., Use of Evidence for Prevention of Work-Related Musculoskeletal Injuries, Orthopaedic Nursing 22(1):32–-42 (2003).
24C. B. Steiler et al., Use of Evidence for Prevention of Work-Related Musculoskeletal Injuries, Orthopaedic Nursing 22(1):32-42 (2003).
1U.S. Congress, Office of Technology Assessment, The Role of Genetic Testing in the Prevention of Occupational Disease, OTA-BA-194 (Washington, D.C.: U.S. Government Printing Office, April 1983) at 16 (hereinafter OTA 1983).
regarding the appropriate match between work an inborn genetic ability may change dramatically when scientific understanding of the genetic mechanisms for controlling and expressing such attributes as aptitude, intelligence or chemical sensitivity becomes more refined and as the ability to increase desirable characteristics or remove undesirable characteristics becomes realized through gene therapies that are yet to be discovered.
Concerns about potential discrimination and the need to protect employees’ genetic privacy confront genetic testing programs resulted in the passage of the Genetic Information Non-Dicrimination Act (“GINA”) 21. No express language in relevant OSHA standards for example, requires employees to participate in or to give their informed consent to testing, but OSHA also does not condone mandatory testing. One important principle regarding genetic technologies involves the limitations of genetics itself: predisposition to occupational disease is not controlled by genetic factors alone. Factors such as occupational exposure to toxic or hazardous substances may also interact with the genetic propensities and confounders such as age, sex, preexisting illness, nutritional status, lifestyle, smoking history, and prior exposure to environmental stresses.3 One method of preventing exposure for susceptible workers, however, may be exclusion. This approach is unacceptable because it runs the risk of masking major occupational safety and health issues and is illegal under USA discrimination laws. The U.S. Supreme Court’s decision in UAW v. Johnson Controls1 mandates gender-neutral non-discriminatory occupational safety and health policies.2 Coverage exists for people who have manifested genetic disability under the Americans with Disabilities Act (ADA), so long as they can perform the essential functions of the job. ADA prohibits the employer’s use of medical examinations in placement and also prohibits discrimination by employers against qualified disabled persons. Disability cannot be used as an excuse to prevent employment without the employer risking monetary penalties for discrimination. If disabling genetic propensities are
21 USA “GINA” Genetic Information Nondiscrimination Act of 2008 GINA prohibits discrimination based on genetic information with respect to health insurance and employment. See: International Occupational Hygiene Assocation (IOHA) newsletter Dec 2009 http://www.ioha.net/newsletter.html
3OTA 1983, note 1, at 12.
1International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 55 Fair Empl. Prac. Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H. Dec. (CCH) P 29256 (1991).
2The U.S. Supreme Court has held that excluding women from a workplace because of their high risk (from lead exposure) constitutes discrimination, thus requiring employers to reduce the workplace risk and then employ them. Employers who fail to meet these legal requirements face penalties such as payment of back pay and other remedies. There is reason to believe that such prohibitions against discrimination will be extended to other genetic factors, beyond gender. Brief of Amici Curiae on Behalf of Industrial Hygiene Law Project, UAW v. Johnson Controls (1990).
granted protection under an interpretation of ADA’s criterion (“regarded as impaired,” which is understood to accord statutory protection to healthy people who are perceived as disabled in other contexts) then employers who conduct genetic testing may be required to employ people with potential impairments, regardless of dangerous exposures in the workplace.
Therefore, compliance with this cluster of laws means that employer based programs must be very careful to ensure that the use of genetic testing does not result in excluding workers unfairly from jobs that they could otherwise perform with accommodations such as special protective equipment, or that they could perform without special accommodations while they remain asymptomatic for late-onset nonoccupational disease. Consequently, any attempt at genetic screening or monitoring in the workplace should make every effort to preserve job security in order to avoid these thorny problems. Because of the potential discrimination dimensions of genetic testing in the workplace, the reliability of scientific data should also be scrupulously questioned and the deliberative process accurately recorded when making genetic testing decisions, so that such decisions could be justified with ample reliable scientific evidence if challenged by OSHA or in court. Another benefit of a good compliance program is its ability to safeguard gen4tic information. Genetic information raises unique issues of medical privacy because genetic information by its very nature provides a “future diary” of information about people other than the individual who has been tested, such as parents, children, grandchildren, siblings and distant relatives, who may share the same genetic information concerning mutations or unusual traits.6
1:73. Genetic testing in the workplace– Questioning the validity of genetic tests
In its classic discussion of the proposed genetic testing techniques, OTA raised two questions: whether the test can reliably identify either the genetic trait or specific damage, and whether the particular trait or damage causes the individual to be at increased risk for disease. To answer these questions, criteria regarding validity, reliability, predictive value and relative risk will again be most significant. In 1983 and again in 1990, OTA found that none of the genetic tests evaluated were appropriate for routine use in an occupational setting. OTA indicated, as it had in earlier reports, that major emerging scientific issues are reliability, validity and quality control.1 Improved technology may increase efficiency and lower the cost of mass screening, but that “the environmental agents that trigger the predisposition often remain the wild card.”2 It may
6Annas, Privacy Rules for DNA Databanks: Protecting Code ““Future Diaries,”” 270 JA MA 2346 (1993).
1“Limits of Molecular Based Tests: No matter what the mode of screening, two questions must be asked before administration of the test: (1) does the test reliably identify either the genetic trait or specific damage? and (2) does this particular trait or damage cause the individual to be at increased risk for disease?” OTA 1990 at 83. In addition, OTA noted,“While technologies associated with genetic monitoring and screening in the workplace have continued to advance, OTA found no significant change in the use of these technologies since 1983. Thus, several of the policy issues and options for Congressional action offered in the 1983 OTA report are still valid and remain unchanged.” OTA 1990 at 24.
2OTA 1990 at 95. New methods may provide better estimates of the health effects of low doses for some mutagens, as well as providing qualitative data on the nature of mutation. … If the tests are valid and reliable, establishing procedural safeguards and designing well-conceptualized test protocols can avert erroneous and
be years, however, before the scientific controversies surrounding these questions are resolved.
1:74. Genetic Information Non-Discrimination Act of 200822
Passage of the federal Genetic Information Nondiscrimination Act of 2008 (GINA) 1, by Congress is one of several federal laws that seek to protect the information arising from the study of the human genome. Key policy questions of personal privacy and the protection against discrimination based on genetic information have been at the forefront of research issues since the inception of the Human Genome Initiative (HGI), a multibillion dollar project that successfully charted the sequencing of key genes and biomarkers across a decade, ending in 2000. In the U.S., the federal government, in competition with many other nations, spent over three billion U.S. dollars on the project, which has yielded amazing information and gene therapies for conditions that were considered untreatable in the past. GINA represents the irst step towards codification in a long standing public policy debate about the gene-environment interaction and how law will integrate the information genetic science produces. The GINA law itself has several key interesting features. One of the biggest problems facing individuals who have a genetic condition is the reality that they share the illness with many people, and unlike a cold or flu, its presence can be detected in one person by studying the genetic composition of other family members in some cases. Thus, genetic information brings a new twist to issues of privacy: can the information about one person be legally or morally gleaned from another, and if so is that for a benefit, such as research and identifying a population to target with treatments, or for ill use, such as preventing employment or refusing to insure them? And, whose information is it anyway: the individual, the genetic family, or the government who funded the research or the society who needs to know about genetic conditions for use by future generations?
Convergence of new genetic technologies as applied through pathbreaking research may redefine our collective understanding of “safety,” “health,” or “disability” and may challenge both the fundamental fairness and scientific underpinning of existing standards, which presumes to protect all workers equally without stratifying the requirements of standards to meet the special needs of particular workplace settings, particular genetic risks or specially vulnerable populations. In the 20th century, OSHA in particular refused to allow such stratification even in the case of reproductive health hazards, which impact female workers very differently from male workers, regardless of issues during pregnancy such as fetal protection.The role of genotype, genetic propensities, even the very nature of the interaction between these genetic players and the work environment ultimately plays an unknown but important role in our individual ability to
misleading conclusions. … Since the 1983 OTA report there have been several technical advances in genetic screening tests. In addition, several new susceptibilities to occupational disease have been identified, and progress in detecting some non-occupational disorders has been made.
22 UNITED STATES PUBLIC LAWS 110th Congress — Second Session Convening January 04, 2008PL 110-233 (HR 493) May 21, 2008 GENETIC INFORMATION NONDISCRIMINATION ACT OF 2008 An Act To prohibit discrimination on the basis of genetic information with respect to health insurance and employment.
1Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, 122 Stat. 881 (May 21, 2008), available at http://www.eeoc.gov/laws/statutes/gina.cfm. See §4:46.
perform work today and tomorrow. By creating GINA, Congress recognized that the role of genetic testing, monitoring and research in the workplace is inevitable, and equally inevitable is a discourse fraught with painful questions about as: eugenics, social engineering, stigma, genetic discrimination, potential liability, assumption of the risk, right to know and health care costs
1:74A. Genetic Information Nondiscrimination Act (GINA) of 20081– The policy dilemma approached by GINA
No one wants to make employers pay for problems that are inherited. Existing social policies, such as the tradition that state-based funds for workers’ compensation fill the void when the injury or occupational illness comes from previous employment, is an example of the precedents for this point. At the same time, society must reconcile this fundamental notion of preventing the unfairness to pay with three important realities:
(1) Employers remain responsible for providing employment and places of employment that are free from recognized hazards under Section 5(a)(1) of the Occupational Safety and Health Act of 1970 (OSH Act). This is without regard to the origin of the effect of the hazard, so long as the employer has control of the premises where the recognized hazard is involved. Certainly, genetic technologies will reveal connections between workplace exposures and genetic transformations in workers. Once these connections have been discovered within the scientific community, this will expand the scope and breadth of the term “recognized hazards,” a concept broached upon but not fully examined in GINA.
(2) ADA–The Americans With Disabilities Act-applies to genetic conditions, so knowledge in the scientific community that meets the employers obligation to provide safe and healthful employment and places of employment does not mean that an employer can simply fire the worker at risk to prevent harms revealed through genetic technologies. Employers cannot easily escape the co-equal obligation to provide reasonable accommodations to people who can perform the essential functions of their work, despite concerns about genetic factors in the workplace that were heretofore unknown or misunderstood.
(3) Lastly, employers cannot use genetic information about a worker to exclude them or their dependents from an employer based health insurance program. This is particularly vital in a country that has no national health insurance and tens of millions of people are uninisured or underinsured.
For this reason GINA is both sweeping and futuristic at the same time. TITLE I–GENETIC NONDISCRIMINATION IN HEALTH INSURANCE protects workers and their families who apply for employer based coverage by prohibiting the use of genetic information, broadly defined, in policy coverage decisionmaking. Many States have enacted some type of genetic non-discrimination law, but these laws vary widely with respect to their approach, application, and level of protection. Congress has collected substantial evidence that the American public and the medical community find the existing patchwork of State and Federal laws to be confusing and inadequate to protect them from discrimination. Therefore Federal legislation establishing a
1Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, 122 Stat. 881 (May 21, 2008), available at http://www.eeoc.gov/laws/statutes/gina.cfm. See §4:46.
national and uniform basic standard is necessary to fully protect the public from discrimination and allay their concerns about the potential for discrimination, thereby allowing individuals to take advantage of genetic testing, technologies, research, and new therapies.This law goes much further than laws that prevent adverse insurance decisions based on “pre-existing conditions” such as the Health Insurance Portability and Accountability Act (HIPAA) of 1996. HIPAA did not specifically discuss genetic conditions, although coverage to provide health insurance could be implied. By contrast, GINA uses strong and clear language to provide coverage to everyone.
1:74b. Genetic Information Nondiscrimination Act (GINA) of 2008– Remedies and enforcement
GINA also represents path-breaking legislation because of its clear message regarding remedies and enforcement1. Penalties and methods to rectify harm are characteristically vague in antecendent anti-discrimination laws such as the Civil Rights Act and the Americans with Disabilities Act, but not so with the new generation marked by GINA.
(1) IN GENERAL. The powers, procedures, and remedies provided in sections 705, 706, 707, 709, 710, and 711 of the Civil Rights Act of 1964 to the Commission, the Attorney General, or any person, alleging a violation of title VII of that Act (42 U.S.C. 2000e et seq.) shall be the powers, procedures, and remedies this title provides to the Commission, the Attorney General, or any person, respectively, alleging an unlawful employment practice in violation of this title against an employee described in section 201(2)(A)(i), except as provided in paragraphs (2) and (3).
(2) COSTS AND FEES. The powers, remedies, and procedures provided in subsections (b) and (c) of section 722 of the Revised Statutes of the United States (42 U.S.C. 1988), shall be powers, remedies, and procedures this title provides to the Commission, the Attorney General, or any person, alleging such a practice.
1:74C. Genetic Information Nondiscrimination Act (GINA) of 2008– OSHA role regarding genetic monitoring
The Genetic Information Nondiscrimination Act (GINA) 1 specifically charges OSHA with authority to tease apart the conflicting public interests that Congress was unable to resolve. Specifically, data that is fraught with a strong potential for untraced misuse must be collected, stored, and analyzed nonetheless. OSHA is one of several agencies whose regulations regarding such genetic information will be given primacy, possibly to supercede the terms of the GINA itself, depending on the circumstances.
GINA states:
(i) any Federal genetic monitoring regulations, including any such regulations that may be promulgated by the Secretary of Labor pursuant to the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), the Federal Mine Safety and Health Act of 1977, or the Atomic Energy Act of 1954, or,
1Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, 122 Stat. 881 (May 21, 2008), available at http://www.eeoc.gov/laws/statutes/gina.cfm. See §4:46.
1Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, 122 Stat. 881 (May 21, 2008), available at http://www.eeoc.gov/laws/statutes/gina.cfm. See §4:46.
(ii) State genetic monitoring regulations, in the case of a State that is implementing genetic monitoring regulations under the authority of the Occupational Safety and Health Act of 1970.
Parts of these jurisdictional limits are also quite broad:For example, data can only be kept if in “aggregate terms that do not disclose the identity of specific employees;” or can demonstrate an exemption to these provisions “where the employer conducts DNA analysis for law enforcement purposes as a forensic laboratory or for purposes of human remains identification, and requests or requires genetic information of such employer’s employees, but only to the extent that such genetic information is used for analysis of DNA identification markers for quality control to detect sample contamination.” Therefore is a clear task ahead for OSHA and the compliance community to implement these regulations in an even-handed manner. The statute itself has plain language that reflects the unresolved issues regarding the protection of worker information regarding genetic testing and the clear and necessary mandate to collect and apply information gathered during genetic monitoring of the biological effects of toxic substances in the workplace. Lastly, addressing the pivotal concern about privacy and confidentiality that is at the heart of all genetic discrimination concerns,
SEC. 206. CONFIDENTIALITY OF GENETIC INFORMATION states:
(a) TREATMENT OF INFORMATION AS PART OF CONFIDENTIAL MEDICAL RECORD.
If an employer, employment agency, labor organization, or joint labor-management committee possesses genetic information about an employee or member, such information shall be maintained on separate forms and in separate medical files and be treated as a confidential medical record of the employee or member. An employer, employment agency, labor organization, or joint labor-management committee shall be considered to be in compliance with the maintenance of information requirements of this subsection with respect to genetic information subject to this subsection that is maintained with and treated as a confidential medical record under section 102(d)(3)(B) of the Americans With Disabilities Act.
Therefore, (b) LIMITATION ON DISCLOSURE has many important exceptions to protect existing safety and health and employment administering institutions, such as disclosure:
(1) to the employee or member of a labor organization (or family member if the family member is receiving the genetic services) at the written request of the employee or member of such organization;
(2) to an occupational or other health researcher if the research is conducted in compliance with the regulations and protections provided for under part 46 of title 45, Code of Federal Regulations;
(3) in response to an order of a court, except that:
(A) the employer, employment agency, labor organization, or joint labor-management committee may disclose only the genetic information expressly authorized by such order; and
(B) if the court order was secured without the knowledge of the employee or member to whom the information refers, the employer, employment agency, labor organization, or joint labor-management committee shall inform the employee or member of the court order and any genetic information that was disclosed pursuant to such order;
(4) to government officials who are investigating compliance with this title if the information is relevant to the investigation;
(5) to the extent that such disclosure is made in connection with the employee’s compliance with the certification provisions of section 103 of the Family and Medical Leave Act of 1993 (29
U.S.C. 2613) or such requirements under State family and medical leave laws; or
(6) to a Federal, State, or local public health agency only with regard to information that is described in section 201(4)(A)(iii) and that concerns a contagious disease that presents an imminent hazard of death or life-threatening illness, and that the employee whose family member or family members is or are the subject of a disclosure under this paragraph is notified of such disclosure.
In conclusion, all health professionals responsible for safety and health in the workplace should be careful that they are not caught in the chain of a greater policy inadvertently creating genetic discrimination, when exercising their duty to recommend in house procedures for safe and healthful working conditions.
1:75: Conflicts or Cooperation: Overlap between OSH Act and Disability Laws
The U.S. Supreme Court case, Chevron v. Echazabal,6 explores some of these conflicting arguments between occupational safety and equal opportunity for disabled individuals.
Mario Echazabal began working at an oil refinery owned by Chevron in 1972. Employed by various contractors, Echazabal worked at different times for Chevron as a laborer, helper, pipefitter, and on the fire watch, however he worked primarily in the refinery’s coker unit.7 In 1992, he applied to work directly for Chevron in the refinery’s coker unit. Chevron made him an offer of employment, contingent upon his passing a physical examination. The examination revealed that Echazabal’s liver was releasing certain enzymes at a higher than normal level. Based on that examination, it was concluded that Echazabal’s liver might be damaged by exposure to the solvents and chemicals present in the coker unit. Chevron therefore rescinded the job offer.8 After Echazabal consulted several doctors, he was diagnosed with asymptomatic, chronic active Hepatitis C, a viral infection of the liver.9 Echazabal continued to work as an employee of Chevron’s maintenance contractor.10
In 1995, he again applied to Chevron for a position as a plant helper in the coker unit. Chevron again made him an offer contingent on a physical examination.11 Echazabal’s examining
6See Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 122 S. Ct. 2045, 153 L. Ed. 2d 82, 67 Cal. Comp. Cas. (MB) 781, 13 A.D. Cas. (BNA) 97 (2002); see also relevant appeals by Petitioner, Respondent and Amicus Curiae, in Supreme Court of the United States, No. 00-1406 (Feb. 18, 2002).
7
Pet. App. 2a.
8Pet. App. 2a.
9Pet. App. 3a, 35a.
10Pet. App. 2a.
11Pet. App. 3a, 35a.
physician concluded that further exposure to chemicals and solvents like those used in the coker unit would seriously endanger his health and, in certain circumstances, could be fatal.12 Chevron’s medical director agreed that Echazabal could not work in the coker unit without risk to his own health.13 Based on those findings, Chevron refused to hire him.14 Chevron also instructed its maintenance contractor to ensure that he was not exposed to solvents and chemicals; and, as a result, he could no longer work at the refinery. Then, Echazabal brought an action in state court alleging discrimination on the basis of a disability that violated Americans with Disabilities Act (ADA). Chevron removed the case to the U.S. District Court for the Central District of California, where the district court granted summary judgment in favor of Chevron on all of Echazabal’s claims. On the ADA claim, the district court found that Chevron’s refusal to hire Echazabal was lawful because, as a result of his liver condition, since his working in the refinery would have posed a direct threat to his health. Nonetheless, the district court stayed the proceedings against the maintenance contractor, and certified several issues for appeal, including the propriety of the grant of summary judgment on the ADA claim.
The District Court granted Chevron summary judgment, but the Ninth Circuit reversed, finding that the regulation exceeded the scope of permissible rulemaking under the ADA. In the U.S. Supreme Court, the employer defended under an Equal Employment Opportunity Commission (EEOC) regulation permitting the defense that a worker’s disability on the job would pose a direct threat to his health. The U.S. Supreme Court held that The ADA permits the EEOC’s regulation.15 The ADA’s discrimination definition covers several barriers to equal employment opportunity, such as “using qualification standards … that screen out or tend to screen out [such] an individual.”16 The statute also creates an affirmative defense for an action under a qualification standard “shown to be job-related … and … consistent with business necessity,” which “may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.”17 The Supreme Court approved of the notion, however, that the EEOC’s regulation carries the defense one step further, allowing an employer to screen out a potential worker with a disability for risks on the job to his own health
12Pet. App. at 38a.
13Pet. App. at 38a.
14
Pet. App. at 3a.
15
Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 122 S. Ct. 2045, 153 L. Ed. 2d 82, 67 Cal. Comp. Cas. (MB) 781, 13 A.D. Cas. (BNA) 97 (2002).
16
42 U.S.C.A. §12112(b)(6).
17
42 U.S.C.A. §12113(b).
or safety.18 Thus, even though the case centered on the scope of EEOC’s ability to craft regulations affirmative defense regulations, the decision has important ramifications for in-house occupational health programs because it increases the ethical obligation and legal burden of staff who work in those programs to ferret out both: unacceptable risks and myths or prejudices about risk that ought not prevent people from being granted job assignments.
Even after the Chevron U.S.A., Inc. v. Echazabal,1 ruling by the U.S. Supreme Court, it remains true that disabled parties protected by the Americans with Disabilities Act (ADA) are entitled to equal opportunity in employment compared to other applicants, so long as there is no special risk to others or oneself from such employment.2 For this reason, in-house occupational health compliance teams, including occupational physicians and nurses as well as representatives of general counsel and frontline employees, confront an unusual confluence of information from a variety of medical, scientific and technical systems when fashioning or implementing effective in-house policies. A fundamental tenet of occupational medicine requires each physician to prevent harm, as exemplified by the American College of Occupational and Environmental Medicine’s Code of Ethics.3 Similarly, although the cause of injury does not matter from the standpoint of ADA jurisdiction, there remain unequal and intractable differences concerning the impact of working conditions on the potential risk to subgroups of exposed populations. As Echazabal demonstrates, there are instances when the risk to oneself is simply too high, or when the risk of others crosses a line envisioned but not clearly described in the ADA law and the Equal Employment Opportunity Commission (EEOC) regulations.4 These issues will emerge again as new technologies uncover risks and propensities using genomic, toxicogenomic, and protenomic profiles and new techniques of medical care.5
18 Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 122 S. Ct. 2045, 153 L. Ed. 2d 82, 67 Cal. Comp. Cas. (MB) 781, 13 A.D. Cas. (BNA) 97 (2002).
1Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 122 S. Ct. 2045, 153 L. Ed. 2d 82, 67 Cal. Comp. Cas. (MB) 781, 13 A.D. Cas. (BNA) 97 (2002).
2ADA’s Congressional mandate to overcome obstacles to employment means it is illegal to exclude, terminate or fail to promote any worker simply because of their disability, regardless of the cause of their disability. Under ADA, it is no longer legal to ask about, or refuse to hire an applicant because of a previous injury regardless of the cause.
3See American College of Occupational and Environmental Medicine, ACOEM Code of Ethical Conduct, available at http://www.acoem.org/code/default.asp.
4See International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 55 Fair Empl. Prac. Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H. Dec. (CCH) P 29256 (1991); §1:114 (discussing UAW v. Johnson Controls, Inc.).
5See Ilise L. Feitshans, MCLE for the Moseley Institute, Genetic Destiny: Today’s Laws, Tomorrow’s Technology’s (1999); Spider Silk Jeans or Spider Silk Genes: Genetic Testing in the Workplace, N.Y.L. Sch. J. Hum. Rts. (2002); Review of From Chance to Choice: Genetics and
1:76. Ongoing issues of admiralty jurisdiction
Following the path set forth by Mallard Bay Drilling Inc v. Herman,1 the 2002 case of Secretary of Labor v. Noble Drilling Services, Inc.,2 examined the question of whether potentially concurrent U.S. Coast Guard jurisdiction of a so-called uninspected vessel is subject to the OSH Act or is preempted under the OSH Act Section 4(b)(4). The vessel was a drilling rig. Following statutory definitions, the Court determined in the prior case that the drilling rig was not an “inspected vessel” over which the Coast Guard would assert a “comprehensive regulatory authority.” In Chao v. Mallard Bay Drilling, Inc.3 the U.S. Supreme Court held that, (1) general marine safety regulations issued by the U.S. Coast Guard did not preempt OSHA’s jurisdiction over working conditions on “uninspected vessels” and that (2) an oil and gas exploration barge which was anchored in state territorial waters is a “workplace” for purposes of OSH Act jurisdiction. In Mallard Bay, at the lower court levels, the Coast Guard’s authority to regulate working conditions was statutorally limited to the areas related to fire extinguishers, life preservers, flame arresters or backfire traps, means for ventilation, and emergency locating equipment.4 Reversing the Court of Appeals, the U.S. Supreme Court found that “mere possession by another federal agency of unexercised authority to regulate working conditions is insufficient to displace jurisdiction” . The court therefore held that OSH Act was not preempted.
In Noble Drilling, the Court of Appeals found that the same conclusions applied to the employer. Since the drilling rig was an “uninspected vessel” pursuant to 46 U.S.C.A. §§2101 and 3301, the Coast Guard did not assert comprehensive jurisdiction over it. The court further parsed both statutes by noting that the working conditions at issue in Noble Drilling involved personnel platforms, guardrails, the grounding of an electric fan, and recordkeeping by a competent person. The conditions could not fit within the categories that the Coast Guard regulates on uninspected vessels. Following the decision in Mallard Bay, the Coast Guard had not “exercised” its authority to regulate the vessel. Therefore, Section 4(b)(1) did not preclude OSHA’s jurisdiction.
Justice, New Eng. J. Med. (2000). Genetic preconditions and other high-tech biological profiles cluster in families and thus are immutably linked to characteristics such as sex, race ethnicity or national origin, the use of which as criteria in employment might resemble prohibited demarcations for polices under the law of discrimination.
1Mallard Bay Drilling, Inc. v. Herman, 212 F.3d 898, 18 O.S.H. Cas. (BNA) 2161, 2000 O.S.H. Dec. (CCH) P 32120, 2000 A.M.C. 1942 (5th Cir. 2000), judgment rev’d, 534 U.S. 235, 122 S. Ct. 738, 151 L. Ed. 2d 659, 19 O.S.H. Cas. (BNA) 1721, 2001 O.S.H. Dec. (CCH) P 32515, 2002 A.M.C. 305 (2002).
2Secretary of Labor, Complainant v. Noble Drilling Services, Inc., and Noble Drilling (U.S.) Inc., Respondent, 19 O.S.H. Cas. (BNA) 1869, 2002 O.S.H. Dec. (CCH) P 32553, 2002 WL 538935 (O.S.H.R.C.A.L.J. 2002), oshrc.gov/decisions/html_2002/00- 0462.html.
3Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235, 122 S. Ct. 738, 151 L. Ed. 2d 659, 19 O.S.H. Cas. (BNA) 1721, 2001 O.S.H. Dec. (CCH) P 32515, 2002 A.M.C. 305 (2002).
4Mallard Bay Drilling, Inc. v. Herman, 212 F.3d 898, 18 O.S.H. Cas. (BNA) 2161, 2000 O.S.H. Dec. (CCH) P 32120, 2000 A.M.C. 1942 (5th Cir. 2000), judgment rev’d, 534 U.S. 235, 122 S. Ct. 738, 151 L. Ed. 2d 659, 19 O.S.H. Cas. (BNA) 1721, 2001 O.S.H. Dec. (CCH) P 32515, 2002 A.M.C. 305 (2002) (discussing 46 U.S.C.A. §4102).
The employer, in Noble Drilling was engaged in exploring for and developing oil and gas, primarily in the Gulf of Mexico. When OSHA conducted a comprehensive inspection5 of the Friede Goldman Halter Marine shipyard in Pascagoula, Mississippi, including certain vessels undergoing substantial work at the shipyard. 6 As a result of OSHA’s inspection, it issued two
5Secretary of Labor, Complainant v. Noble Drilling Services, Inc., and Noble Drilling (U.S.) Inc., Respondent, 19 O.S.H. Cas. (BNA) 1869, 2002 O.S.H. Dec. (CCH) P 32553, 2002 WL 538935 (O.S.H.R.C.A.L.J. 2002), oshrc.gov/decisions/html_2002/00- 0462.html.
The inspection found: Citation No. 1 is classified as serious. Item 1 alleges a violation of §5(a)(1) of the Occupational Safety and Health Act (Act) in that the personnel baskets used to transport workers were defective in three ways: they did not have a grab rail (subparagraph (i)); they did not have their weight or maximum load capacity posted (subparagraph (ii)); and they were used to transport materials or tools when not hoisting personnel (subparagraph (iii)). Item 2 alleges a violation of §1915.73(d) for failing to have a guardrail on a dock edge between storage trailers. Item 3 alleges a violation of §1915.132(a) for failing to ground a large portable fan. Final Order–Decision and Order (Apr. 3, 2002).
6 Secretary of Labor, Complainant v. Noble Drilling Services, Inc., and Noble Drilling (U.S.) Inc., Respondent, 19 O.S.H. Cas. (BNA) 1869, 2002 O.S.H. Dec. (CCH) P 32553, 2002 WL 538935 (O.S.H.R.C.A.L.J. 2002), available at http://www.oshrc.gov/decisions/html_2002/00- 0462.html. Noble Drilling Corporation, which has three employees, owns Noble Drilling Services, Inc. (NDS) and Noble Drilling (US), Inc. (NUS). Each of the three corporations has a main office in Sugar Land, Texas. NDS is the administrative arm of Noble Drilling Corporation and has approximately 120 employees. NUS owned equipment and vessels and performs drilling activities in the Gulf of Mexico for Noble Drilling Corporation. At the time of the hearing, NUS operated 19 rigs and had over 1000 employees, mostly working in the Gulf of Mexico. NUS owned nine or 10 of the rigs. Various NDC subsidiaries owned and/or operated a total of 49 mobile offshore drilling units. Beginning in December 1996, to increase marketability, NDS/NUS began converting six of its older “submersible;” mobile offshore drilling units (MODUs) into ““semi-submersible;” MODUs. A MODU submersible is a drilling rig ballasted down at the drilling location where the hull contacts the sea floor. From there, the submersible can drill down to a maximum depth of 100 feet. The more versatile semi-submersible MODU is partially ballasted to a pre-determined floating point with anchors, which run out for miles. The drilling structure is centered in a moon pool in the center of the rig from where it can drill down to a depth of 6,600 feet. Converting submersibles to semi-submersibles is a substantial task, taking from 15 to 16 months and involving extensive and significant structural modifications to the vessel performed at the Friede Goldman Halter Marine Shipyards (FGH) located on the banks of the Pascagoula River waterway in Pascagoula, Mississippi. The last of the six submersible MODUs to be converted was the “Max Smith.” Originally built in 1980, the “Max Smith” was never self-propelled. It was towed into the FGH shipyard by several towing vessels and removed from service (Tr. 44). After the hull was stripped of its existing drilling equipment and the living accommodations were removed, the “Max Smith” was put on dry dock. The conversion added a new lower hull, three pontoons, outboard stability columns, motors, pumps, living accommodations, drilling structures, and other parts constructed at the FGH shipyard. and added almost 6,000 gross tons of weight. Once tied to the dock, smaller pieces of the hull structure were added (such as the T-tank). New machinery was continually being installed and tested. By the time of OSHA’s inspection the vessel was moored to the dock, and
citations on February 9, 2000.7 As the Fifth Circuit ruling suggested in Mallard Bay Drilling,8 these questions of preemption are almost settled law even though their application is intensely fact specific. Pursuant to §4(b)(1) of the OSH Act (29 U.S.C.A. 653(b)(1)) which provides in relevant part:
Nothing in this [Act] shall apply to working conditions of employees with respect to which other Federal Agencies *** exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health.
The employer parties disputed whether a vessel undergoing conversion at a shipyard presented distinguishable facts from Mallard Bay Drilling.11 The Fifth Circuit determined that the Coast Guard had exclusive authority over the working conditions of the seamen, even when on an uninspected vessel. On January 9, 2002, the U.S. Supreme Court reversed, concluding that OSHA had jurisdiction over working conditions of the uninspected vessel.
The court in Noble Drilling, quoting the U.S. Supreme Court, reasoned:
“Because the Guard has neither affirmatively regulated the working conditions at issue in this case, nor asserted comprehensive regulatory jurisdiction over working conditions on uninspected vessels, the Guard has not ‘exercised’ its authority under §4(b)(1).” … Additionally, as did the employer in Mallard Bay, NDS/NUS contends that OSHA is without jurisdiction over the Max Smith because it is not a “workplace” as defined by §4(a) of the Act, which provides: This Act shall apply with respect to employment performed in a workplace in a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Trust Territory of the Pacific Islands, Wake Island, the Outer Continental Shelf Lands defined in the Outer Continental Shelf Lands Act, Johnston Island, and the Canal Zone.12
The U.S. Supreme Court has held however, that the OSH Act does not apply to vessels on which seamen work in the territorial waters of the United States. The Supreme Court rejected the limits on OSHA jurisdiction, holding: “We think it equally clear that Rig 52 was a ‘workplace’ as that term is defined in §4(a) of the Act. The vessel was located within the geographic area described in the definition, ‘a State,’ 29 U.S.C.A. §653(a), namely, Louisiana. Nothing in the text of §4(a) attaches any significance to the fact that the barge was anchored in navigable waters.”23 Noble Drilling therefore found, “[t]he same conclusion is even more compelling, here, because Nobel’s Modu was moored to the dock … not engaged in navigation.” 13
the conversion to a semi-submersible was 85% completed.
7Secretary of Labor, Complainant v. Noble Drilling Services, Inc., and Noble Drilling (U.S.) Inc., Respondent, 19 O.S.H. Cas. (BNA) 1869, 2002 O.S.H. Dec. (CCH) P 32553, 2002 WL 538935 (O.S.H.R.C.A.L.J. 2002.oshrc.gov/decisions/html_2002/00- 0462.html.
8Mallard Bay Drilling, Inc. v. Herman, 212 F.3d 898, 18 O.S.H. Cas. (BNA) 2161, 2000 O.S.H. Dec. (CCH) P 32120, 2000 A.M.C. 1942 (5th Cir. 2000), judgment rev’d, 534 U.S. 235, 122 S. Ct. 738, 151 L. Ed. 2d 659, 19 O.S.H. Cas. (BNA) 1721, 2001 O.S.H. Dec. (CCH) P 32515, 2002 A.M.C. 305 (2002).
11Mallard Bay Drilling, Inc. v. Herman, 212 F.3d 898, 900, 18 O.S.H. Cas. (BNA) 2161, 2000 O.S.H. Dec. (CCH) P 32120, 2000 A.M.C. 1942 (5th Cir. 2000), judgment rev’d, 534 U.S. 235, 122 S. Ct. 738, 151 L. Ed. 2d 659, 19 O.S.H. Cas. (BNA) 1721, 2001 O.S.H. Dec. (CCH) P 32515, 2002 A.M.C. 305 (2002).
12Secretary of Labor, Complainant v. Noble Drilling Services, Inc., and Noble Drilling (U.S.) Inc., Respondent, 19 O.S.H. Cas. (BNA) 1869, 2002 O.S.H. Dec. (CCH) P 32553, 2002 WL 538935 (O.S.H.R.C.A.L.J. 2002.oshrc.gov/decisions/html_2002/00- 0462.html.
23 70 U.S.L.W. 4068
13Secretary of Labor, Complainant v. Noble Drilling Services, Inc., and Noble Drilling (U.S.)
1:77. Overlap with homeland security concerns
Events at the World Trade Center and U.S. Pentagon in September, 2001, gave the United States a new sense of mission regarding its need for internal security against threats to public safety and health. Aviation safety, fire, evacuation, and internal auditing procedures are being implemented to determine whether suspicious persons (however defined) have been hired by key industrial corporations. The President of the United States has created a cabinet-level post to address issues of Homeland Security. It is clear nonetheless that an effective in-house corporate compliance program, working with the government can accomplish a lot to reassure the public in times of crisis and thereby ensure the working population’s mental health.
For example, New York swiftly established a comprehensive support network for mental health. This unprecedented state program has as its slogan, “New York Needs You Strong.” The program represents the bringing together of state, private and volunteer organizations in the psychiatric, mental health, and social work professions and other service providers. The campaign, spearheaded by the Department of Health, offers brochures that discuss anxiety, stress, and its effects upon individual performance and well-being, fear about the future, symptoms of depression, post-traumatic stress and related disorders in a manner rarely discussed in public before. The campaign offers a network of toll free hotlines for people who fear that they or their loved ones may suffer post-9-11 mental health problems, and offers services for people who cannot afford them. Given the societal history of ambivalence about providing mental health patients the same anti-discrimination protections, this program represents a breakthrough in public health strategies. Special programs also exist to assist emergency personnel and their families to address fear of occupational death, job stress, and related anxiety. The program demonstrates that there is a vital role in partnership with such networks to be played by in-house corporate compliance programs that address occupational safety and health, performance and well-being at work, regardless of the source of those concerns.
1:78. OSHA has discretionary authority to “promulgate” standards: I.U.A.W. v. Chao
When a labor union petitioned Occupational Safety and Health Administration (OSHA) to take immediate action to protect workers from health effects of occupational exposure to machining fluids, the courts found that OSHA may commence an inquiry into rulemaking without becoming compelled to actually promulagate a rule. OSHA’s discretionary authority was unchanged, despite a variety of activities by committees and the diligent lobbying of the labor union, whose staff had urged OSHA to promulgate a rule that would establish a standard for occupational exposure to machining, or metalworking, fluids (MWFs). More than a decade later, the Secretary of Labor denied the petition. As a result, the labor union petitioned for review to compel the agency to take action on the decade-old regulatory initiative.1 In International Union v. Chao, the Court of Appeals denied the petition and held that: (1) OSHA did not have duty to regulate MWFs, and (2) the Secretary’s denial of request for rulemaking proceedings about MWFs was neither arbitrary nor capricious.2
Inc., Respondent, 19 O.S.H. Cas. (BNA) 1869, 2002 O.S.H. Dec. (CCH) P 32553, 2002 WL 538935 (O.S.H.R.C.A.L.J. 2002),.oshrc.gov/decisions/html_2002/00- 0462.html.
1International Union v. Chao, 361 F.3d 249, 20 O.S.H. Cas. (BNA) 1609, 2002 O.S.H. Dec. (CCH) P 32705 (3d Cir. 2004).
2For the court’s discussion on whether and when there is a duty to act under the OSH Act, the issue of whether the Secretary of Labor was required to promulgate a rule regarding the regulation of MWFs, the application of the Administrative Procedure Act, the OSHA standard
1:79. Gender-neutral, nondiscriminatory compliance requirement: UAW v. Johnson Controls, Inc
On March 20, 1991, the U.S. Supreme Court’s decision in UAW v. Johnson Controls, Inc.1 reshaped our nation’s occupational safety and health policy insofar as those policies impact the working conditions experienced by women. The Supreme Court held that employers cannot exclude women from high-risk employment in lead battery manufacturing, despite the risk to potential or unborn offspring from reproductive health hazards in the workplace without violating Title VII of the Civil Rights Act of 1964.2
Under previous statutory analysis, compliance under the Occupational Safety and Health Act (OSH Act) was interpreted as allowing employers to hire only the healthiest, low-risk members of the workforce and to exclude any group of high-risk workers, as long as the general standards for safety and health were not violated. In the past, employers could use medical screening and other devices to preselect or refrain from selecting so-called “susceptible” populations for employment, so long as the employer fulfilled the requirements of a general standard, and no harms resulted from the employer’s activities. The meaning of OSHA compliance has recently been redefined, however, to include the employer’s obligation to provide safe and healthful working conditions for the most vulnerable segments of the working population and to hire those members of the population, rather than “protecting” them through exclusion, following the U.S. Supreme Court decision in Johnson Controls.
The Court’s clear mandate to employ women in toxic and hazardous environments, regardless of their potentially high-risk individual characteristics, heralds a new era in OSHA compliance–an era that implicitly requires clean and safe workplaces for all workers, in order to achieve equal employment opportunity for members of high-risk populations. The Court found that “Johnson Controls’ policy is not neutral because it does not apply to the reproductive capacity of the company’s male employees in the same way as it applies to that of the females. Moreover, the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with discriminatory effect.”3
Thus, the U.S. Supreme Court’s decision changed occupational safety and health policy by adding the express requirement that OSHA compliance programs be consistent with gender neutral, nondiscriminatory practices required under Title VII. According to one commentator, “Traditional title VII analysis forces an employer seeking to protect fetal health to develop a neutral policy in order to avoid title VII liability. The employer’s solution must be general rather
regulating workplace exposure of harmful chemicals, see the court’s analysis and decision. International Union v. Chao, 361 F.3d 249, 20 O.S.H. Cas. (BNA) 1609, 2002 O.S.H. Dec. (CCH) P 32705 (3d Cir. 2004).
1International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 55 Fair Empl. Prac. Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H. Dec. (CCH) P 29256 (1991).
242 U.S.C.A. §§2000e et seq.
3International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 55 Fair Empl. Prac. Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H. Dec. (CCH) P 29256 (1991).
than gender specific. The focus is thereby shifted to the harm of offspring as affected by the exposure of both men and women.” 4 Unfortunately, Title VII does not adequately address the questions raised concerning actual preventive measures in the workplace. As this commentator has suggested,
A number of alternative policies may be available to protect the health of workers’ offspring which have a less discriminatory effect than exclusionary policies. The first and most obvious alternative is to reduce exposures to … non-hazardous levels. If an OSHA standard or the general duty clause of the OSH Act independently impose such a requirement, failure to pursue that alternative should, without any further showing, place the employer in violation of title VII.5
The meaning of OSH Act compliance as redefined by Johnson Controls encompasses employers’ obligations to provide safe and healthful working conditions for members of the most vulnerable working populations, but ensuring that OSH Act compliance is consistent with the Court’s opinion may require rethinking many aspects of OSH Act compliance programs to avoid creating policies that unintentionally result in a disparate treatment of female workers.
The implications of Johnson Controls transcend questions of fetal health presented in that case. Appreciating the long-term legal implications of this decision requires detailed analysis of several complex aspects of compliance with OSHA regulations. For example, the requirement that employers fashion nondiscriminatory, gender neutral mechanisms for OSH Act compliance will have implications for the meaning of protections against health hazards that require providing safety equipment. Enlightened employers and industrial hygienists have long noted the possible leaks and preventable exposures to recognized hazards that occur when “standard” safety clothing designed for men does not fit women properly. OSHA compliance programs had previously accepted the premise offered by protective clothing manufacturers, who had claimed there is no market for the “special sizes” required for women. Now, after Johnson Controls, if men receive protections from harms but women do not (under the same working conditions), the enterprise could be liable for this discriminatory impact. Thus, failure to provide properly fitting safety equipment, or in the alternative, failure to make the workplace so clean that such equipment is not needed, may now constitute a “disparate impact” violation of Title VII, regardless of the employer’s underlying benevolent intent. Disparate impact analysis may also have implications for compliance programs concerning injuries that are disproportionately experienced by women, such as repetitive carpal tunnel syndrome. To provide meaningful employment opportunity, the risk must equally be low for all workers, and equally free from recognized hazards. The existence of a disproportionate number of injuries from the same cause among women may provide a health-based signal that warns of discriminatory practices at work.
Johnson Controls also has profound implications for occupational safety and health debates concerning regulatory preference for “performance” standards6 rather than “specification” standards.7 Employer-fashioned approaches, the so-called “performance”
4Williams, Firing the Woman To Protect the Fetus: The Reconciliation of Fetal Protection with Employment Opportunity Goals Under Title VII, 69 Geo L.J. at 698-699 (Feb. 1981).
5Williams at 698-699.
6A performance standard is result-based; means for achieving the result are left to the regulated party. Performance standards are expressed in terms of maximum quantities of hazardous chemicals permitted in the work environment.
7 Jack Levy, Ilise Feitshans and John Kasdan Brief Amicus Curiae, July 1990, In the Supreme Court of the United States IUAW v. JOHNSON CONTROLS on Brief for Behalf of the Industrial Hygiene Law
standards, grant employers the discretion to decide which mechanisms for the OSH Act compliance will be implemented, so long as OSHA’s regulatory goals are achieved. By contrast, specification standards state the precise methods to be used for implementation of standards, regardless whether modification of those methods should be tailored to meet the unique circumstances of a particular workplace. It can be argued that fetal protection policies were one example of performance standards gone awry.
The Court did not address the inherent conflict between present public health methods and notions of discrimination. Occupational health issues, unlike policies preventing discrimination, require a careful weighing of epidemiological evidence on a substance-by-substance and worksite-by-worksite basis, whenever hazards have different effects on subpopulations of employees in the same workplace. This is an issue that the Court saved for another day, possibly to be faced in cases regarding genetic screening and preplacement screening of applicants. The decision may nonetheless foreshadow Title VII limitations on other policies that target other “susceptible” populations by race, sex, age, or ethnicity, thereby challenging the appropriateness of such practices that were previously considered acceptable in limited circumstances. Johnson Controls as written by the U.S. Supreme Court presents but does not answer the hard question: what to do when confronted with reproductive health hazards in the workplace?
Some of these hazards affect both men and women, but some have a differential impact on women only. The Court suggests that the mandate to allow women into high-risk employment also means there is a mandate to fashion strong gender neutral industrial hygiene programs that will protect high-risk populations. It remains unclear, however, what this means in the practical context, i.e., the day-to-day exposure to teratogens and embryotoxins, where acute exposure can cause harm. What happens when a pregnant lab technician wants special exposure monitoring? Is an employer’s failure to provide such protection the basis for a disparate impact claim? Future courts and regulatory agencies will determine which standard for review should be applied.
The US Supreme Court also did not explore the occupational health parameters of the Johnson Controls decision or provide clear guidance to determine how employers can effectively implement occupational safety and health protections that will meaningfully ensure the health of high-risk populations against reproductive hazards. Nor did the opinion offer a solution for the very important issues that will arise when developing gender-neutral policies that will provide necessary protections in the rare cases where preventive strategies must target special needs of women workers. How to implement preventive strategies in a gender-neutral manner is but one of the major questions that permeates each phase of OSHA compliance since Johnson Controls. Recognizing that there are some highly hazardous exposures where adequate protections against harm are not technologically feasible, some people had hoped the Supreme Court would provide guidance regarding the appropriate approach to risk assessment in those rare but dangerous situations. Therefore, one of the many logical consequences of this decision should be further research into the reproductive hazards experienced by both male and female workers. In addition, companies will lend greater attention to the health concerns of pregnant workers and
Project, Columbia Universaity School of Law, citing Corn et al.
workers who are contemplating becoming parents.8 This aspect of occupational safety and health preventive strategies and research has been addressed in the scientific literature abroad in the past. The 1975 International Labour Office Plan of Action approved a Recommendation that addressed these particular concerns, but was never incorporated into USA legal requirements. 9
Thus, the Supreme Court’s decision in Johnson Controls may have brought not only the end of so-called fetal protection, but also the beginning of a fresh approach to occupational health compliance policies. Since the Court remained silent regarding the scope and content of industrial hygiene requirements, it left the primacy of OSHA-approved methods to achieve equally safe and healthful results intact. Necessary nondiscriminatory changes to protect high-risk populations and thereby provide them with equal employment opportunity in clean and healthful work environments will require greater enforcement of the OSH Act protections. This will also require reexamination of existing OSHA compliance programs to ensure that the necessary protections to provide safe and healthful employment do not have different implications for men and women at the same workplace. Industrial hygienists, working within the context of OSHA compliance teams will ultimately grapple with OSHA regulations to resolve these sophisticated and unanswered questions.
1:80. Seventh Amendment right to jury trial: Atlas Roofing Co., Inc. v. OSHRC
Atlas Roofing Co., Inc. v. OSHRC1 was the first OSHA case to be brought before the U.S. Supreme Court. In that case, an employer claimed that the OSHRC proceedings and the subsequent imposition of fines for safety violations within the employer’s control were an unconstitutional violation of the right to a jury trial under the Seventh Amendment. The Court disagreed, holding that the Seventh Amendment does not prevent Congress from assigning the task of determining whether OSHA violations have occurred to an administrative agency. The Court found it is permissible for Congress to create public rights that are adjudicated by administrative agencies or administrative law judges, without violating the Seventh Amendment. It also outlined with approval the purposes and actions in OSHA’s regulatory scheme. The Court offered detailed analysis of the OSH Act’s legislative history:
8Chavkin, Walking a Tightrope: Pregnancy, Parenting and Work, Double Exposure (1984).
See also Corn, Exposure Assessment Challenges Presented by Investigations of Reproductive Effects in the Semiconductor Industry, in Rappaport & Smith, Exposure Assessment for Epidemiology and Hazard Control at 199-205 (1991). According to Corn, three major types of adverse effects that may be endpoints for evaluation of reproductive hazards after occupational exposure: (1) Subfertility/Infertility; (2) Pregnancy loss; and (3) Disorders at birth or in infancy, i.e., effects on breast-feeding, early childhood development or learning disabilities may be included as potential outcomes for study.
9International Labour Conference, 71st Sess, 1985, Report VII: Equal Opportunities and Equal Treatment for Men and Women in Employment, International Labour Office, Geneva, Switzerland at 104-105 (1985); citing 1975 ILO Plan of Action.
1Atlas Roofing Co., Inc. v. Occupational Safety and Health Review Com’n, 430 U.S. 442, 97 S. Ct. 1261, 51 L. Ed. 2d 464, 5 O.S.H. Cas. (BNA) 1105, 1977-1978 O.S.H. Dec. (CCH) P 21615 (1977).
1:81. Warrantless inspections: Marshall v. Barlow’s Inc
Marshall v. Barlow’s Inc.1 concerned OSHA’s warrantless inspection of a workplace. The owner at Barlow’s Inc. refused entry to OSHA compliance officers when they appeared at his workplace for a regular, unscheduled inspection, which was not in response to a complaint. The Court agreed with Barlow and cited numerous instances of unwarranted searches throughout the Colonial Era, indicating the strong heritage for protection against the behavior that had been exhibited by OSHA’s agents. Citing long-standing precedents, the Court held that, “… a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.”
The Court rejected OSHA’s arguments that the Fourth Amendment does not apply to regulatory inspections. OSHA noted that the OSH Act Section 8 empowers the Secretary of Labor to search the work area of any facility within the OSH Act jurisdiction, and that no search warrant is expressly required under the plain meaning of the OSH Act. In response to the Secretary’s claim that a history of warrantless searches in “pervasively regulated” industries gave rise to the right of entry under the OSH Act, the Court noted that such situations are the exception. The Court stated: “[T]he degree of federal involvement in employee working circumstances has never been of the order of specificity and pervasiveness that OSHA mandates.” In response to the Secretary’s desire to “preserve the advantages of surprise” the Court was “unconvinced” that warrants would prevent necessary inspections to enforce the law. The Court now requires OSHA to obtain search warrants before inspections unless the employer grants entry. As previously noted, the determination whether to require OSHA to provide a warrant is a tactical issue that should be weighed in light of the facts and the enterprise’s circumstances.
1:82. Right to refuse hazardous employment: Whirlpool v. Marshall
The OSH Act prohibits any employer from discharging or retaliating against any employee who exercises “any right afforded by” the OSH Act.1 This protection has been amplified by OSHA regulations, that include among employees’ rights, “the right to choose not to perform his [sic] assigned tasks because of a reasonable apprehension of death or serious injury coupled with a reasonable belief that no less drastic alternative is available.”2 In Whirlpool v. Marshall, two employees refused a routine but dangerous assignment after another employee, working at the same assignment, had been killed. An OSHA complaint was under investigation and the complaint later resulted in an OSHA citation. The central issue concerned whether an OSHA regulation authorizing self-help in certain circumstances was valid. The Court held that OSHA was authorized to create an interpretive administrative rule, based on its statutory authority to prevent death and serious injury in the workplace. The Court upheld the employees’ refusal, pursuant to the OSHA regulations involved.
In Whirlpool, the Court reaffirmed the primacy of OSHA’s right to protect employees using inspections, enforcement powers, and OSHA’s right to seek injunctive relief in cases involving serious hazards or imminent dangers stating: “[T]he Secretary can petition a federal
1Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305, 6 O.S.H. Cas. (BNA) 1571, 1978 O.S.H. Dec. (CCH) P 22735, 8 Envtl. L. Rep. 20434 (1978).
1 Whirlpool Corp. v. Marshall, 445 U.S. 1, 100 S. Ct. 883, 63 L. Ed. 2d 154, 8 O.S.H. Cas. (BNA) 1001, 1980 O.S.H. Dec. (CCH) P 24249 (1980), citing OSH Act §11(c).
2Whirlpool Corp. v. Marshall, 445 U.S. 1, 100 S. Ct. 883, 63 L. Ed. 2d 154, 8 O.S.H. Cas. (BNA) 1001, 1980 O.S.H. Dec. (CCH) P 24249 (1980).
court to restrain the conditions or practices giving rise to the imminent danger. By means of a temporary restraining order or preliminary injunction, the court may then require the employer to avoid, correct, or remove the danger or to prohibit employees from working in the area. 29 U.S.C. §662(a).”3
The case also clearly reaffirmed each employee’s right to use the OSH Act to attain improved working conditions. Those rights include employee participation in any investigation of accidents and imminent dangers, as well as limited self-help to prevent imminent danger. In addition, procedures set forth in the OSH Act Section 13 to counteract imminent dangers allow OSHA to seek an injunction to close unsafe plants. Although OSHA has not referred many cases to the United States Department of Justice for prosecution,4 the OSH Act Section 17 allows for civil fines up to $10,000 for willful or repeated violations, and penalties up to $20,000 or imprisonment for cases of willful harm leading to death. The Court stated:
an affected employee is given the right to bring an action to compel the Secretary to seek injunctive relief if he [sic] believes the Secretary has wrongfully declined to do so.5
This was justified, in the Court’s opinion, by the OSH Act’s legislative purpose and its remedial goal which:
does not wait for an employee to die or become injured … [but] authorizes … the issuance of citations in the hope that these will act to prevent deaths or injuries from ever occurring.6
Thus, Whirlpool’s view of the right to refuse hazardous work in cases of imminent danger effectively allows employees to refuse dangerous assignments without facing the consequences of reprimand or reprisal. The case has not been limited by subsequent decisions, although it has been interpreted as requiring employees to have excellent support for their reasonable belief of imminent danger before refusing dangerous assignments. Whirlpool should be noted by in-house compliance teams as they evaluate the occupational safety and health hazards associated with
3Whirlpool Corp. v. Marshall, 445 U.S. 1, 100 S. Ct. 883, 63 L. Ed. 2d 154, 8 O.S.H. Cas. (BNA) 1001, 1980 O.S.H. Dec. (CCH) P 24249 (1980).
4The extent to which states may criminally prosecute employers or their agents at executive levels of industry when OSHA has failed to do so is an open question, but has been the subject of increasing litigation in Illinois, New York and Michigan. See OSH Act §17, 29 U.S.C.A. §666; People v. Chicago Magnet Wire Corp., 157 Ill. App. 3d 797, 110 Ill. Dec. 142, 510 N.E.2d 1173, 13 O.S.H. Cas. (BNA) 1337, 1987 O.S.H. Dec. (CCH) P 28004 (1st Dist. 1987), judgment rev’d, 126 Ill. 2d 356, 128 Ill. Dec. 517, 534 N.E.2d 962, 13 O.S.H. Cas. (BNA) 2001, 1989 O.S.H. Dec. (CCH) P 28421, 21 Envtl. L. Rep. 20429 (1989). See also People v. Hegedus, 169 Mich. App. 62, 425 N.W.2d 729, 13 O.S.H. Cas. (BNA) 1795, 1988 O.S.H. Dec. (CCH) P 28278 (1988), decision rev’d, 432 Mich. 598, 443 N.W.2d 127, 14 O.S.H. Cas. (BNA) 1049, 1989 O.S.H. Dec. (CCH) P 28640, 21 Envtl. L. Rep. 20623 (1989) (defendant supervisor who ordered decedent employee to use vehicle with faulty brakes charged with involuntary manslaughter).
5Whirlpool Corp. v. Marshall, 445 U.S. 1, 7, 100 S. Ct. 883, 63 L. Ed. 2d 154, 8 O.S.H. Cas. (BNA) 1001, 1980 O.S.H. Dec. (CCH) P 24249 (1980), citing 29 U.S.C.A. §662(d).
6Whirlpool Corp. v. Marshall, 445 U.S. 1, 10, 100 S. Ct. 883, 63 L. Ed. 2d 154, 8 O.S.H. Cas. (BNA) 1001, 1980 O.S.H. Dec. (CCH) P 24249 (1980).
different assignments because of its implication for the right to refuse assignments in places where the enterprise has an imminent danger on its premises.
1:83. Law of significant risk
The carcinogenic and mutagenic characteristics of benzene1 have been the subject of extensive scientific research and regulation.2 In 1980, the U.S. Supreme Court reviewed the validity of OSHA’s decision to lower the PEL to 1 ppm (from the previous standard of 10 ppm)3 and vacated a portion of the revised standard governing the 1 ppm PEL4 ambient work environment,5 in IUD v. API (referred to as the Benzene case).6 The Benzene decision had
1Preventing Injury and Illness in the Workplace, Office of Technology Assessment (1985).
2The first evidence of risk from acute or chronic effects for exposure to benzene was recognized in 1900. In 1971, OSHA adopted the voluntary industrial limit of 10 ppm, set by the American National Standards Institute (ANSI) as part of its acceptance of “national consensus standards.” In that same year, the International Labor Office (ILO), a specialized agency of the United Nations, adopted ILO Convention number 136, ““Convention Concerning Protection Against Hazards Arising From Benzene,”” which incorporated the ACGIH’s standard and set an international ceiling of 25 ppm for occupational exposure.
The National Institute for Occupational Safety and Health (NIOSH) issued a criteria document concerning the possible link between leukemia and benzene in 1974 (updated in 1976). A request for an emergency temporary standard (ETS) to regulate occupational exposure to benzene was filed in 1976, followed by further information from the National Academy of Sciences (NAS) which concluded that “benzene must be considered a suspect leukemogen.” These conclusions combined with the NIOSH recommendation prompted OSHA to issue voluntary guidelines that limited the TWA to 1 ppm in 1977. OSHA then issued an emergency temporary standard (ETS) (which was defeated in the courts) followed by a proposed permanent standard.
3The second revised Permissible Exposure Limit (PEL) for occupational exposure to benzene is 1 ppm, (action level of 0.5 ppm time weighted average (TWA)) with a short term exposure level (STEL) of 5 ppm averaged over 15 minutes to a confidence interval of 95% plus or minus 25%. Under the present rule, employers are required to establish;“regulated areas;” if airborne concentration can reasonably be expected to exceed permitted exposures. In addition, the standard requires employee notification of monitoring results; establishment and implementation of a written program to reduce employee exposure with engineering and work practice controls; respiratory protection, protective clothing, medical surveillance, recordkeeping; and regularly scheduled medical examinations (including urine sample). OSHA’s rationale for changing the PEL in 1987, described in the Preamble to the (second) final rule for Benzene, 52 Fed. Reg. 34,460 to 34,581; the revised standard is published in 29 C.F.R. §1910.1028.
429 C.F.R. §1910.1028(A)(3)(ii).
5OSHA’s standard for occupational exposure to benzene (29 C.F.R. §1910.1028). Preamble to the (first) final rule for Benzene, 43 Fed. Reg. 5919. The old standard required testing;“at least monthly if exposure was in excess of the PEL”” and testing after emergencies;“at the end of the shift”” OSH Act §4(i)(6) (1978) instead of within 72 hours, OSH Act §4(i) (1987) under the revised standard.
6Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 100 S. Ct.
important ramifications, despite the Court’s strict scrutiny and rejection of OSHA’s decisions. The findings upheld the notion that benzene is an appropriate substance for regulation, and set the tone for acceptance of similar standards throughout the United States and abroad.7 The impact of the Benzene case upon later OSHA standards is also evident in OSHA’s clearly stated policy rationale in the preambles to new standards and in the extremely technical provisions of the later revisions8 which repeatedly express OSHA’s concern for establishing “significant risk.”
Although the US Supreme Court imposed the requirement that OSHA make a threshold finding of “significant risk,” the finding was not intended to be a “mathematical straightjacket.”9 The Benzene case remains important because the case’s ability to explore issues hovering over the edge of scientific certainty is instructive for future standards that shape the parameters of OSHA compliance. The US Supreme Court found that OSHA’s presumption of “no safe level” was inadequate to support modification of the preexisting standard. OSHA had applied its overarching “Cancer Policy”10 to justify its view that exposures must be reduced to the “lowest feasible level.”11 That policy created the presumption under law that there is “no safe level” of
2844, 65 L. Ed. 2d 1010, 8 O.S.H. Cas. (BNA) 1586, 1980 O.S.H. Dec. (CCH) P 24570, 10 Envtl. L. Rep. 20489 (1980) (commonly referred to as the Benzene case). See: Ilise Feitshans, Law and Regulation of Benzene, 82 Environmental Health Perspectives 299307 (1989).
7For example, benzene is subject to regulation in Canada (Revised Statutes of Ontario, 1980 Chapter 321), and under laws concerning the regulation of a;“designated substance” Revised statutes of Ontario provide an objective;” of a PEL of 1 ppm, with a TWA of 5 ppm and a ceiling of 15 ppm. The regulations also require participation by joint safety committees, (comprised of management, labor and government). Benzene is a“designated substance”under OSHA’s rules. Workers who are occupationally exposed to such substances must be given special protections.
8These newer technical provisions are identical to the earlier final rule for benzene exposure, issued by OSHA in 1978. The subject of extensive litigation, the prior final rule was about two thirds shorter than the present rule. It had fewer exemptions, provided detailed protection against dermal and eye contact, required quarterly measurements unless exposure was below the action level (“at least monthly” if in excess of the PEL), new initial monitoring in the event of a change in the employer’s industrial process, and swifter examination of a urine sample in the event of emergency exposure. The first final rule was challenged by unions and by the chemical industry, iron and steel industry, rubber manufacturers, individual companies, and the petroleum industry. OSHA’s failure to provide a timely response to that petition gave rise to a petition in the federal courts for a writ of mandamus. In response to defeat these petitions, OSHA set forth a proposal for a rulemaking to modify the benzene standard within 14 months (1986), which defeated the union’s petition. In September 1987, OSHA issued a new rule for benzene regulation. Ironically, this standard provides similar protections compared to the original rule, but became law without further court review.
9Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 100 S. Ct. 2844, 65 L. Ed. 2d 1010, 8 O.S.H. Cas. (BNA) 1586, 1980 O.S.H. Dec. (CCH) P 24570, 10 Envtl. L. Rep. 20489 (1980). Ilise Feitshans, Law and Regulation of Benzene, 82 Environmental Health Perspectives 299307 (1989).
10Identification, Classification and Regulation of Carcinogens (“Cancer Policy” for generic regulation of carcinogens), 42 Fed Reg 54,148 (1977), final rule: 45 Fed. Reg. 5001 (1980).
11
exposure for cancer-causing agents. Under this construct, the agency instituted a “risk-free” workplace policy designed to apply technology-forcing standards at the frontiers of science at the lowest feasible level, even if they were expensive.12 Thus, OSHA’s justification for changing the existing benzene regulations was policy based, not scientific evidence showing harm derived from exposure to benzene at 10 ppm or less. OSHA argued, as it did before the lower court:
that it was the agency’s position that for regulatory purposes, where a safe threshold for exposure to carcinogens was not demonstrated, it would assume that none existed … [OSHA] cannot await scientific resolution of the issue but has a mandate to act now … and in the absence of … no-effect levels or safe levels to assume that none exist.
In the Court’s view, OSHA was required to clearly establish the potential saving of lives or health care resources in order to justify modification of the existing law. The statutory mandate to provide protection “to the extent feasible” in the OSH Act Section 6(b)(5) was examined thoroughly.13 API claimed that the term “feasible” was limited by economic constraints, in contrast to OSHA’s view that “feasible” means technologically achievable. Furthermore, API interpreted the term “feasible” in Section 6(b)(5) of OSH Act to include financial costs of implementing engineering controls or new forms of protection for workers that were not contemplated when the OSH Act was written.
Although the Court refused to construe the term feasible as requiring an economic cost-benefit analysis, the Court was compelled to forge a new standard of feasibility, based upon “significant risk” of harm. The Court required a finding of significant risk to be determined by the agency itself and adopted a concept of risk assessment for OSHA. (This concept of risk assessment is also required of other regulatory agencies, such as EPA and the FDA.)
It is worth noting however, that the Court did not offer a specific test for an acceptable risk assessment, as lower courts had done in the past. Nor did it indicate that it should provide such criteria to an agency which was charged by law with developing the expertise to create occupational health standards. The Court agreed with the lower court’s requirement that OSHA must find, “as a threshold matter that the toxic substance in question poses a significant health risk in the workplace and that a new, lower standard is ‘reasonably necessary and appropriate.’”14 It also stated that: “the lack of substantial evidence of discernable benefits is
Secretary’s Brief at 12.
12 Brief of Intervenor, Industrial Union Department, AFL-CIO On Consolidated Petitions to Review the Secretary’s Occupational Health Standard, Nos. 78-1253, 1257, 1486, 1676, 1677, 1707, 1745 American Petroleum Institute v. Occupational Safety and Health Admin., 581 F.2d 493, 6 O.S.H. Cas. (BNA) 1959, 1978 O.S.H. Dec. (CCH) P 23054, 8 Envtl. L. Rep. 20790 (5th Cir. 1978), judgment aff’d, 448 U.S. 607, 100 S. Ct. 2844, 65 L. Ed. 2d 1010, 8 O.S.H. Cas. (BNA) 1586, 1980 O.S.H. Dec. (CCH) P 24570, 10 Envtl. L. Rep. 20489 (1980).
13Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 100 S. Ct. 2844, 65 L. Ed. 2d 1010, 8 O.S.H. Cas. (BNA) 1586, 1980 O.S.H. Dec. (CCH) P 24570, 10 Envtl. L. Rep. 20489 (1980).
14Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 100 S. Ct. 2844, 65 L. Ed. 2d 1010, 8 O.S.H. Cas. (BNA) 1586, 1980 O.S.H. Dec. (CCH) P 24570, 10 Envtl. L. Rep. 20489 (1980). Ilise Feitshans, Law and Regulation of Benzene, 82 Environmental Health Perspectives 299307 (1989).
highlighted when one considers that OSHA is unable to point to any empirical evidence documenting leukemia risk at 10 ppm even though that has been the permissible exposure limit since 1971.” Thus, OSHA’s absence of sound statistical projections did not meet the test for “reasonably necessary” regulations. In the absence of a clear nexus between the evidence in the record and the conclusions to support OSHA’s actions, the Court declared the benzene regulations invalid.
It is significant that at one point, OSHA argued that it had statutory authority to compel employers to provide a “risk-free” workplace. It should be noted that with newer techniques for investigation, biostatistical assessment of epidemiological data, and more sensitive diagnostic testing, the benzene case might be decided differently today than it was in 1980. Although the “risk-free workplace” argument was not powerful enough to win in the Benzene case, it has remained a strong indicator of the prevailing ethos within the agency. Given the correct circumstances, where there is substantial evidence to support the agency’s position, it can be a powerful tool for enforcement. It demonstrates OSHA’s desire for a risk-free workplace which in turn requires in-house compliance pro grams to take their assignments a dimension beyond the plain meaning of compliance orders. It mandates them to implement flexible programs that will absorb and employ new technologies, prevent potential hazards, and thereby meet OSHA’s evolving compliance requirements.
In performing risk assessments in connection with promulgating health standards, OSHA has generally taken the position “as a matter of policy …, that assessments should be put into quantitative terms to the extent possible.”15 Most OSHA risk assessments have focused on estimating the risk of cancer to nonreproductive functional capacities, (i.e., lung, colon, etc.) from occupational exposure to toxic substances,16 since the risk of adverse noncancer health effects, such as reproductive or developmental toxicity, are difficult to quantify. Consequently, OSHA has used a qualitative “No Observed Effect Level-Uncertainty Factor” (NOEL-UF)17 approach in describing the reproductive risks associated with exposure to toxic substances (e.g., glycol ethers).18 (OSHA’s use of the NOEL-UF approach closely follows EPA guidelines.)19 or
15Preamble to glycol ether rule, 58 Fed. Reg. at 15,547.
16In carcinogen risk assessment, mathematical models are fit to dose-response data from animals and used to make predictions of risk to humans at a variety of doses. Although there are a number of mathematical models available to fit to carcinogen dose-response data, there is a lack of consensus within the risk assessment community as to which models are the“best”. For a history of OSHA’s use of risk assessment see Graham, et al., In Search of Safety: Chemicals and Cancer Risk 80-91 (1988).
17NOEL is sometimes also described as NOAEL-no observed adverse effect level.
1858 Fed. Reg. at 15,548.
19U.S. Environmental Protection Agency, Final Guidelines for the Health Assessment of Suspect Developmental Toxicants, 51 Fed. Reg. 34,028 (1986). The EPA method of noncancer risk assessment focuses on estimating the reference dose. According to EPA, the reference dose
the “benchmark dose.”20 The benchmark dose, which has been used favorably reviewed by the EPA,21 can generate quantitative dose-response information. Regarding workplace exposures, the U.S. Congress Office of Technology Assessment recognized that, “The objective of risk assessment is not simply to identify a connection between a hazardous agent and an adverse effect. Exposure to the agent must be quantified into the form of a measurable index such as air contaminant concentration, absorbed dose, or blood chemistry. The nature and severity of effects is characterized at varying levels of exposure.”22 These issues regarding occupational exposures have been integrated, in part, into the law of significant risk, as evinced in recent OSHA appellate litigation and in the agency’s proposed treatment of emerging data regarding reproductive health hazards in the workplace.
1:84. Law of significant risk– Cancerphobia: Norfolk v. Ayers
In Norfolk v. Ayers,1 several asbestosis claimants brought an action under the Federal Employers’ Liability Act (FELA)2 against their former employer, Norfolk and Western Railway. Norfolk, they alleged, negligently exposed them to asbestos, which caused them to contract the occupational disease asbestosis, one of few diseases that was specifically discussed by Members of Congress in the legislative history of the OSH Act. Asbestos was, not surprisingly, one of the first substances about which a federal, nationwide OSHA standard was promulgated, in order to
is;“the estimate of a daily exposure of a substance to a human population below which adverse noncancer health effects are not anticipated” 40 C.F.R. pt 300, Appendix A (July 1, 1993).
The first step in establishing a reference dose is to find the lowest observed adverse effect level (LOAEL) or the NOAEL. Because human data is often unavailable, the reference dose is usually computed by examining data from animal studies. The LOAEL or NOAEL is then modified to account for uncertainty in extrapolating human risk from animal studies and to reflect variability in the human population (i.e., individual human beings with varying metabolism or sensitive human subpopulations). For a discussion of uncertainty in calculating the reference dose, see Dourson & Stara, Regulatory History and Experimental Support of Uncertainty (Safety) Factors, 3 Reg Toxicology & Pharmacology, 224-238 (1983).
20See Crump, A New Method For Determining Allowable Daily Intakes, 1 Fund Appl Toxicol 854-871 (1984).
21U.S. Environmental Protection Agency, The Use of the Benchmark Dose in Health Risk Assessment (EPA 630/R-94/007) (Feb. 1995).
22 Jack Levy, Ilise Feitshans and John Kasdan, Industrial Hygiene Law Project, Brief Amicus Curiae in Support of Respondent, IUAW v. Johnson Controls, No. 89-1215, at 14, citing U.S. Congress Office of Technology Assessment Preventing Illness and Injury in the Workplace, Washington, D.C. US, GPO 1985, Ch 3.
1Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 123 S. Ct. 1210, 155 L. Ed. 2d 261, 19 I.E.R. Cas. (BNA) 1217, 2003 A.M.C. 609, 33 Envtl. L. Rep. 20155 (2003).
2Federal Employers’ Liability Act (FELA), §§1 et seq., 35 Stat. 65 (codified 45 U.S.C.A. §§51 et seq.).
prevent the exposures that lead to occupational disease. From the standpoint of clinical care and medical diagnosis, asbestosis is not cancer, but it is true that many people who have asbestosis eventually develop cancer, for reasons that are unknown to modern medicine. The precise mechanism of the natural history of these two diseases are unknown, but the correlation between them is high so that people often confuse the two conditions and, the concept that people with asbestosis are at high risk for cancer is reasonably well accepted.
For this reason, as an element of their occupational disease damages, the asbestosis claimants sought recovery for mental anguish based on their fear of developing cancer. Alleging that petitioner Norfolk & Western Railway Company (Norfolk) had negligently exposed them to asbestos and thereby caused them to contract the occupational disease asbestosis, respondents, six former Norfolk employees (asbestosis claimants), brought this suit in a West Virginia state court under the Federal Employers’ Liability Act (FELA).3 In a novel view of the law of significant risk, the U.S. Supreme Court upheld the rights of these injured employees to be compensated for their present fear of future illness under the federally-based workers compensation law, FELA in Norfolk and Western Railway v. Ayers. In Norfolk, plaintiff employees sought damages for their current injury, which, they allege, encompasses a present fear that the toxic exposure causative of asbestosis may later result in cancer. Former railroad employees brought suit against the railroad in West Virginia state court under the Federal Employers’ Liability Act (FELA), alleging the railroad negligently exposed them to asbestos and thereby caused them to contract the occupational disease asbestosis. FELA cases may be brought, at plaintiff’s option, in federal court or in state court. The Circuit Court, Kanawha County, entered judgment on jury verdicts in favor of each plaintiff, and railroad requested discretionary review. The Supreme Court of West Virginia denied review, and the railroad sought certiorari which was granted. The U.S. Supreme Court, held that: (1) mental anguish damages resulting from the fear of developing cancer may be recovered under the FELA by a railroad worker suffering from the actionable injury asbestosis caused by work-related exposure to asbestos; (2) although a plaintiff who has asbestosis but not cancer can recover damages for fear of cancer under FELA without proof of physical manifestations of the claimed emotional distress, it is incumbent upon such a plaintiff to prove that his alleged fear is genuine and serious; and (3) FELA allows a worker to recover his entire damages from a railroad whose negligence jointly caused an injury, thus placing on the railroad the burden of seeking contribution from other tortfeasors.
There are several implications of this decision for the future of occupational health standards under OSH Act. First, this decision underscores the notion that OSHA standards and the actions of the agency inevitably have an indirect influence on public understanding of injury, illness, occupational disease and the work-relatedness of injury following some types of exposures. This inescapable influence upon public policy is consistent with the purposes of OSH act, and such influence exists despite preemption exclusions that prohibit OSHA from regulating in a manner that will enlarge or diminish rights under state laws,4 and also exists despite OSH
3FELA, 45 U.S.C.A. §56.
4 See Admissibility of OSH Act Evidence in a Negligence Action: Scott v. Matlack, Inc. In a carefully researched and detailed opinion, the Colorado Supreme Court found that OSHA regulations may not be applied but may be borrowed to provide some evidence of a relevant standard of care for negligence in a state court claim under the common law without enlarging or
Act Section 4(b)(4)’s limit upon the regulation of working conditions where other federal agencies have exercised their jurisdiction. In addition, the implications for in-house compliance programs protecting occupational health and preventing occupational disease are quite far-reaching, because this decision by the U.S. Supreme Court heralds recognition of the reasonably anticipated effects of occupational diseases can cause emotional distress.
1:85 Criminal Penalties for Contractor Who Hired Homeless to Remove Asbestos
Roanoke Virginia officials reportedly have adopted stricter standards regarding asbestos removal protections for workers in the wake of a recent scandal, whereby a contractor hired homeless people to remove asbestos and was sentenced to 21 months in prison for his failure to protect this vulnerable population.5 The federal prosecutors used the employee’s homeless status to argue for a stiffer sentence against the employer because the victims were considered “vulnerable” under the terms of the federal sentencing guidelines. Additionally, the offending former employer will be on supervised release for three years after serving his prison term. According to reports based on the court documents, the offending employer “had hired the three men in 2005 to take asbestos from the ceiling and pipes in the basement of the State and City Building on Campbell Avenue (Roanoke, Va),”6 giving them only raincoats and paper masks as protection against the deadly dust. Also, the men ate without their masks in the basement at the removal site, and then the asbestos was put into trash bags and sent to regular landfill, instead of a hazardous waste facility as required by the Clean Air Act. It is worth noting from the standpoint of occupational health services and planning for health promotion that the offending employer who went to prison was not required to provide medical surveillance and follow-up for the illegally exposed workers because he had no funds to do so. Furthermore, due to the impoverished status of the offending employer, fines were waived. Both the waiving of fines and the failure to develop a system for follow-up medical care raise important policy questions regarding the viability of small employers and the need for broad-based occupational health service programs in the USA.
1:86. Prohibition on cost-benefit analysis: ATMI v. Donovan
ATMI v. Donovan1 (the “Cotton Dust Case”) filled the void that was created by unanswered questions after the Benzene case. In Cotton Dust, the Benzene case became a touchstone for evaluation of the role of risk assessment in lieu of cost-benefit analysis within OSHA’s regulatory process. In particular, questions of cost-benefit were answered as the Court applied, for the first time, its concept of finding of significant risk. The Court paid close attention
diminishing rights as prohibited by OSH Act Section 4(b)4.
5See Mike Ganghoff, Contractor Accused of Hiring Homeless to Deal with Asbestos Sentenced to Prison (Aug. 2, 2007), available at http://www.roanoke.com/news/breaking/wb/126465.
6See Mike Ganghoff, Contractor Accused of Hiring Homeless to Deal with Asbestos Sentenced to Prison (Aug. 2, 2007), available at http://www.roanoke.com/news/breaking/wb/126465.
1American Textile Mfrs. Institute, Inc. v. Donovan, 452 U.S. 490, 101 S. Ct. 2478, 69 L. Ed. 2d 185, 9 O.S.H. Cas. (BNA) 1913, 1981 O.S.H. Dec. (CCH) P 25457, 11 Envtl. L. Rep. 20736 (1981).
to the slow and painful disease process of byssinosis, the disease that is caused by occupational exposure to excessive levels of cotton dust. It also noted that byssinosis, commonly called “white lung,” was clearly discussed by Congress when it contemplated the protections that would be offered by the OSH Act. Thus, the Court held that protection against byssinosis was one factor that Congress considered when it struck the balance favoring workplace safety and health protections. The Court upheld OSHA’s Cotton Dust standard and held that the OSH Act places the benefit of worker health above all other considerations, unless correction of the hazards involved is impossible. Thus, OSHA only conducts a feasibility analysis, rather than cost-benefit analysis, to determine which protections are required by law. It should be noted, however that this case has also become a symbol for the Congressional intention to allow protection under the OSH Act without regard to cost. The expense of compliance is justified, under Cotton Dust, if a significant risk of harm is avoided and the regulation is reasonably supported by OSHA’s evidence.
1:87. Review commission’s adjudicatory role: Cuyahoga Valley Railway Company v. United Transportation Union
Cuyahoga Valley Railway Company v. United Transportation Union posed a simple procedural question under the OSH Act, with important substantive implications. In Cuyahoga Valley, the Secretary of Labor issued a citation to Cuyahoga Valley Railway for violation of the OSH Act. The citation was brought before OSHRC.1 During the OSHRC proceedings, the United Transportation Union intervened. At the hearing, the Secretary’s motion to vacate the order against the railway was granted, but OSHRC ultimately remanded the case for review of the union’s concerns. The U.S. Supreme Court held that the Secretary has unreviewable discretion to withdraw a citation charging an employer with violating the Act. OSHRC’s decision resulted in a confusion of the two roles, arbiter and prosecutor, and was overturned. The Court found that OSHRC should function as a neutral arbiter, but its authority does not extend to the Secretary’s decision to withdraw a citation. It also found that the Secretary of Labor has prosecutorial discretion to determine whether a citation should be brought, or once it has been brought to the Commission, whether it should be withdrawn.
1:88. Paperwork Reduction Act: Dole v. United Steelworkers
The debate regarding the importance of economic considerations (despite the prohibitions against cost-benefit analysis under the OSH Act) has persisted throughout the decade of the 1980s, permeating into areas concerning the implementation of the Hazard Communication Standard. In Dole v. United Steelworkers, OSHA submitted the requirements for employer disclosure of hazards to employees to the Office of Management and Budget (OMB) for that agency’s review under the Paperwork Reduction Act.1 OMB disapproved three of the standard’s provisions because the requirements “were not necessary to protect employees.”2 The Court held
1Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3, 106 S. Ct. 286, 88 L. Ed. 2d 2, 12 O.S.H. Cas. (BNA) 1521, 1984-1985 O.S.H. Dec. (CCH) P 27413 (1985).
144 U.S.C.A. §3502.
2Dole v. United Steelworkers of America, 494 U.S. 26, 110 S. Ct. 929, 108 L. Ed. 2d 23, 14 O.S.H. Cas. (BNA) 1425, 1990 O.S.H. Dec. (CCH) P 28820, 20 Envtl. L. Rep. 20447 (1990).
that the Paperwork Reduction Act does not reach the disclosure of information to third parties (other than the Agency itself), as distinguished from necessary “reporting and recordkeeping” of information for governmental purposes. Thus, material safety data sheets (MSDS) and other informational requirements for disclosure by employers, manufacturers, and downstream employers are not prohibited under the Paperwork Reduction Act, and such disclosures remain required by the OSH Act and OSHA regulations.
1:89. Freedom of Information Act limits on discovery: Cooper Cameron Corporation v. United States Department of Labor
In Cooper Cameron Corporation v. United States Department of Labor,1 an employer brought an action under the Freedom of Information Act (FOIA)2 to compel the Occupational Safety and Health Administration (OSHA) to release records of its interviews with workers during investigation of a workplace accident. On cross-motions for summary judgment, the district court held that: (1) records fell under FOIA exception for confidential statements in law enforcement records, and (2) records fell under FOIA exception for information relating to identity of confidential sources. Even though an agency has the burden of establishing exempt status of record under FOIA, disclosure requirements not only encompass personal, intimate details, but they also include types of information that one could reasonably assert an option to withhold from the public at large because of its intimacy or its possible adverse effects upon himself or his family. It is consistent also with the whistleblower protections in the OSH Act’s antidiscrimination clause, OSH Act Section 11(c), that statements made by workers to investigators in the course of an OSHA investigation of a workplace accident were exempt from disclosure under an FOIA3 exception precluding the release of confidential information in records compiled for law enforcement purposes.
To demonstrate that information was compiled for law enforcement purposes that meet the standard for this exception, OSHA proved that: (1) its investigative activities are related to the enforcement of federal laws, and (2) there is a rational connection between the investigation and the agency’s law enforcement duties. The court also found that the government is not required to “detail the precise harm which disclosure would inflict upon the privacy interests of each individual; rather, it must only show that release of the information ‘could reasonably’ result in an unwarranted invasion of privacy.” Both common law and popular understandings of privacy include the individual’s control of information concerning oneself, which the court construed as including detrimental consequences to a person’s job or livelihood.4 The court
1Cooper Cameron Corp. v. U.S. Dept. of Labor, 118 F. Supp. 2d 757 (S.D. Tex. 2000), aff’d in part, rev’d in part, 280 F.3d 539 (5th Cir. 2002).
2Freedom of Information Act (FOIA), 5 U.S.C.A. §552. The privacy exception ““was enacted to facilitate public access to Government documents,”” and ““was designed to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.”” Avondale Industries, Inc. v. N.L.R.B., 90 F.3d 955, 958, 152 L.R.R.M. (BNA) 2979 (5th Cir. 1996) (unless exempted by statutory language, the policy of full disclosure is warranted).
35 U.S.C.A. §552(b)(7)(C).
4Cooper at 922. Courts have recognized that an employer can retaliate against employees after
therefore found also that the employer’s request for witness interviews fell within the exemption. Specifically, OSHA has met its burden in showing that the privacy interests of the witnesses outweigh the public’s general interest in disclosure. The court, as a threshold matter, finds that Exemption 7 is properly invoked because the information that Cooper Cameron seeks was compiled for law enforcement purposes.5 This is consistent with OSH Act text. Section 658 states that, if upon inspection or investigation, OSHA believes “that an employer has violated a requirement of Section 654 of this title, or any… regulations prescribed pursuant to this chapter, he shall with reasonable promptness issue a citation to the employer.”6
These privacy interests outweigh the public’s interest in disclosure because of the public health investigatory imperative embued within the plain meaning of the OSH Act itself. FOIA’s purpose “is to ensure that the Government’s activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed.” Despite employer claims that the public interest favors disclosure to ensure that OSHA has investigated the accident adequately, OSHA successfully maintained that disclosure of private witness information would undermine its investigative powers because future cooperation from individual witnesses would be chilled. The court agreed, and held that the public interest is properly served by nondisclosure.7
1:89. OSHA’s Own Interpretation of agency rules: Martin v. OSHRC
In Martin v. OSHRC,1 the Supreme Court unanimously held that a reviewing court should defer to the Secretary of Labor’s reasonable interpretation of an OSHA standard, rather than OSHRC’s view when the Secretary and the OSHRC furnish reasonable but conflict ing
furnishing information to federal law enforcement agencies. See N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 240, 98 S. Ct. 2311, 57 L. Ed. 2d 159, 98 L.R.R.M. (BNA) 2617, 3 Media L. Rep. (BNA) 2473, 84 Lab. Cas. (CCH) P 10643 (1978). Even before the 1986 amendment to Exemption 7(C), courts protected identities of employee-witnesses in the course of an OSHA investigation with respect to information that was given to the agency. See Cuccaro v. Secretary of Labor, 770 F.2d 355, 359-360, 12 O.S.H. Cas. (BNA) 1441, 1984-1985 O.S.H. Dec. (CCH) P 27361 (3d Cir. 1985); Miles v. U.S. Dept. of Labor, 546 F. Supp. 437, 440-441 (M.D. Pa. 1982); Lloyd and Henniger v. Marshall, 526 F. Supp. 485, 487 (M.D. Fla. 1981).
5The information that OSHA compiled with respect to the witnesses’ statements and the Lyondell explosion satisfies the two-pronged inquiry. OSHA’s law enforcement function is carried out pursuant to 29 U.S.C.A. §§657 and 658. Section 657 provides that OSHA has the authority to “enter without delay … any factory, plant, … or other area … where work is performed by an employee of an employer,” and to “inspect and investigate … any such place of employment and all pertinent conditions,” and to “question privately any such employer, owner, operator, agent or employee.” 29 U.S.C.A. §657.
6OSH Act, 29 U.S.C.A. §658.
7See Housley v. U.S. Dept. of Treasury, 688 F. Supp. 37, 39 (D.D.C. 1988).
1Martin v. Occupational Safety and Health Review Com’n, 499 U.S. 144, 111 S. Ct. 1171, 113 L. Ed. 2d 117, 14 O.S.H. Cas. (BNA) 2097, 1991 O.S.H. Dec. (CCH) P 29257 (1991).
interpretations of an ambiguous regulation. This was based on the fundamental concept that the power to render authoritative interpretations of regulations promulgated pursuant to the OSH Act is a “necessary adjunct” of the Secretary’s powers to promulgate and enforce safety and health standards. The Court found that the ability to promulgate standards and to enforce them gives the Secretary the ability to interpret standards. In that case, the OSHRC had decided that a regulation governing respirator training and use did not also require that respirators fit properly, and the OSHRC vacated the citation that had been given. The Secretary stated, however, that the OSHRC had no power to “declare” the law, and that the view interpreting the standard as requiring employers to provide properly fitting respiratory protection was valid. The Court based its acceptance of the Secretary’s view on the Congressional delegation of interpretative lawmaking power under the OSH Act. The Court noted that although under most administrative schemes rulemaking, enforcement and adjudicatory powers are combined in one agency, under the OSH Act, Congress separated adjudication from other powers. Thus, the power to render substantive interpretations is a “necessary adjunct” of the enforcement and regulatory authority granted to the Secretary under the OSH Act.2
1:90. Preemption of State Environmental and Occupational Protections: Gade v. National Solid Waste Management Association1
In Gade v. National Solid Waste Management Association,2 the nationwide trade association that represents major hazardous waste disposers brought an action for declaratory judgment and to enjoin the Illinois Environmental Protection Agency from enforcing two Illinois laws that provided for the licensing of hazardous waste site workers. As a condition of such a state license, the Illinois law required training and proficiency testing of workers, and extended work experience. The question before the court was whether the Illinois statutes were preempted by the Federal Occupational Safety and Health Act. The district court had held that they were not. The court of appeals affirmed in part, vacated in part, and remanded. On certiorari, the Supreme Court, in a plurality opinion by Justice O’Connor, joined in by Chief Justice Rehnquist and Justices White and Scalia, with Justice Kennedy concurring in the result, found that the OSH Act preempted the state law and that the state acts were not saved by the fact that they addressed not only workplace safety but also general public protection.
The plurality opinion found neither field preemption nor specific conflict because there
2Martin v. Occupational Safety and Health Review Com’n, 499 U.S. 144, 111 S. Ct. 1171, 113 L. Ed. 2d 117, 14 O.S.H. Cas. (BNA) 2097, 1991 O.S.H. Dec. (CCH) P 29257 (1991).
1This section was written by Frank P. Grad, Joseph P. Chamberlain Professor of Legislation and Director, Legislative Drafting Research Fund, Columbia University School of Law. Used by permission of the author, this Supreme Court analysis for the case of Gade v. National Solid Waste Management Ass’n is excerpted from the Foreword by Professor Grad to the Supreme Court Review of 1992’s developments in Environmental Law, 43 Washington University Journal of Urban and Contemporary Law 3 (1993).
2Gade v. National Solid Wastes Management Ass’n, 505 U.S. 88, 112 S. Ct. 2374, 120 L. Ed. 2d 73, 15 O.S.H. Cas. (BNA) 1673, 1992 O.S.H. Dec. (CCH) P 29709, 22 Envtl. L. Rep. 21073 (1992).
was no federal conflicting law on the specific subject. However, it found implied preemption, having considered whether a state law which merely sought to supplement the federal act was preempted by it. In Justice O’Connor’s view, the law allowed state action legislation on subjects covered by OSHA only with the approval of the Secretary, pursuant to Section 18(b) of the OSH Act. Since the state had not sought such approval, the supplemental state law was preempted, even though there was no direct showing that it conflicted with the federal law.
The Court also held that the Illinois legislation violated federal preemption because Illinois cannot regulate worker health and safety under the guise of environmental regulation. The Court noted that the requirement of 4,000 hours of experience could not survive preemption simply because the rule might also enhance public health and safety. There was no explanation why a sound rule of occupational health and safety, if not preempted, may not also protect public health. In dissent, Justice Souter, joined by Justices Blackmun, Stevens, and Thomas, relied heavily on the presumption against preemption, and, examining the legislative history, concluded that there was no intention to preempt in the OSH Act. Noting that OSH Act anticipated that states would supplement the regulatory provisions of the OSH Act and its regulations, and that the very requirement of approval of state legislation on occupational safety and health by the Secretary indicated that Congress did not intend to preempt the field, nor was the provision indicative of a refusal by Congress to accept state provisions which did not conflict with the OSH Act, but which were supplemental to it. The dissent also relied on Section 18(a), which allows state law jurisdiction over occupational safety or health issues when there is no federal standard in effect under Section 655 of OSH Act, so that the preemption issue does not arise.3 The dissent disagreed, however that the Illinois law was a impermissible effort to enact occupational safety and health requirements under the guise of enacting environmental law.
Uncertainty about how to resolve preemption issues is illustrated by Justice Scalia’s concurrence, where he stated that the OSH Act was expressly preemptive of state law, and not impliedly preemptive. Overall, the US Supreme Court preemption decisions indicate a clear preference for federal power, particularly when the exercise of the state’s police power would provide greater environmental protection at the expense of property interests. Precedents that involved state laws that banned the disposal of out-of-state waste included one situation where state law clearly imposed a discriminatory exaction on out-of-state commerce.4 In the other, a burden on interstate commerce was found even though the state had enacted a rather complete regulatory scheme which only incidentally affected out-of-state waste disposers.5 In the Gade case where preemption was unclear, the decision resulted in the protection of major commercial
3United Steelworkers of America, AFL-CIO-CLC v. Auchter, 763 F.2d 728, 12 O.S.H. Cas. (BNA) 1337, 1984-1985 O.S.H. Dec. (CCH) P 27293, 15 Envtl. L. Rep. 20545 (3d Cir. 1985). The case protects more stringent state regulation against preemption by less effective federal requirements. The decision reflected the accepted view of the occupational safety and health field until the Gade case.
4 Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334, 112 S. Ct. 2009, 119 L. Ed. 2d 121, 34 Env’t. Rep. Cas. (BNA) 1721, 22 Envtl. L. Rep. 20909 (1992).
5Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504 U.S. 353, 112 S. Ct. 2019, 119 L. Ed. 2d 139, 34 Env’t. Rep. Cas. (BNA) 1728, 22 Envtl. L. Rep. 20904 (1992).
waste disposal interests against substantial cost increases which would have resulted from the application of the Illinois legislation. 6
1:91. Employee cannot undertake risks to oneself: Chevron v. Echazabal
In Chevron v. Echazabal,1 the U.S. Supreme Court explored whether the “direct threat” affirmative defense available to employers under the Americans with Disabilities Act (ADA),2 applies to employees, or prospective employees, who pose a high risk to their own health or safety, but pose no risk to the health or safety of other people in the workplace. Finding that people who do not present a risk to others, but do pose a risk to themselves can be excluded from the workplace, the case opens up many new questions regarding the appropriate methods for implementing ADA’s goals of equal opportunity while also implementing occupational health protections. In the past, notions of disability-based discrimination protections mean that employment laws would not allow a worker to suffer from stigma for illness that is “not manifest.” In those days, the notion that an employee was protected from risk to oneself was viewed as a paternalistic euphemism for shielding the disfigured, unemployable disabled from contact with the general public.
Pre-ADA case law had taken agreed that an employer’s fear of risk to others or oneself could not constitute a reason for termination. For example, the U.S. Supreme Court reinstated a schoolteacher whose tuberculosis was not contagious and was in remission under the Rehabilitation Act, the historical antecedent to the ADA, in School Board of Nassau County v. Arline.3 Noteworthy too, in Arline,4 was that even though the complaining worker had been
6The primary public health emphasis of CERCLA as amended by SARA, the Superfund Amendment and Reauthorization Act, Pub L No. 99-499, §§300 to 330, 100 Stat 1613, is evident from the high priority which is to be given to response actions to protect drinking water supplies, CERCLA §118, 42 U.S.C.A. §9618. This emphasis on public health protection is also reflected in the amendment of CERCLA §104(i) which requires the completion of treatment necessary to restore ground and surface water quality to a level that assures protection of human health and the environment. Similar public health emphasis is evident in the expansion of the authority and functions of the Agency for Toxic Substance and Disease Registry (ATSDR) which requires steps to collect toxicological information so as to determine specific impacts of toxicity on different aspects of human health. ATSDR must also perform far-reaching public health assessments to determine what action must be taken to protect the exposed population. The entire effort to clean up hazardous waste sites and to expend billions of dollars for this purpose is justified on public health grounds.
1Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 122 S. Ct. 2045, 153 L. Ed. 2d 82, 67 Cal. Comp. Cas. (MB) 781, 13 A.D. Cas. (BNA) 97 (2002).
2Americans with Disabilities Act (ADA), 42 U.S.C.A. §§12101 et seq.
3See the landmark decision in School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 287, 107 S. Ct. 1123, 94 L. Ed. 2d 307, 1 A.D.D. 313, 1 A.D. Cas. (BNA) 1026, 37 Ed. Law Rep. 448, 43 Fair Empl. Prac. Cas. (BNA) 81, 42 Empl. Prac. Dec. (CCH) P 36791 (1987) (““an individualized inquiry”” protects disabled individuals “from deprivations based on prejudice, stereotypes, or unfounded fear”).
denied employment because the employer had determined on its own that the risk to oneself and others was too great, the Court was persuaded that such prejudiced views were not bottomed on medical evidence or relevant facts. Thus, the Court in Arline understood the need for limits on employer discretion. Echazabal adopts a different view, one that means a great deal for the future of occupational health compliance programs because occupational health could, on occasion be at loggerheads with equal employment concerns. In the event this happens, however, it is the in-house corporate compliance staff, and most particularly the in-house occupational physician, who is obligated to make the judgment call relying on personal expertise. In Chevron,5 the respondent, worked for one of the several independent contractors at one of Chevron’s oil refineries. Chevron refused to hire him because of a liver condition, which its doctors said would be exacerbated by continued exposure to toxins at the refinery. The contractor employing him laid him off in response to Chevron’s request that it reassign him to a job without exposure to toxins or remove him from the refinery. Echazabal filed suit, claiming, among other things, that Chevron’s actions violated the ADA. Chevron defended under an Equal Employment Opportunity Commission (EEOC) regulation permitting the defense that a worker’s disability on the job would pose a direct threat to his health. The District Court granted Chevron summary judgment, but the Ninth Circuit reversed, finding that the regulation exceeded the scope of permissible rulemaking under the ADA. The U.S. Supreme Court ultimately ruled that the employer could make the determination that employment should be denied if there was risk of harm to oneself. This decision has the potential to bring occupational medicine practice to a crossroads. If employers can determine for themselves who is fit for employment and whether there is acceptable risk or too great a risk undertaken by their employment, it is possible that there is no need for preventive laws such as the OSH Act or related state and federal laws.
There may be more discretion accorded to the employer’s decision after Chevron, under the construct of ADA, espoused by the U.S. Supreme Court. On the other hand, this decision creates a large and important role for the in-house occupational safety and health staff, especially those who administer the occupational health services that involve periodic testing, medical surveillance of degenerating conditions (regardless of whether the cause is on or off the worksite) and biological monitoring. Yet, disability is a multi-dimensional construct, entailing an understanding of physical and mental characteristics and the progressive improvement or
4School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 287, 107 S. Ct. 1123, 94 L. Ed. 2d 307, 1 A.D.D. 313, 1 A.D. Cas. (BNA) 1026, 37 Ed. Law Rep. 448, 43 Fair Empl. Prac. Cas. (BNA) 81, 42 Empl. Prac. Dec. (CCH) P 36791 (1987) (finding that there was no basis in medical fact for the employer’s actions, the Court overturned termination of a teacher with non-contagious tuberculosis whose illness was in remission).
5Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 122 S. Ct. 2045, 153 L. Ed. 2d 82, 67 Cal. Comp. Cas. (MB) 781, 13 A.D. Cas. (BNA) 97 (2002). Ilise Feitshans, Brief Amicus Curiae February 2002, In the Supreme Court of the United States CHEVRON U.S.A. INC., v. ECHAZABAL, BRIEF FOR PHYSICIANS WHO TEACH OCCUPATIONAL MEDICINE, Dr. Mark Cullen, Yale University Medical School Department of Occupational and Environmental Medicine and Dr. Tee L Guidotti, The George Washington University Department of Occupational and Environmental Health, concurring with ACOEM
degeneration of cognitive abilities. Thus, access and the equal opportunity provided to people with disabilities under law means more that creating an ramp up, even when the employer must endure financial costs or other expenses to comply with law. The leeway granted to employers is crucial to having practical ways of implementing the laws.
Reconciling these two views will therefore be the subject of litigation for many years ahead. The implications of the Chevron decision will therefore impact all work with chemicals, toxins and physical agents that may change a healthy worker’s well-being. Also this has implications for conditions that may be altered by chemicals or physical agents that are unique to the worksite. Although the Court has once again, failed to set forth the parameters for risk assessment or other medical guidelines, it is clear that there is a burden as well as a freedom for employers who enjoy this latitude to determine occupational medicine placement issues for themselves. This must increase the priority given to in-house occupational health and safety programs, starting with the actual availability of funds and equipment for the provision of adequate occupational health services, and embracing also the attention given to compliance programs throughout the hierarchy of the enterprise.
1:91 B Court of Appeals: The Case that Never Ends
In the seemingly never-ending case of Chevron v. Echazabal,1 the lower courts received the case after the US Supreme Court had resolved some points but not others. After nine years of litigation, the courts have not definitively clarified the concept of when it is ok to bar an employee from a job that could make him ill. The results, are puzzling and complicated. In 2003, the California district court has created the potential to bring occupational medicine practice to a crossroads by sending issues of material fact in the case to trial.2 For more than two decades until the early 1990’s Mario Echazabal worked for an independent contractor at a Chevron oil refinery in California. Chevron’s medical staff determined that Mr. Echazabal had a liver condition that would be exacerbated by continued exposure to toxins at the refinery. Eventually, after turning Mr. Echazabal down for employment twice because of his condition, Chevron asked the subcontractor to change Mr. Echazabal’s position. Previously, in 1996, his employment was terminated after 24 years of service. Mr. Echazabal filed a suit against Chevron, claiming that the company’s actions violated the Americans with Disabilities Act of 1990 (ADA).3
1Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 122 S. Ct. 2045, 153 L. Ed. 2d 82, 67 Cal. Comp. Cas. (MB) 781, 13 A.D. Cas. (BNA) 97 (2002).
2See Ilise L. Feitshans, J.D., Sc.M. This is The Case that Never Ends: California Court Sends Issues of Material Fact to Trial in Seven Year Old Litigation of Echazabal v Chevron, Clinical Care (Nov. 2003).
342 U.S.C.A. §12101. Prior to the U.S. Supreme Court decision in Chevon v. Echazabal, an employer’s fear of risk to others or oneself could not constitute a reason for termination. For example, in School System School Bd. of Nassau County v. Arline, the U.S. Supreme Court reinstated a school teacher whose tuberculosis was not contagious and was in remission. The ruling was made under the Rehabilitation Act, the historical antecedent to the Americans With Disabilities Act. In the Arline case, the complaining worker was denied employment because the employer had determined on its own that the risk to oneself and others was too great. The U.S.
The employer’s defense was based on an Equal Employment Opportunity Commission (EEOC) regulation permitting the argument that a worker’s disability on the job would pose a direct threat to one’s own health. After years of working through the litigation labyrinth from the lower courts all the way up to the Supreme Court and back down again, the Ninth Circuit held that the ADA does not provide an affirmative defense permitting an employer “to refuse to hire an applicant on the grounds that the individual, while posing no threat to the health or safety of other individuals in the workplace, poses a direct threat to his own health or safety.” In 2002, the Supreme Court reversed this view, stating there is such a defense available to employers, but left open the question of whether the defense applied, and therefore leaving undecided the question of whether there are grounds for summary judgment.
The case was sent back to the courts in California, where in July 2003, the long and winding road of litigation pointed to genuine issues of material fact. The case will go to trial in the same California district court where it was brought in the first place. All courts thus far have attempted to show the link between their reasoning and the existing criteria regarding hazards that might mitigate enforcement of the ADA. If an individual poses a direct threat, the regulations require the employer to consider: 1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood that the potential harm will occur; and 4) the imminence of the potential harm.4 The regulations require that those factors be assessed “based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence,” and “not on subjective perceptions, irrational fears, patronizing attitudes, or stereotypes.”5 The regulations require an employer to conduct an “individualized” and “objective” assessment of whether the individual’s performance of the job raises a “significant risk of substantial harm to the health or safety of the individual.”6
In 2005, the trial court once again examined whether the medical evidence creates a sufficient record of potential harm to oneself to provide the employer with the affirmative defense the Supreme Court clarified in 2002,7 or in the alternative, provide insufficient evidence
Supreme Court was persuaded that the firing was not based in medical evidence, but was rooted in prejudice and myths about the limitations of disabled workers, and therefore required the employer to rehire the worker.
429 C.F.R. §1630.2(r).
529 C.F.R. pt. 1630, app. §1630.2(r).
629 C.F.R. §1630.2(r).
7In Echazabal, the Supreme Court adopted a different view that could mean a great deal for the future of occupational health compliance programs because occupational health could, on occasion, be at loggerheads with equal employment concerns. When the Supreme Court held that the direct threat defense includes threats to an employee’s own health, it also held the EEOC’s direct threat regulation, 29 C.F.R. §1630.15(b)(2) (defining the defense to include threats to the employee), to be valid. The Ninth Circuit in 2003 therefore opined, ““In light of Echazabal, the only remaining issue on remand is whether Chevron has met the requirements for assertion of the direct threat defense. Specifically, we must decide whether Chevron based its
of risk, in which case the employee should be rehired with back pay or other benefits, with precedentially consistent ambiguity. The circuit court’s 2003 response to the Supreme Court’s finding opens up many new questions regarding appropriate methods for implementing the ADA’s goals of equal opportunity while also implementing occupational health protections.8 Employers have a legitimate interest in preventing workers from taking jobs that have a high probability of causing injury. When the Ninth Circuit was presented with the same case after the Supreme Court had interpreted a corner of the ADA statute, the California court found genuine issues of material fact that prevented summary judgment. The recent court decision implicitly creates a large and important role for occupational safety and health professionals, especially those who administer the occupational health services that involve periodic testing, medical surveillance of degenerating conditions (regardless of whether the cause is on or off the worksite) and biological monitoring, because a vibrant occupational health compliance program addresses underlying medical issues competently and with fair application of the relevant evidence.
1:92 Beware Conflicting Statutes (Mis)lead Compliance Programs:
Since the U.S. Supreme Court decision in Gade v. National Solid Waste Management Association,1 there have been several reinterpretations of the Occupational Safety and Health Act’s (OSH Act’s) preemption clause in Section 4(b)4. For example, the relationship between OSHA’s enforcement and inspection authority in relation to the U.S. Coast Guard’s authority over drill rigs when those rigs were essentially stationary workplaces has recently been revisited by the U.S. Supreme Court in 2002.2 These decisions tend to expand the OSH Act jurisdiction,
decision upon ‘‘a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence,’’ and upon an expressly ‘‘individualized assessment of the individual’s present ability to safely perform the essential functions of the job,’’ reached after considering, among other things, the imminence of the risk and the severity of the harm portended.” Echazabal, 122 S. Ct. at 2053 (quoting 29 C.F.R. §1630.2(r) (2001)).
8In the past, legal principles designed to prevent disability-based discrimination in the workplace meant that employment laws would not allow a worker to suffer from a stigma associated with illness. For example, in School System School Bd. of Nassau County v. Arline, the U.S. Supreme Court acknowledged a need to set limits on employer discretion in fact, the notion that an employee was protected from risk to oneself was viewed as a paternalistic euphemism for shielding the disfigured, unemployable disabled from contact with the public.
1Gade v. National Solid Wastes Management Ass’n, 505 U.S. 88, 112 S. Ct. 2374, 120 L. Ed. 2d 73, 15 O.S.H. Cas. (BNA) 1673, 1992 O.S.H. Dec. (CCH) P 29709, 22 Envtl. L. Rep. 21073 (1992); see also §1:95, §1:114.
2Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235, 122 S. Ct. 738, 151 L. Ed. 2d 659, 19 O.S.H. Cas. (BNA) 1721, 2001 O.S.H. Dec. (CCH) P 32515, 2002 A.M.C. 305 (2002); Secretary of Labor, Complainant v. Noble Drilling Services, Inc., and Noble Drilling (U.S.) Inc., Respondent, 19 O.S.H. Cas. (BNA) 1869, 2002 O.S.H. Dec. (CCH) P 32553, 2002 WL 538935 (O.S.H.R.C.A.L.J. 2002), available at http://www.oshrc.gov/decisions/ html_2002/00-0462.html.
insofar as agencies have expressed their desire to regulate but have not precisely undertaken regulation of preventive health and safety matters that overlap with OSHA’s enforcement and inspection role. For this reason, the U.S. Supreme Court’s decision in Echazabal v. Chevron is a bit of a departure from precedent. In that case, the U.S. Supreme Court allowed the Equal Employment Opportunity Commission (EEOC) to provide an affirmative defense even though the agency had not regulated the specific criteria to be used when weighing medical evidence regarding personal risk from work, as discussed by Judge Trott in his dissent from the Ninth Circuit Court of Appeals decision in Echazabal v. Chevron,3 before it reached the U.S. Supreme Court. Although employers can clearly enjoy permissions in the workplace that are not any concern of a governmental agency and therefore do not present a conflict with the OSH Act, it is uncertain whether EEOC will be able to resolve medical disputes regarding the implementation of the Echazabal decision without impinging on OSHA jurisdiction. It is worth noting, however, that a vibrant in-house occupational health compliance program will address the underlying medical issues competently and with fair application of the relevant evidence, regardless which agency will have enforcement oversight for the return to work orders based on an assessment of the employee’s potential risk to oneself or others at the worksite.
1:125. Limits on compensation for beryllium workers: Hyde v. International Paper
The U.S. Supreme Court refused to grant certiorari from an Eleventh Circuit decision, Hyde v. International Paper,1 summarily affirming an unpublished district court decision that a group of workers could not recover under Alabama law for chromosome damage allegedly caused by their exposure to radiation while working in blow tanks at a paper company’s facility. The district court held that, because the workers were not ill, and there was no certainty that they would become ill in the future as a result of the exposure, they could not recover damages for
3As noted by Judge Trott in dissent in Echazabal v. Chevron, “Our law books, both state and federal, overflow with statutes and rules designed by representative governments to protect workers from harm. Long ago we rejected the idea that workers toil at their own peril in the workplace …. In many jurisdictions, it is a crime knowingly to subject workers to life-endangering conditions. California Labor Code S 6402 expressly forbids an employer from putting an employee in harm’s way. In Arizona, an employer who fails to provide a safe workplace commits a felony. Ariz. Rev. Stats. Annot., Labor S 24-403, S 23-418. In effect, we repeal these laws with respect to this appellant, and to other workers in similar situations. So much for OSHA. Now, our laws give less protection to workers known to be in danger than they afford to those who are not. That seems upside down and backwards.” Echazabal v. Chevron USA, Inc., 226 F.3d 1063, 1074 (9th Cir. 2000), rev’d, 536 U.S. 73, 122 S. Ct. 2045, 153 L. Ed. 2d 82, 67 Cal. Comp. Cas. (MB) 781, 13 A.D. Cas. (BNA) 97 (2002). Judge Trott wisely asked in his dissent, ““Did Congress really intend to nullify state and federal workplace safety laws and render them impotent to protect workers in identifiable harms way?…. Because the job most probably will endanger his life. I do not understand how we can claim he can perform the essential functions of the position he seeks when precisely because of his disability, those functions may kill him. To ignore this reality is bizarre.” Echazabal v. Chevron USA, Inc., 226 F.3d 1063, 1073-1074 (9th Cir. 2000), rev’d, 536 U.S. 73, 122 S. Ct. 2045, 153 L. Ed. 2d 82, 67 Cal. Comp. Cas. (MB) 781, 13 A.D. Cas. (BNA) 97 (2002) (Trott, J., dissent).
1Hyde v. Intern. Paper Co., 540 U.S. 819, 124 S. Ct. 102, 157 L. Ed. 2d 37 (2003).
medical monitoring, emotional distress, mental anguish, or loss of enjoyment of life for the fear of developing health problems in the future. Even if workers sustain significant chromosome aberrations as a result of the exposure, the district court did not find recoverable damages for that injury.2 This case does not, however, reach the questions raised by lymphocyte proliferation testing (LPT), which may be a predictor of some asymptomatic immunosuppression that is associated with the presence of beryllium in the lungs. Alabama law has long required a manifest, present injury before a plaintiff may recover in tort. Assuming that the workers did in fact sustain significant chromosome aberrations as a result of the exposure, but, the district court asserted that the plaintiffs have not shown that there are recoverable damages for that injury.3
1:93 Admissibility of OSHA standards in negligence action: Scott v. Matlack
In a carefully researched and detailed opinion, the Colorado Supreme Court, in Scott v. Matlack, Inc.,1 found that OSHA regulations may not be applied but may be borrowed to provide some evidence of a relevant standard of care for negligence in a state court claim under the common law. In Scott, an injured truck driver brought a state common law negligence action against a refinery and the motor carrier to which the driver’s services had been leased. The plaintiffs sued Matlack Trucking, Inc. and Conoco Oil Company, for negligence, negligence per se, and loss of consortium after one plaintiff fell from the top of a tanker while loading hot asphalt for Matlack at Conoco’s Denver facility.2 The plaintiffs sought to use the existence of OSHA regulations as evidence of the standard of care in negligence regarding federal preemption by state law under OSH Act §4(b)(4)3 notwithstanding). A jury found the defendants liable on negligence and loss of consortium claims. Following jury trial, the District Court entered judgment for the injured truck driver against the employer who had leased his services as an independent contractor.4 The defendants, who had employed the injured driver appealed and the Court of Appeals reversed.5 The Colorado Supreme Court, considered two distinct questions:
2Hyde v. International Paper Co., 62 Fed. Appx. 922 (11th Cir. 2003).
3Hyde v. International Paper Co., 62 Fed. Appx. 922 (11th Cir. 2003).
1Scott v. Matlack, Inc., 39 P.3d 1160 (Colo. 2002), as modified, (Feb. 4, 2002).
2Scott v. Matlack, Inc., 39 P.3d 1160, 1163 (Colo. 2002), as modified, (Feb. 4, 2002).
3OSH Act §4(b)(4), 29 U.S.C.A. §653(b)(4).
4When the case reached the Colorado Supreme Court, the Scott court found that though driver was not the direct employee of either refinery or motor carrier, the OSH Act can be used as evidence of standard of care (overruling Auxier v. Auxier, 843 P.2d 93 (Colo. App. 1992) (overruled by, Scott v. Matlack, Inc., 39 P.3d 1160 (Colo. 2002)). The court noted however, that the holding was “limited to a situation such as this case in which Scott was present at Conoco’s facility to perform work under contract. We reserve ruling on whether the OSH Act may be used to protect those injured at a work site when the plaintiff is not employed by the defendant or anyone else employed to perform work at the defendant’s site.” Scott v. Matlack, Inc., 39 P.3d 1160, 1171 (Colo. 2002), as modified, (Feb. 4, 2002).
5Scott v. Matlack, Inc., 1 P.3d 185 (Colo. App. 1999), as modified on denial of reh’g, (June 3,
“(1) whether Canape precludes admission of OSH Act regulations in this negligence case against Matlack and Conoco independent of C.R.C.P. 37 sanctions; and (2) whether, under the procedural circumstances of this case, it was within the trial court’s discretion to permit admission of the confidential OSHA Matlack settlement agreement against Matlack as a discovery sanction.” 6 The court carefully distinguished the difference between borrowing standards from OSHA regulations from applying OSHA standards to the actual circumstances of the case, reviewed and reversed the Court of Appeals’ decision in Scott v. Matlack,7 holding that:
(1) Canape v. Petersen, … does not preclude the admission of Occupational Safety and Health Act evidence in a negligence suit; (2) it is proper for a trial court to admit Occupational Safety and Health Act regulations as evidence of the standard of care in an industry; and (3) under the procedural circumstances of this case, the trial court’s C.R.C.P. 37 sanction admitting a confidential OSHA settlement agreement is not an abuse of discretion.8
193 A. Admissibility of OSH Act Evidence in a Negligence Action
Previously, the Colorado Supreme Court had held that in a much more limited view of the scope of evidence in negligence, that OSH Act regulations do not create a private cause of action and therefore a plaintiff could not establish a negligence per se claim by alleging a defendant violated OSH Act regulations. In Canape v. Petersen,9 the Colorado Supreme court followed a majority of courts that have ruled that a defendant may not be held to a negligence per se standard of care for OSHA regulations. The Scott court stated:
The Canape court and the others that have considered the effect of section 653(b)(4) in the context of negligence per se suits have concluded that to use the OSH Act to establish a negligence per se claim would “affect” or “enlarge” an employer’s duty beyond that of the common law in violation of section 653(b)(4) because the OSH Act would actually create the defendant’s duty. Therefore, [previous decisions had held that] the OSH Act cannot be used as conclusive evidence of the standard of care a defendant owes to a plaintiff. However, Canape did not address whether section 653(b)(4) precludes a plaintiff from using OSH Act regulations in a negligence action as some evidence of a defendant’s negligence.10
1999) and judgment rev’d, 39 P.3d 1160 (Colo. 2002), as modified, (Feb. 4, 2002).
6Scott v. Matlack, Inc., 39 P.3d 1160, 1165-66 (Colo. 2002), as modified, (Feb. 4, 2002).
7Scott v. Matlack, Inc., 1 P.3d 185 (Colo. App. 1999), as modified on denial of reh’g, (June 3, 1999) and judgment rev’d, 39 P.3d 1160 (Colo. 2002), as modified, (Feb. 4, 2002).
8Scott v. Matlack, Inc., 39 P.3d 1160, 1162 (Colo. 2002), as modified, (Feb. 4, 2002) (citation omitted).
9Canape v. Petersen, 897 P.2d 762, 767, 17 O.S.H. Cas. (BNA) 1289, 1995-1997 O.S.H. Dec. (CCH) P 30882 (Colo. 1995).
10“Many jurisdictions that prohibit the use of OSH Act regulations to establish a negligence per se claim permit the use of OSH Act regulations in a negligence case as some evidence of care in the defendant’s industry.” Scott v. Matlack, Inc., 39 P.3d 1160, 1166-1167 (Colo. 2002), as modified, (Feb. 4, 2002)(citing Jones v. Spentonbush-Red Star Co., 155 F.3d 587, 596, 1999 A.M.C. 324 (2d Cir. 1998); Ries v. National R.R. Passenger Corp., 960 F.2d 1156, 1165, 1992 O.S.H. Dec. (CCH) P 29654 (3d Cir. 1992); Rolick v. Collins Pine Co., 975 F.2d 1009, 1015, 36 Fed. R. Evid. Serv. 719, 24 Fed. R. Serv. 3d 582 (3d Cir. 1992); Wendland v. Ridgefield Const.
The court found that though many jurisdictions that prohibit the use of OSH Act regulations to establish a negligence per se claim, they permit the use of OSH Act regulations in a negligence case as some evidence of the standard of care in the defendant’s industry.11 The court therefore held that the so-called Preemption clause” in Section 4(b)(4) of Occupational Safety and Health Act (OSHA), that prohibits use of OSHA as basis of a negligence per se claim, does not preclude the admission of OSHA regulations in a negligence action as some, “non-conclusive, or some, evidence or the industry standard with which a reasonable person in the defendants’ industry should comply.”12
193.B OSHA Regulations and Negligence
In an unusually dense discussion of legal nuances regarding the different types of negligence, the court found that within the employer’s general obligation to provide employment and places of employment that are free from recognized hazards, it is possible to admit OSHA regulations as some evidence of a standard of care and to admit OSHA citations from other cases against the same employer as evidence of the breach of that standard.16 As a result, agreements regarding OSHA citations that the motor carrier had reached with OSHA following a fall at one of carrier’s facilities was admissible, even though the facts were not related to the negligence action against the motor carrier. The court allowed this use of OSH Act requirements as some evidence of a standard of care, due in part to its desire to impose a sanction for carrier’s failure to comply with orders compelling discovery.17
Defendants argued that the Canape opinion and the express limiting language of the OSH Act dictate that the OSH Act cannot be used as evidence of negligence. They also claimed that language of OSH Act section 653(b)(4) conclusively prohibits trial courts from admitting
Services, Inc., 184 Conn. 173, 439 A.2d 954, 957-58, 10 O.S.H. Cas. (BNA) 1727, 1981 O.S.H. Dec. (CCH) P 25434 (1981); Toll Bros., Inc. v. Considine, 706 A.2d 493, 498, 1998 O.S.H. Dec. (CCH) P 31529 (Del. 1998); Wiersgalla v. Garrett, 486 N.W.2d 290, 293 (Iowa 1992).
11Scott v. Matlack, Inc., 39 P.3d 1160, 1167 (Colo. 2002), as modified, (Feb. 4, 2002) (citing Jones v. Spentonbush-Red Star Co., 155 F.3d 587, 596, 1999 A.M.C. 324 (2d Cir. 1998); Ries v. National R.R. Passenger Corp., 960 F.2d 1156, 1165, 1992 O.S.H. Dec. (CCH) P 29654 (3d Cir. 1992); Rolick v. Collins Pine Co., 975 F.2d 1009, 1015, 36 Fed. R. Evid. Serv. 719, 24 Fed. R. Serv. 3d 582 (3d Cir. 1992); Wendland v. Ridgefield Const. Services, Inc., 184 Conn. 173, 439 A.2d 954, 957-58, 10 O.S.H. Cas. (BNA) 1727, 1981 O.S.H. Dec. (CCH) P 25434 (1981); Toll Bros., Inc. v. Considine, 706 A.2d 493, 498, 1998 O.S.H. Dec. (CCH) P 31529 (Del. 1998); Wiersgalla v. Garrett, 486 N.W.2d 290, 293 (Iowa 1992).
12Scott v. Matlack, Inc., 39 P.3d 1160, 1167 (Colo. 2002), as modified, (Feb. 4, 2002).
16
Scott v. Matlack, Inc., 39 P.3d 1160, 1167 (Colo. 2002), as modified, (Feb. 4, 2002).
17
Scott v. Matlack, Inc., 39 P.3d 1160 (Colo. 2002), as modified, (Feb. 4, 2002) (discussing Occupational Safety and Health Act of 1970, §§2 et seq., 29 U.S.C.A. §§651 et seq.; Rules Civ. Proc., Rules 26(c), 37).
OSHA-related evidence in a civil case for any reason. Upon review of authorities and case law from other jurisdictions, the court was not persuaded. Setting aside previous limits that precluded OSHA regulations as evidence in negligence and negligence per se in Canape it therefore held that section 653(b)(4) and the Canape decision only preclude the use of the OSH Act as the basis of a negligence per se case and do not preclude the admission of OSH Act regulations in a negligence action as some, non-conclusive, evidence of the standard of care in the relevant industry.
Regarding the question of whether using, or borrowing, regulations or statutes as some evidence of the standard of care in an industry is permissible, the court found that such use has been permitted. The Court of Appeals reasoned that “safety codes and standards are admissible when offered in support of expert testimony and when introduced as objective safety standards generally recognized and accepted as such in the type of industry involved.”18 Since OSH Act regulation 1910.23(c) requires that walkways more than four feet off the ground must have a protective railing in place, the court found this regulation relevant as a tool for a jury that must decide whether the defendants complied with the industry standard regarding fall protection. Specifically, OSH Act regulation 1910.23(c) describes a safety design that could apply to the tops of tanker trucks, providing:
Protection of open-sided floors, platforms, and runways. Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing … on all open sides except where there is entrance to a ramp, stairway, or fixed ladder.19
If viewed simply as safety standards, then the OSH Act regulations meet the criteria for admissibility as evidence of a standard of care in the relevant industry. The court resolved conflicting evidence at trial regarding whether this and other OSH Act regulations that apply to the tops of tanker trucks should be discussed in court, in favor of the injured employee.
Further, the OSH Act regulations were offered in support of expert testimony. Expert witnesses testified extensively about OSH Act regulations with regard to, inter alia, the tops of tankers, walkways, Conoco’s facility, and fall protection. The court also understood that the OSH Act is a generally accepted statutory scheme that reflects current ideas in the field of safety and health issues related to employment.20 As an example, for each congressional session, the OSH Act requires that:
[T]he Secretary and the Secretary of Health and Human Services shall … submit to the President … a report … [which] shall include information regarding occupational safety and health standards, and criteria for such standards, developed during the preceding year; … an analysis of major occupational diseases; evaluation of available control and measurement technology for hazards for which standards or criteria have been
18
Scott v. Matlack, Inc., 39 P.3d 1160, 1167 (Colo. 2002), as modified, (Feb. 4, 2002).
19
29 C.F.R. §1910.23(c) & (c)(1) (2001).
20
29 U.S.C.A §675 (2000); Wal-Mart Stores, Inc. v. Seale, 904 S.W.2d 718, 720, 1995-1997 O.S.H. Dec. (CCH) P 30868 (Tex. App. San Antonio 1995) (noting that OSH Act standards are “the cumulative wisdom of the industry on what is safe and what is unsafe”).
developed during the preceding year….21
The defendants unsuccessfully argued that this section restricts OSH Act regulations from being used as evidence, for any reason, in a civil suit. Although they argued that even borrowing the OSH Act as some evidence of industry standards affects and enlarges an employer’s duty, the court also saw the refusal to admit such evidence as unduly diminishing the employee’s common law cause of action, in violation of Section 4(b)4.
1:94. Criminal penalties for occupational deaths: U.S. v. MYR Group, Inc
For the first time in several years, the federal government indicted a parent corporation and its wholly-owned subsidiary for willfully violating Occupational Safety and Health Act in connection with deaths of two of subsidiary’s employees.1 The indictment had alleged that MYR (the parent), “knowingly and willfully violated two OSHA regulations relating to safety training of employees in the electric power industry while it was responsible for safety training of employees of L.E. Myers” (its subsidiary).2 It was asserted that the violations caused the deaths of two L.E. Myers employees. The Magistrate in the lower court found that while “MYR was technically an employer as defined by the Act, it was not the employer of the deceased workers and could therefore not be liable for their deaths.” The court further found that MYR did not fall into the exceptions to the rule that an employer be the employer to establish criminal liability, the multi-employer worksite and joint employer exceptions.”3 The district court affirmed the Magistrate’s decision.
1:95. Limits on OSHRC jurisdiction: Federal Rules of Civil Procedure requires relief due to excusable neglect: George Harms Construction Co., Inc. v. Chao
In George Harms Construction Co., Inc. v. Chao,1 a construction company sufficiently showed that its untimely filing of notice of contest to citations issued by Occupational Safety and
21
29 U.S.C.A. §675 (2000).
1U.S. v. Myr Group, Inc., 274 F. Supp. 2d 945, 20 O.S.H. Cas. (BNA) 1233 (N.D. Ill. 2003), aff’d, 361 F.3d 364, 20 O.S.H. Cas. (BNA) 1614, 2002 O.S.H. Dec. (CCH) P 32706 (7th Cir. 2004).
2U.S. v. Myr Group, Inc., 274 F. Supp. 2d 945, 947, 20 O.S.H. Cas. (BNA) 1233 (N.D. Ill. 2003), aff’d, 361 F.3d 364, 20 O.S.H. Cas. (BNA) 1614, 2002 O.S.H. Dec. (CCH) P 32706 (7th Cir. 2004). Occupational Safety and Health Act §666(e).
3
U.S. v. Myr Group, Inc., 274 F. Supp. 2d 945, 947, 20 O.S.H. Cas. (BNA) 1233 (N.D. Ill. 2003), aff’d, 361 F.3d 364, 20 O.S.H. Cas. (BNA) 1614, 2002 O.S.H. Dec. (CCH) P 32706 (7th Cir. 2004).
1
George Harms Const. Co., Inc. v. Chao, 371 F.3d 156, 20 O.S.H. Cas. (BNA) 1745, 58 Fed. R. Serv. 3d 682, 58 Fed. R. Serv. 3d 1145 (3d Cir. 2004).
Health Administration (OSHA) was due to “excusable neglect,” due to loss of citations by its own clerk, and, consequently, the company was entitled to relief from the final order of Commission, since factors of good faith, prejudice, efficient judicial administration, and control all weighed in favor of company; the loss of citations in otherwise reliable mail-handling process was unforeseeable human error beyond company’s reasonable control, and there was lack of prejudice to interests of efficient judicial administration by granting relief.2
A statute preventing any court or agency from reviewing final orders of Occupational Safety and Health Review Commission (OSHRC) is subject to federal rule of civil procedure which provided means for relief from final judgment, order, or proceeding for mistake, inadvertence, surprise, or excusable neglect. The Court found that the statute which prevented any court or agency from reviewing final orders of Occupational Safety and Health Review Commission (OSHRC) was subject to federal rule of civil procedure which provided means for relief from final judgment, order, or proceeding for mistake, inadvertence, surprise, or excusable neglect; the Court of Appeals was not required to give absolute deference to Secretary of Labor’s interpretation of enforcement procedures statute; and the construction company sufficiently showed “excusable neglect” for its untimely filing of notice of contest.3
By contrast, authority of OSHRC was reaffirmed in Fabi Construction Co., Inc. v. Secretary of Labor.1 There, an errant employer petitioned for review of decision of the Occupational Safety and Health Review Commission (OSHRC), which had determined that the employer violated Occupational Safety and Health Act (OSH Act) in connection with the death of employee who fell while demolishing a “knock-out” panel above an elevator shaft. The Court of Appeals in Fabi found that: the citation for failing to initiate and maintain programs necessary to comply with OSHA construction regulations was supported by sufficient evidence; that OSHRC’s individualized “reasonably prudent employer”2 standard would be upheld; that OSHRC’s interpretation of the regulation as requiring a training program addressing fall hazards specific to each task employees performed would be upheld; the OSHRC reasonably determined that the regulation prohibited work on a surface made unsound solely as result of demolition; the ALJ’s decision to credit compliance officer’s testimony that he saw workers near unguarded elevator shaft was not unreasonable; the ALJ could credibly give great weight to an OSHA Compliance Officer’s testimony that he observed partially unguarded shaftway being used for access by ladders; the ALJ reasonably rejected employer’s proffered defense to charge that it
2George Harms Const. Co., Inc. v. Chao, 371 F.3d 156, 158, 20 O.S.H. Cas. (BNA) 1745, 58 Fed. R. Serv. 3d 682, 58 Fed. R. Serv. 3d 1145 (3d Cir. 2004). See also 29 U.S.C.A. §§659(a), 661(g); Fed. Rules Civ. Proc. R. 60(b)(1).
3George Harms Const. Co., Inc. v. Chao, 371 F.3d 156, 20 O.S.H. Cas. (BNA) 1745, 58 Fed. R. Serv. 3d 682, 58 Fed. R. Serv. 3d 1145 (3d Cir. 2004).
1Fabi Const. Co., Inc. v. Secretary of Labor, 370 F.3d 29, 20 O.S.H. Cas. (BNA) 1713 (D.C. Cir. 2004).
2Fabi Const. Co., Inc. v. Secretary of Labor, 370 F.3d 29, 34, 20 O.S.H. Cas. (BNA) 1713 (D.C. Cir. 2004).
violated regulation governing stairways; and that the compliance officer’s testimony provided substantial evidentiary support for ALJ’s finding that employees were exposed to condition cited in regulation governing covering of holes in floors.3
1:96. Appellate court cases– Attempts to regulate large categories of hazardous substances through a single rulemaking: AFL-CIO v. OSHA
An important limit upon the new techniques of OSHA rulemaking was found by the Court of Appeals on July 7, 1992, when it was determined that despite the demands to keep up with ever-changing technology, the agency was bound by proper administrative procedures to continue its rulemaking along a path that resembles the substance-by-substance model exemplified by the regulatory history discussed above. The United States Court of Appeals for the Eleventh Circuit vacated OSHA’s 1989 Air Contaminants Standard in the case of AFL-CIO v. OSHA.1 The standard represented OSHA’s attempt to streamline existing rulemaking procedures by setting Permissible Exposure Limits (PELs)2 for 428 substances in a single rulemaking.3 The court held that OSHA did not meet the threshold requirement that the agency demonstrate the new standard’s ability to eliminate or reduce the significant risk to the extent feasible. The court found that OSHA had not offered substantial evidence to support the concept that all 428 substances were sufficiently related to be regulated under one standard. Rather, the court regarded the Air Contaminants Standard as an amalgamation of 428 exposure limits for unrelated toxic substances.4
3Fabi Const. Co., Inc. v. Secretary of Labor, 370 F.3d 29, 20 O.S.H. Cas. (BNA) 1713 (D.C. Cir. 2004).
1American Federation of Labor and Congress of Indus. Organizations v. Occupational Safety and Health Admin., U.S. Dept. of Labor, 965 F.2d 962, 15 O.S.H. Cas. (BNA) 1729, 1992 O.S.H. Dec. (CCH) P 29735, 22 Envtl. L. Rep. 21229 (11th Cir. 1992).
2PELs, or Permissible Exposure Limits, reflect the maximum amount of a contaminant in the air to which workers may be exposed over a given time period. OSHA generally uses three types of PELs. The first are time-weighted averages (TWAs), which are average exposure limits for an eight-hour work shift of a 40-hour week. The second are short-term exposure limits (STELs) which establish limits for a 15-minute exposure. Ceiling limits set never-to-be-exceeded maximum exposure levels.
3 OSHA’s Air Contaminants (or ““PEL Project””) standard was based primarily on federal standards which were adopted from the 1968 recommendations of the American Conference of Governmental Industrial Hygienists (ACGIH). The ACGIH is a private organization consisting of professional personnel who work in governmental agencies and educational institutions engaged in occupational safety and health programs. The ACGIH updates its recommendations (called ““Threshold Limit Values”” or ““TLVs””) yearly.
4
As in past cases regarding OSHA standard setting, many industry groups, the AFL-CIO (American Federation of Labor-Congress of Industrial Organizations), and other parties filed challenges to the final standards. These challenges were consolidated and transferred to the
OSHA defended its failure to make specific findings for each substance by citing its authority to set priorities, and the discretion permitted the agency in making policy decisions.5
1:97. Ethical concerns for lawyers as in-house OSHA compliance counsel
Ethical issues and professional responsibility for lawyers and ethics officers constitutes another new area of compliance issues, necessitating an active, effective, and well-documented program that was addressed in the Practicing Law Institute. The issues surrounding self-evaluative privilege,1 and its interface with the duty to represent the organization, but not employees who may also be targets of federal or state investigations during internal investigations. These emerging but complex questions, such as releases signed by employees prior to an investigatory interview, were juxtaposed against ABA Model Rules of Professional Conduct and Model Code of Professional Responsibility: (1) ABA Model Rule 1.6 Confidentiality of Information;2 (2) ABA Model Rule 1.13 Organization as Client;3 and (3) ABA
United States Court of Appeals for the Eleventh Circuit. Issues included: OSHA’s use of generic findings; regulation of so many substances in one rulemaking, and the short time provided for comment by interested parties. The union challenged the standards, which it claimed were underprotective, and OSHA’s decision to limit the scope of the rulemaking, thereby to ignoring other air contaminant substances in need of regulation and standards for exposure monitoring and medical surveillance. Also, it objected to the 4-year compliance lead time for the standards, given OSHA’s view that the standards could be met using available technology. The court found that nothing in OSH Act prevents OSHA from addressing multiple substances in a single rulemaking, but it was troubled by OSHA’s inability to support its findings with adequate evidence substantiating the regulation of each substance. The court reasoned that the PEL for each substance must be able to stand independently; OSHA may not ignore the requirements of the OSH Act by using such multi-substance rulemaking as an excuse for promulgating inadequately supported standards.
5OSHA bears the burden of proving by substantial evidence that such a risk exists and that the proposed standard is necessary. OSHA need not calculate the probability of harm or support its finding that a significant risk exists with scientific certainty. However, OSHA must provide an estimate of the actual risk associated with a particular toxic substance with an explanation of the importance of the risk and how it will be avoided by following the standard. See Ilise Feitshans, Law and Regulation of Benzene, 82 Environmental Health Perspectives 299307 (1989).
1See Murphy & Feitshans, “Protecting the Compliance Audit,” in Murphy & Wallance, Corporate Compliance, How To Be a Good Citizen Corporation Through Self-Policing (Practicing Law Institute N.Y. 1996).
2The ABA Model Rule 1.6 Confidentiality of Information states:
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b):
(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary
(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or
(2) to establish the claim or defense on behalf of a lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyers’ representation of the client.
Model Rule 4.3 Dealing With Unrepresented Persons4 as protected by the plain language of the ABA Code.5 It is clear that in-house counsel faces two important conflicts while striving to conduct a vital and credible in-house investigation:
• how to satisfy the professional responsibility to make co-workers and other employees understand their limited rights, which may conflict with the rights of the employer/company while conducting investigations; and
• how to encourage them to cooperate with investigations, despite a potential risk to the employees’ own interests, once the conflict inherent in the situation is fully understood.
3ABA Model Rule 1.13 Organization as Client, which states:
(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents,
(b) If a lawyer for an organization knows that an officer, employee, or other person associated with the organization is engaged in action, intends to act, or refuses to act in a manner related to the representation that is a violation of a legal obligation to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer’s representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant considerations. Any measure taken shall be designed to minimize disruption to the persons outside the organization. Such measures may include among others:
(1) asking reconsideration of the matter;
(2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authorities in the organization; and
(3) referring the matter to higher authority in the organization, including if warranted by the seriousness of the matter, referral to the highest authority that can act on behalf of the organization as determined by applicable law.
(c) If despite the lawyer’s efforts in accordance with paragraph B the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, it is clearly a violation of law and is likely to result in substantial injury to the organization, the lawyer may resign in accordance with Rule 1.16.
(d) In dealing with an organization’s directors, offices, employees, members, shareholders, or other constituents, a lawyer shall explain the identity of the client when it is apparent that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.
(e) a lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of Rule 1.7. If the organization’s consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.
4These rules must also be viewed in the context of potential overlap with other areas of the law and then analyzed in tandem with the ethical obligations of other in-house occupational health professionals, such as medical staff and nonlegal compliance personnel.
5ABA Model Rule 4.3 Dealing With Unrepresented Persons states: ““In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterest. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.””
1:97A. The role of medical personnel in OSHA compliance programs
Although there is always some level of rivalry between lawyers and doctors, compliance with occupational safety and health laws is one area where they need to work together and rely on each other’s expertise. In some situations, resolving these conflicts may mean the difference between continuing or ending a professional’s career or facing civil or criminal penalties or fines. It is unclear, too, whether there can be meaningful participation in internal investigations without compelling certain employees to incriminate themselves or otherwise forsake their rights to representation under certain criminal statutes that may have triggered the in-house investigation, as in the case of state and federal criminal penalties under the OSH Act. In essence, the existence of these major conferences just weeks apart (including conferences by the Ethics Board and the Ethics Officers Association) underscores that the magnitude of compliance issues is gaining more than currency; the scope of the field is growing to embrace new fields of law, such as health care and professional responsibility or legal ethics, which had been unexplored before. Such programs will comply with ergonomics requirements or the complexities of reproductive health hazards in the workplace. It is predictable, nonetheless, that there will be a new area mandating compliance programs. The task ahead for compliance professionals is to be prepared to meet those new needs.
Purposes in ethical standards range from a sense of self definition that brings together many people who work in the same field, to hiring and networking and to prevent antitrust violations in the realm of commerce between association members. In the best situation, a code of ethics within a profession also serves to provide a minimum articulated notion of a standard of care, even though it does not have the force of law. A professional code of ethics may be accorded great weight in a court of law when people are taking evidence regarding how a professional should have behaved or whether a particular practice should have been done. Even within professions, however, practice and best practices may vary according to temporal or regional standards and customs within each profession and even within subsets of each profession. Yet they involve “moral” issues and core personal values, not often articulated in legal standards, which are intended to be the product of due process, reflecting the will of many rather than one person’s will.1
1:98. Comparison of Canadian and ACOEM ethical codes for occupational physicians
Contemporary ethical standards, such as the Canadian Medical Association Code of Ethics, are consistent with the American College of Occupational and Environmental Medicine’s (ACOEM’s) United States based standards. Canada’s Code states that, “The occupational physician has a responsibility to maintain a high standard of professional conduct in his (sic) work,” thus encouraging professional growth and development for male and presumably also female members of the field. Yet, the Canadian Code also emphasizes a direct contact between physician and employee, stating that, “The occupational physician should advise the employee of the findings following the physical assessment.” This is more direct than issuing reports and
1See Feitshans, Applied Occupational and Environmental Hygiene: “Potential Liability of Industrial Hygienists Under U.S. Law Part I: The Dawning of the Age of Malpractice Liability?,” Vol 5 No. 10 (1990); Applied Occupational and Environmental Hygiene: “Potential Liability of Industrial Hygienists Under U.S. Law Part II: Prescription for Reducing Potential Liability,” Winter 1990.
offering a protection for confidentiality. For pregnant workers in Canada, this is an important trigger for the right to “Protective Re-assignment” as the same right to seniority, promotion and rate of pay that is an unparalleled legal concept in the United States.
This right is an excellent example of legal compromise. Canadian statutory law requires that in certain industries such as pharmaceuticals that involve cytogenetics or exposure to mutagens or teratogens, women must be re-assigned to other duties, without specifically treating pregnant workers as disabled and while protecting their economic rights under law. The law’s broad framework also allows the same protective language to be employed in other industries if the pregnant worker, her physician, the occupational physician or the employer so desires, without violating civil rights laws. Nonetheless, the notion that information is due directly to the employee, and in turn can be applied to immediately implement protections for pregnant workers, is significant. This means that the maze that exists in the United States regarding insurance information and employer’s proprietary rights to medical records and other patient information is simplified under the Canadian view of ethical obligations and legal standards.
Unlike the ACOEM’s Code of Ethics, the Canadian Medical Association plainly urges occupational physicians to push the envelope regarding new methods and new technologies by requiring members to “keep up to date on subjects relating to the specialty of occupational medicine” and to “seek assistance from specialists in appropriate fields.” This requirement, combined with the ethical obligation to treat employees without a legal distinction regarding who pays the medical bills and statutory requirements for protective re-assignment without loss of seniority or pay, gives professional discretion to occupational physicians. Taken together with legal requirements, this language is particularly important for potential parents and pregnant workers who are exposed to a variety of stressors whose potential harm to male or female reproductive capacity may not have been recognized or understood in previous centuries. Thus the Canadian Code embraces the new developments in the state of the art, which can ultimately influence the accepted standard of practice elsewhere in the working world.
Traditionalists have long taken the position that a fetus or injured minor cannot contract away personal rights under law and therefore cannot be considered an employee and thus cannot be a patient for the purposes of occupational medicine. This position has been bolstered by the legal reality that there are no legal rights for the unborn. Yet, if one considers the paramount obligation of all physicians to prevent harm, and addresses first the needs of any pregnant worker, it is likely that one can artfully avoid this legal quagmire of false differences, using a maternally-driven model for occupational health protection. Sensible approaches to prevention and sound industrial hygiene strategies with modern technologies remain useful, if they work to minimize risks without economic disruption to pregnant workers.
Several working assumptions are important for occupational physicians and health professionals who are responsible for pregnant workers. First, many women need to work to provide economic security, including health insurance, for their unborn child, themselves and other members of their family. Second, housework or other unpaid activities at home or in volunteer roles at charitable organizations are not risk free. No one can legally or practically guarantee that women, who absent themselves from the workforce during pregnancy, will enjoy a safer or healthier pregnancy, especially if they have medical risks that can be reduced by functioning in the social setting of a workforce with comparably easy access to medical care and health facilities. Conversely, although inadequately explored in the existing literature, there may be some very useful health benefits to working during pregnancy, such as camaraderie, exchange
of information among pregnant workers and other parents, and the ability of co-workers to get help in the event of a medical emergency. The social needs embedded in the rela tionship between workplace health and the survival of the civilization have been codified in human rights values or norms enumerated in the plain meaning of key international human rights instruments and multinational agreements, as well as some national laws.1
Unfortunately, the law of reproductive health has become so bogged down in the quagmire of rhetoric surrounding reproductive “choice” regarding the autonomous decision whether or not to have an abortion, that few if any laws specifically address, much less support, the needs of any mother to have health care and adequate access to social support mechanisms or nutrition, if she “chooses” not to have an abortion. Although the law fancifully skirts around the issue of rights and health of the unborn in the workplace and in several other situations, there is virtually no legal doctrine to assist future mothers in the time frame between conception and birth or natural end of pregnancy, other than the laws that support termination through abortion. This problem is exemplified by U.S. Supreme Court case law that correctly struck down fetal protection policies as sex-based discrimination, but that did so without suggesting or offering criteria for risk assessment.
To be effective, programs that address reproductive health issues at work therefore must focus on pragmatic daily health concerns. This requires rejecting the false distinction between the jurisprudential basis for right to life claims against abortion that do not reach issues of health care during the natural term of pregnancy, in order to address pragmatic realities of post-conception choices about medical care. Exposure to toxins in the workplace, environmental and occupational exposures that remain beyond parental control, and society’s need for healthy offspring may soon require legislatures and courts to create post-conception reproductive health law. If so, occupational physicians and other members of the occupational health community will have a clear obligation, under Point 6 of the ACOEM Code of Ethics, to pro-actively ensure that a broad based definition of occupational reproductive health and occupational injury illness or death is crafted, embracing many heretofore excluded populations so that protection will be even-handed and protect also the interests of civilization. The walls of the false dichotomy between mother and child must crumble and disappear, in order to adequately confront these ancient and unresolved conundrums.
1:99. Ethical obligations of occupational physicians to protect pregnant workers
Two important principles have been falsely painted as at odds with each other, as they traverse cultures, geographic boundaries of nations and civilizations through time: women need to work, to nurture and support their families, and babies need a healthy environment in which to gestate, develop and thrive.1 Yet, some policymakers erroneously overlook the inescapable reality that risk and danger attend pregnant women anywhere they go. Those policymakers
1See : Definition of “health” in the World Health Organization Constitution. W.H.O. Const.
See U.N. Charter; Universal Declaration of Human Rights (UDHR); The Cairo Declaration on Population; The International Covenant on the Elimination of Discrimination Against Women; the International Covenant on Economic, Cultural and Social Rights.
See §1:182.
1See Ilise L. Feitshans, Protecting Posterity: The Occupational Physician’s Ethical and Legal Obligations to Pregnant Workers, State of the Art Reviews (STAR) (2002).
incorrectly pretend that women who work at home or in charitable volunteer services without a salary are somehow different from paid pregnant workers, even though they too may lift heavy objects, have exposure to illness and disease during day care of young children, require medical care, face dangers from toxins in ordinary household tasks such as cleaning and laundering, and confront potentially lethal or debilitating dangers while driving young children on family errands. As a result, a false dichotomy in policymaking artificially paints mothers who engage in paying work as in some peculiar conflict with the fetus even when their work is designed to provide the family with economic support and, more importantly, neither mother nor unborn child would necessarily enjoy a safer, more protected environment at home. Thus, the law is mystified and unclear regarding the rights and obligations of pregnant workers. The law is also uncharacteristically silent regarding the maternal rights to protection at work or at home, from the time of conception to birth of a child.
This dilemma places occupational physicians and health care workers who are responsible for pregnant patients in an awkward position, often unable to determine whether information should be disclosed and if so, unclear about the professional obligation to follow-up care for pregnant workers who continue their jobs. Therefore ethical policies and laws governing the care of pregnant workers need to focus on the maternal needs beyond the rhetoric, by listening to the patient. This means more than simply implementing kinder, gentler paternalistic mores regarding pregnant workers. A maternalistic view ethically addresses the need for information about risks long before conception, taking a close candid look at risks and assets in the life of each potential parent, and then relating that information back to the workplace.
Each occupational health professional has an ethical imperative to candidly discuss these issues with pregnant workers, sometimes even before a pregnancy has been planned. Such a shift in the ethical occupational health professional’s vision from the micro-management of technical features of occupational health issues to turning our attention instead to the broader vista of preserving for posterity the work and health of our civilization can enhance the effectiveness of existing in-house occupational health compliance policies and thereby better protect reproductive health in the workplace. The words of professional obligation, simplistically articulated in the American College of Occupational and Environmental Medicine (ACOEM) Code of Ethics are far more complex to apply than they sound. Although it is not the act of a legislature, the ACOEM Code of Ethics provides guidance as a standard of care in the occupational health professions. As in the case of many other codes of ethics, the ACOEM code fills the void when laws are unclear or simply don’t work to answer unresolved daily issues. Several statutes apply to health and working conditions in the United States. For the purposes of understanding how the rubber meets the road for implementation of health protections to pregnant workers, however, the two most important federal laws are: Section 5(a)(1) “General Duties” of employers under the Occupational Safety and Health Act of 1970 (OSH Act) and the civil rights legislation under the Americans With Disabilities Act (ADA). This new area of potential personal liability for occupational health professionals is not rooted in the common law of negligence or malpractice, but in ADA’s clear statutory mandate to prevent acts of discrimination against the disabled. And, consistent with the civil rights legislation upon whose success ADA is modeled, any individual can be held liable for acts of discrimination. Further, determination of responsibility for discrimination under law looks to the practical adverse effects of an act of discrimination, without regard to the actor’s possible good intentions.
Curiously, however, pregnancy is not considered to be a disability within the plain meaning of the terms of ADA. This is confusing for two important legal reasons. First,
pregnancy can be very disabling and even the healthiest woman can become high risk for unanticipated harms during pregnancy; even so, she and her unborn child are not legally accorded the protections consistent with members of the general population who have experienced other forms of disability. This cluster of impairments is not directly protected by the ADA. Second, according to the U.S. Supreme Court in Bragdon v. Abbott,2 the ability to reproduce, having a healthy child, is considered a “major life activity” whose impairment can be protected by the ADA. Thus the current law in the United States provides the anomalous situation that women who cannot have children are potentially protected as disabled in the workplace, while pregnant workers do not enjoy special rights or protections under United States law. For women who confront reproductive health hazards in the workplace, especially pregnant workers, another layer of analysis is required in order to align the pragmatic resolution of difficult health rights questions with the existing interpretations of the law. This can be achieved without extending the rights to the unborn, by simply extending the autonomous rights that already exist under law for potential parents and pregnant women. This will take a re-adjustment of old attitudes. Those old attitudes unrealistically limit the realm of occupational health protections to a narrow segment of the working population, presently treated as a box within several other boxes of occupational health care and therefore limited in scope to a small, unrepresentative population, who enjoy precious few limited protections for reproductive health at work. In-house corporate compliance programs can go beyond the inadequacies of existing laws, however, by offering reasonable accommodations to pregnant workers as if they were protected by ADA. This approach, focused on the health and well-being of the pregnant worker has the additional benefit of resolving ethical dilemmas despite a void in the current law.
A maternalistic view ethically addresses the need for information about risks long before conception, taking a close and candid look at the risks and assets in the life of each potential parent, and then relating that information back to the workplace. Part of this expanded definition of occupational health would place the field at the forefront of protections for healthy children; relying on practical information and ethical norms where the law is needed, but does not yet go. Therefore ethical policies and laws governing the care of pregnant workers need to focus on the maternal needs beyond the rhetoric, by listening to the patient. This means more than simply implementing kinder and gentler paternalistic mores regarding pregnant workers.
1:100. Overlapping jurisdiction with other federal laws and agencies– Health Insurance Portability & Accountability Act (HIPAA)
In 1996, the U.S. Congress recognized the need to bring together different aspects of existing health insurance coverage under law and passed the Health Insurance Portability and Accountability Act (HIPAA).1 The famous goal of HIPAA is to require that employers insure
2Bragdon v. Abbott, 524 U.S. 624, 118 S. Ct. 2196, 141 L. Ed. 2d 540, 8 A.D. Cas. (BNA) 239 (1998).
1HIPAA has strong prohibitions on health care fraud and abuse, with criminal as well as civil penalties for offenders, including organizations. In the period from 1997-2000 the OIG reported overall savings of $31.0 billion based on effective oversight of compliance with HIPAA and related laws. This included $226 million in audit disallowances, $2.1 billion in investigative receivables, and $28.7 billion in savings from implemented legislative or regulatory recommendations and actions to put funds to better use. Improper payments in Medicare fee-for-service totaled an estimated $13.5 billion, or about 8% of the $169.5 billion in fee-for-service
employees through their existing benefits plans without regard to pre-existing conditions.
“Pre-existing conditions” are defined broadly under the law to include but not be limited to: pregnancy; genetic diseases or conditions; prior injuries; some chemical dependencies for which there is on-going rehabilitation and some types of mental illness. Significantly, there are stiff criminal penalties for violations of HIPAA and there has been extensive U.S. Department of Justice activity around this aspect of HIPAA’s Health Care Fraud and Abuse prevention provisions, which are designed to recapture the estimated billions of dollars per year that are lost to the federal government through fraudulent health care claims. The result has been extensive resources for enforcement and oversight of all aspects of HIPAA compliance. All workers and their dependents must be offered health insurance, without regard to the cause of their illness–whether it was occupationally related or occurred at birth or “off-the-job” or in a variety of other circumstances. By implication, HIPAA requires that people who are insured must have services for occupational injuries even if those injuries occurred through service to a prior employer. Taken together with the ADA, which prohibits discrimination in employment through pre-screening or the use of medical conditions of workers in employment, there are no excuses regarding the hiring and insurance for people who can do the job, even if they have a history of occupational injury or a propensity for some specific illness in the future.
There is such a broad definition of covered entity in the statute itself and in the regulations that the proper question is really, “who is not covered.” The exceptions are few, and the circumstances that could bring any provider acting as an independent contractor within the tentacles of the long arm of HIPAA regulations are many, as demonstrated below. Regulations that were published in August 2002 made clear that the Department of Health and Human Services (USDHHS) intended to remain consistent with Congress’s original intent to cast a very broad net of insurance protection. Consistent with far-reaching Congressional intent, the concomitant regulations have a wide scope of application. According to the preamble of the published final regulations, the definition for covered entity is:
[as] … described in section 1172(a)(1): health plans, health care clearinghouses, and health care providers who transmit any health information in electronic form in connection with a transaction referred to in section 1173(a)(1) of the Act (a “standard transaction”).2
Significantly, the DHHS underscored the far reach of this definition, into the workings of auxiliary non-medical subsidiaries, including billing services that do not engage in medical care. The administrative rationale for its rules state:
A provider could not circumvent these requirements by assigning the task to its business associate, since the
payments processed in fiscal year 1999. This represented a reduction over the last four fiscal years of 42% from FY 1996, from a midpoint of $23.2 billion (14%) in 1996, to $13.5 billion (8%) in FY 1999–a drop of $9.7 billion. HIPAA also requires agencies in the federal government to uncover fraudulent activities and to implement programs to prevent them. With the publication of eight compliance guidance documents covering hospitals, clinical laboratories, home health agencies, third-party billing companies, durable medical equipment, hospices, Medicare +, there were 1,085 convictions of individuals or entities that engaged in “crimes against departmental programs.” in one year. Testimony concerning this data can be found at the OIG Web site at http://www.hhs.gov/oig/testimony.
2Standards for Privacy of Individually Identifiable Health Information; Final Rule, 65 Fed. Reg. 82,462, 82,476-77 (Dec. 28, 2000).
business associate would be considered to be acting on behalf of the provider.3
By definition, health care operations include; activities such as quality assurance, peer review, training, and business planning activities. These definitions embrace a wide variety of independent contractors and equipment as well as actual hospital staff, doctors, and insurance carriers themselves. Thus, under HIPAA regulations, the covered entity and a host of affiliated, indirect service units are required to implement access controls for all protected health information (“PHI”). Although the scope and nature of access controls remains to be defined in a proposed set of regulations, a good faith effort to ensure PHI security is able to prove its sensitivity limiting the number of staff who have access to health care information and also to de-identify information. Methods for securing access controls include but are not limited to encryption, context-based access, role-based access, or user-based access; audit control mechanisms, data authentication, and entity authentication. It is fundamental to the security system also, that PHI includes non-specific information beyond the social security number, or address, to include a host of personal information that is not precisely medical in its nature but could be used by a third party to figure out which patient has a particular diagnosis.
HIPAA therefore makes essential the place for an effective OSHA compliance program, because OSH Act compliance to reduce or to prevent occupational health hazards of all kinds inevitably reduces the demand for health services (thereby allowing the employer to become part of a less expensive risk pool) and both HIPAA and the ADA require that such people be hired and insured by the employer’s program. HIPAA specifically requires insurers to provide on-going health insurance to previously insured individuals without regard to “pre-existing conditions.” Pregnancy and genetic conditions are expressly included in the list of situations that cannot be the legitimate reason for exclusion from a policy, despite the expense and high-risk among these populations2 . HIPAA’s1 guarantee of an individual’s ability to obtain and retain health insurance is reasonably straightforward. HIPAA specifically requires health insurers to provide ongoing health insurance to previously insured individuals without regard to “pre-existing conditions.”2
3Standards for Privacy of Individually Identifiable Health Information; Final Rule, 65 Fed. Reg. 82,462, 82,477 (Dec. 28, 2000).
2See Health Insurance Portability and Accountability Act, Pub. L. No. 104-191, 264, 110 Stat. 1936 (1996) (codified as amended at 42 U.S.C.A. §1320d-2). See Protecting Our Medical Information, Rights, Responsibilities and Risks, Hearings Before the Senate Comm. on Labor and Human Resources, 105th Cong. (Oct. 28, 1997); Confidentiality of Patient’s Medical Records, Hearings Before the Subcomm. on Gov’t Management, Info. and Technology of the House Comm. on Gov’t Reform and Oversight, 105th Cong. (May 19, 1998) (statement of Richard Harding, M.D., on behalf of health insurers, medical and health policy researchers and pharmaceutical companies). See Confidentiality of Medical Information, Hearings Before the Senate Comm. on Labor and Human Resources, 105th Cong. (Feb. 26, 1998).
1Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (1996) (codified as amended in scattered sections of 18, 26, 29, and 42 U.S.C.A.).
2Pregnancy and genetic disorders are expressly included in the list of conditions that cannot be
For any covered entities who seem surprised by the recent attention to rather far-reaching and complex medical privacy protections, it should be noted that a sound in-house compliance program would have addressed some of these issues several years before. HIPAA applies to all health care providers, insurers, and health care institutions that accept federal funds. Most significantly, HIPAA has allowed criminalization of health care fraud, with individuals or corporate organizations, open to punishment under the U.S. Sentencing Guidelines. Violations of the medical privacy regulations can lead to civil or criminal penalties. In addition, a Privacy Security Office must carry out the tasks of corporate compliance with HIPAA regulations within covered entities. These functions may from time to time overlap with occupational health programs, since the transmission of protected health information (PHI) regarding patient information including about workers must be secured in order to comply with the law.
The popular myth of medical privacy shared by patients and their uninformed doctors suggests that such disclosures can be made and held confidential long after the patient’s care has ended. This is a pretty concept–a nice myth. Unfortunately, this sweet dream of common law protection for individual information is not reflective of the status of individual privacy in general or medical privacy in particular under contemporary laws in the United States. In truth, there is figuratively a whole crowded room full of people in the room when a patient speaks to the doctor or other medical worker. People: regulators, to whom there must be mandatory reporting of some conditions or harms; compliance officers for a variety of statutes; and silent, invisible researchers, studying clinical treatments, in the aggregate or in random clusters. Also, public health officials have the right to all types of health information under law. What happens to medical privacy in this context and what does that mean for compliance programs?
HIPAA’s1 Medical Privacy regulations (2003) confront the reality that the accessibility of the Web and instantaneous internet transmission of data in the information age has only exacerbated the problem of vanishing privacy, not supported by the words of the law. Availability of public records from courts, social security records, academic institutions, and a host of commercial entities have made many bits of personal information as commonly available as reaching for the local phone book. Instantly, such information can be sent irretrievably around the world. At the same time, the right to have information about other people, as it is published in a variety of periodicals and subjected to media scrutiny is a treasured fundamental tenet of American society, a competing interest compared to personal privacy. HIPPA regulations therefore operationalize requirements protect privacy. This has an impact upon any occupational health service contracted through an employer that handles patient information.3 Prohibitions on
the legitimate reason for exclusion from a policy, despite the expense and high-risk among these populations.
1Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (1996) (codified as amended in scattered sections of 18, 26, 29, and 42 U.S.C.A.).
3This discussion on HIPAA is based on the author’s lectures for Yale University School of Medicine, Department of Occupational and Environmental Medicine (Mar. 2003) and on-line discussion for Cyberounds’ Continuing Medical Education, Albert Einstein School of Medicine.
the release of data are the responsibility of a cadre of in-house staff, headed by Privacy Security officers. Any employer who keeps medical records pursuant to the OSH Act will also generate patient information that will likely be included within the rubric of “Protected Health Information” (PHI), which cannot be disclosed without a release unless medically necessary. Such information as the record of an injury, medical surveillance information required to be maintained under the OSHA Medical Access standard, and exposure records that may have identifiers with personal information about an injured worker are examples of information that are potentially subject to HIPAA regulations depending upon the circumstances in which they have been generated. If so, such information must be treated as the subject of privacy security under the new regulations. Even though a given employer may not have an on-site occupational health service, the benefits office and any personnel involved with billing or payment for health insurance and the employer’s disability benefits offices will be covered by some, if not all of the HIPAA privacy regulations. This underscores the need for general counsel, in-house compliance officers, doctors, and all members of the medical community to become conversant with relevant laws to avoid penalties and provide better implementation of privacy security. Although there is plenty of room in HIPAA’s voluminous statutory clauses for “gaming” the system, the ability to completely circumvent the regulations is unlikely.
1:100A HIPAA Basic Statutory Rights of Workers As Patients
1. Right to Notification
According to the HIPAA regulations, each patient has the right to be informed about the statutory obligation of each covered entity to protect the right to privacy. Under the new regulations, all “covered entities” must provide to the patient a Notice of Privacy Practices that explains how each provider might use or disclose the patient’s health information. Patients should be given a written guide to each covered entity’s privacy practices. There is no requirement that the guide be in English, and in areas with a large percentage of non-English speaking populations, the translation of the guide into other languages should be included among the compliance program plans. The notification should be user-friendly, so that patients understand these are rights under federal law, and not an act of kindness or goodwill on the part of the covered entity. This information, whether in pamphlet, poster or electronic format, should be available to patients and people who accompany them at no charge. The information must be readily visible and provided to patients without their asking for it.
2. Right to Request Restrictions Regarding Disclosure
This right is complex and causes great confusion. Patients have the right to limit disclosure of their own PHI and related information in relation to friends, colleagues, and members of their families–even lovers who may take care of them and who may be at risk for depression or contagious disease after care-giving. Personal information need not be disclosed to family and friends, but covered entities are obliged to ensure that patients understand the role that each patient has in shaping this restriction. The regulations allow patients to designate representatives and to deny information to other people rather casually, with no explanation required. The request may be oral or written, but prudent covered entities will always seek such information in writing.
The fact that such restrictions cannot apply to: government authorities, such as criminal investigations; some types of research; treatment, payment, and health care operations from publicly funded covered entities; or public health authorities, however, increases confusion. Patients may erroneously believe they have the right to limit such statutorily required
disclosures, and may feel cheated or misinformed when they find out that mandatory disclosures to government entities have occurred, when patients obtain a tracking of their PHI and records.
3. Right to Access to PHI
For the first time in USA federal law, patients have an unequivocal right to access to their own patient records for inspection and copying. This means that patients may now easily request films, test results, or other information that previously was limited to provider-to-provider contact. While some covered entities may not provide the actual medical records, it is equally true that all patients have a right to copies of evaluations and reports. This means also that patients who are diligent can have back-up information about their own health, to provide continuity of care. Most importantly, this information must be stored by the covered entity in a manner so that it is accessible when requested, but otherwise secure.
4. Right to Tracking or Accounting of Certain Disclosures
An important innovation for medical care is the tracking of PHI. Patients have a right to the actual record of disclosures as information is transmitted to other providers, public health authorities, billing companies and other resources in consultation with the covered entity. Thus, patients can determine whether the information has been sent as it should be or has been sent incorrectly to the wrong party, and can maintain a cause of action regarding such errors. This is an enormous administrative burden, which must be folded into any covered entity’s existing compliance program. Obviously, also there is an overlap between the HIPAA protections for medical information and the role of occupational physicians, occupational health services, and the staff of health benefits offices.
5. Rights to amend PHI records
Patients who have the right to inspect and copy and maintain essentially a parallel copy of their own records, and have the right to track how the PHI in those records is disseminated throughout health care insurance and provider networks also have the right to correct errors in this information. Thus, they have the right to challenge the use of some types of evaluations, to question why certain tests or procedures were used but not others, and to make corrections available to other parties. This is an importance source of internal accountability in the system, because errors in records, previously undetectable, will make excellent documentation in corrective litigation.
1:100B. HIPAA– Waiver of individual rights and authorization of disclosure
There are HIPAA procedures for waiver of individual rights. In order to waive the rights described in the Notice of Privacy Practices, special permission, called authorization, must be obtained for uses and disclosures other than treatment, payment, and health care operations (so-called TPO). TPO is a broad category of activities by a large variety of workers, but it does not give permission for the willful disregard of privacy security, either by individuals, or the system itself. This is therefore an important area for the future development of compliance programs.
1:101. Overlapping jurisdiction with other federal laws and agencies– ERISA: Role of employer-based health benefits in shaping OSHA compliance programs: Black & Decker Disability Plan v. Nord
When the question of “who determines disability?” was asked before the U.S. Supreme
Court in Black & Decker Disability Plan v. Nord,1 the Court held that plan administrators are not obliged to accord special deference to the opinions of treating physicians under the Employee Retirement Income Security Act of 1974 (ERISA).2
In Black & Decker Disability Plan v. Nord, an employee appealed after he was denied disability welfare benefits. The U.S. Court of Appeals for the Ninth Circuit reversed3 and the Supreme Court granted certiorari. The U.S. Supreme Court found that ERISA does not require plan administrators to accord special deference to the opinions of the treating physician because,
[I]n contrast to the obligatory, nationwide Social Security program, “[n]othing in ERISA requires employers to establish employee benefits plans.” Nor does ERISA mandate what kind of benefits employers must provide if they choose to have such a plan. Rather, employers have large leeway to design disability and other welfare plans as they see fit.4
The challenged employee welfare benefit plan,5 governed by ERISA, provided benefits for eligible disabled employees of a major employer and some of its subsidiaries by delegating recommendations about benefit claims to an insurance company. The Plan defined “‘disability’ to mean ‘the complete inability … of a Participant to engage in his regular occupation with the Employer’”6 involving benefits “‘for up to 30 months ….’”7 The employee of a subsidiary,
1Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S. Ct. 1965, 155 L. Ed. 2d 1034, 30 Employee Benefits Cas. (BNA) 1577, 61 Fed. R. Evid. Serv. 1642 (2003).
2Employee Retirement Income Security Act of 1974, 88 Stat. 832 (as amended and codified, 29 U.S.C.A. §§1001 et seq.); see also 29 U.S.C.A. §1133; 29 C.F.R. §2560.503-1.
3Nord v. Black & Decker Disability Plan, 296 F.3d 823, 28 Employee Benefits Cas. (BNA) 2771 (9th Cir. 2002), judgment vacated, 538 U.S. 822, 123 S. Ct. 1965, 155 L. Ed. 2d 1034, 30 Employee Benefits Cas. (BNA) 1577, 61 Fed. R. Evid. Serv. 1642 (2003).
4Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S. Ct. 1965, 1971, 155 L. Ed. 2d 1034, 30 Employee Benefits Cas. (BNA) 1577, 61 Fed. R. Evid. Serv. 1642 (2003).
5Although Congress expected courts would develop federal common law of rights and obligations under ERISA-regulated plans, scope of permissible judicial innovation is narrower in areas where other federal actors are engaged. See Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 832 (as amended and codified, 29 U.S.C.A. §§1001 et seq.).
6
Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S. Ct. 1965, 1967, 155 L. Ed. 2d 1034, 30 Employee Benefits Cas. (BNA) 1577, 61 Fed. R. Evid. Serv. 1642 (2003) (quoting Nord v. Black & Decker Disability Plan, 296 F.3d 823, 826, 28 Employee Benefits Cas. (BNA) 2771 (9th Cir. 2002), judgment vacated, 538 U.S. 822, 123 S. Ct. 1965, 155 L. Ed. 2d 1034, 30 Employee Benefits Cas. (BNA) 1577, 61 Fed. R. Evid. Serv. 1642 (2003)).
7
Nord v. Black & Decker Disability Plan, 296 F.3d 823, 826, 28 Employee Benefits Cas. (BNA) 2771 (9th Cir. 2002), judgment vacated, 538 U.S. 822, 123 S. Ct. 1965, 155 L. Ed. 2d 1034, 30 Employee Benefits Cas. (BNA) 1577, 61 Fed. R. Evid. Serv. 1642 (2003).
submitted a claim for disability benefits under the Plan, which the insurer denied. At the internal review stage, the employee submitted letters and supporting documentation from his physician, and a treating orthopedist to whom he had been referred. These treating physicians stated that the employee suffered from a “degenerative disc disease and chronic pain that rendered him unable to work.”8 The employee benefits plan also required an independent examination, by another physician, selected by the insurance company. The insurer then issued a recommendation to deny the employee’s claim, based on the insurer’s physician’s conclusion that if the employee had pain medication, the employee could perform sedentary work. Seeking to overturn that determination, the employee filed an action under ERISA.
The District Court granted summary judgment upholding the denial of the employee’s claim. The Ninth Circuit reversed, granting summary judgment for the employee. The Court of Appeals explained that the case was controlled by a recent Ninth Circuit decision (Regula v. Delta Family-Care Disability Survivorship Plan)9 holding that, when making benefit determinations, ERISA10 plan administrators must follow a “treating physician rule.” According to the Appeals Court, the rule required an administrator “who rejects [the] opinions [of a claimant’s treating physician] to come forward with specific reasons for his decision, based on substantial evidence in the record.”11 The Ninth Circuit found that, under this rule, the plan administrator had not provided adequate justification for rejecting the opinions of treating physicians. However, the U.S. Supreme Court ultimately held, that “ERISA does not require plan administrators to accord special deference to the opinions of treating physicians.”12
The Court conceded that, “Plan administrators may not arbitrarily refuse to credit a
8Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S. Ct. 1965, 155 L. Ed. 2d 1034, 30 Employee Benefits Cas. (BNA) 1577, 61 Fed. R. Evid. Serv. 1642 (2003).
9Regula v. Delta Family-Care Disability Survivorship Plan, 266 F.3d 1130, 1139-1144, 26 Employee Benefits Cas. (BNA) 2351 (9th Cir. 2001) (abrogated by, Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S. Ct. 1965, 155 L. Ed. 2d 1034, 30 Employee Benefits Cas. (BNA) 1577, 61 Fed. R. Evid. Serv. 1642 (2003)) and cert. granted, judgment vacated, 539 U.S. 901, 123 S. Ct. 2267, 156 L. Ed. 2d 109 (2003).
10Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S. Ct. 1965, 1966, 155 L. Ed. 2d 1034, 30 Employee Benefits Cas. (BNA) 1577, 61 Fed. R. Evid. Serv. 1642 (2003); See ERISA, 29 U.S.C.A. §1133; 29 C.F.R. §2560.503-1 (2002).
11Regula v. Delta Family-Care Disability Survivorship Plan, 266 F.3d 1130, 1139-1144, 26 Employee Benefits Cas. (BNA) 2351 (9th Cir. 2001) (abrogated by, Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S. Ct. 1965, 155 L. Ed. 2d 1034, 30 Employee Benefits Cas. (BNA) 1577, 61 Fed. R. Evid. Serv. 1642 (2003)) and cert. granted, judgment vacated, 539 U.S. 901, 123 S. Ct. 2267, 156 L. Ed. 2d 109 (2003).
12The treating physician” imposed by the Ninth Circuit was originally developed by Courts of Appeals as a means to control disability determinations by administrative law judges under the Social Security Act. In 1991, the Commissioner of Social Security adopted regulations approving and formalizing use of the rule in the Social Security disability program.
claimant’s reliable evidence, including the opinions of a treating physician. But courts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant’s physician; nor may courts impose on administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician’s evaluation.” 13 The Court underscored this notion of employer-autonomy in crafting plans, which ultimately increases the significance of in-house compliance program work, by stating, “But these measures do not command plan administrators to credit the opinions of treating physicians over other evidence relevant to the claimant’s medical condition.”14
The Court engaged in an odd comparison between the ERISA regulations, administered by the U.S. Department of Labor, and the regulations governing determinations of disability under for the Social Security Administration, under the auspices of the Department of Health and Human Services (DHHS). The Court drew several valid distinctions between the employer-based ERISA employee health benefits plans, which are voluntary and unique to the needs of each employer, and the nationally mandated Social Security system that covers citizens whether or not they are employed. The Court was aware of the potential for conflicts of interest and the incentives for inadequacies that are rife within any privately funded system, but dismissed these concerns by first agreeing with the Ninth Circuit analysis and then instead stated:
As compared to consultants retained by a plan, it may be true that treating physicians, as a rule, “ha[ve] a greater opportunity to know and observe the patient as an individual ….” Nor do we question the Court of Appeals’ concern that physicians repeatedly retained by benefits plans may have an “incentive to make a finding of ‘not disabled’ in order to save their employers money and to preserve their own consulting arrangements.” But the assumption that the opinions of a treating physician warrant greater credit than the opinions of plan consultants may make scant sense when, for example, the relationship between the claimant and the treating physician has been of short duration, or when a specialist engaged by the plan has expertise the treating physician lacks. And if a consultant engaged by a plan may have an “incentive” to make a finding of “not disabled,” so a treating physician, in a close case, may favor a finding of “disabled.” Intelligent resolution of the question of whether routine deference to the opinion of a claimant’s treating physician would yield more accurate disability determinations, it thus appears, might be aided by empirical investigation of the kind courts are ill equipped to conduct.15
Instead of providing closer scrutiny to the text of the negotiated plan in question at bar, the U.S. Supreme Court opined that if the Secretary of Labor desired to adopt a treating physician rule by regulation, courts would examine that determination with the appropriate deference. Because the Secretary had not chosen that course, and an amicus brief reflecting the
13Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S. Ct. 1965, 1966-1967, 155 L. Ed. 2d 1034, 30 Employee Benefits Cas. (BNA) 1577, 61 Fed. R. Evid. Serv. 1642 (2003).
14Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S. Ct. 1965, 1967, 155 L. Ed. 2d 1034, 30 Employee Benefits Cas. (BNA) 1577, 61 Fed. R. Evid. Serv. 1642 (2003).
15Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S. Ct. 1965, 1970, 155 L. Ed. 2d 1034, 30 Employee Benefits Cas. (BNA) 1577, 61 Fed. R. Evid. Serv. 1642 (2003) (quoting in part Regula v. Delta Family-Care Disability Survivorship Plan, 266 F.3d 1130, 1143, 26 Employee Benefits Cas. (BNA) 2351 (9th Cir. 2001) (abrogated by, Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S. Ct. 1965, 155 L. Ed. 2d 1034, 30 Employee Benefits Cas. (BNA) 1577, 61 Fed. R. Evid. Serv. 1642 (2003)) and cert. granted, judgment vacated, 539 U.S. 901, 123 S. Ct. 2267, 156 L. Ed. 2d 109 (2003).
Department of Labor’s position opposed adoption of such a rule for disability determinations under plans covered by ERISA,16 the Court found no basis for such a rule.17 In addition, the Court found that the question of whether a treating physician rule would “increas[e] the accuracy of disability determinations” under ERISA plans should be addressed by the Legislature or superintending administrative agency.18
The Court did however agree that ERISA does not require employers to establish
16The Court cited Amicus Curiae brief 7-27, reflecting the USDOL position that opposed adopting the treating physician rule for disability determinations under plans covered by ERISA. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S. Ct. 1965, 1970, 155 L. Ed. 2d 1034, 30 Employee Benefits Cas. (BNA) 1577, 61 Fed. R. Evid. Serv. 1642 (2003) and “Nothing in ERISA or the Secretary of Labor’s ERISA regulations, however, suggests that plan administrators must accord special deference to the opinions of treating physicians, or imposes a heightened burden of explanation on administrators when they reject a treating physician’s opinion.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S. Ct. 1965, 1966, 155 L. Ed. 2d 1034, 30 Employee Benefits Cas. (BNA) 1577, 61 Fed. R. Evid. Serv. 1642 (2003).
17See also the following appellate briefs: Brief of Delta Family-Care Disability and Survivorship Plan and Delta Air Lines, Inc. Amici Curiae in Support of Petitioner, Black & Decker Disability Plan v. Nord, 2003 WL 671913 (Feb. 24, 2003); Brief of the ERISA Industry Committee as Amicus Curiae in Support of Petitioner, 2003 WL 672453 (February 24, 2003); Brief of the American Benefits Council as Amicus Curiae in Support of Petitioner, Black & Decker Disability Plan v. Nord, 2003 WL 721523 (Feb. 24, 2003); Brief of Health Insurance Association of America As Amici Curiae in Support of Petitioner, Black & Decker Disability Plan v. Nord, 2003 WL 721531 (Feb. 24, 2003); Brief for Bert Bell/Pete Rozelle NFL Player Retirement Plan as Amicus Curiae in Support of Petitioner, Black & Decker Disability Plan v. Nord, 2003 WL 721538 (February 24, 2003); Brief of The National Association of Manufacturers and The Michigan Manufacturers Association on The Merits as Amici Curiae, Black & Decker Disability Plan v. Nord, 2003 WL 721547 (Feb. 24, 2003); Brief Amici Curiae on Behalf of Peabody Energy Corporation, Old Republic Insurance Company and Signal Mutual Indemnity Association, Ltd. in Support of Petitioner, Black & Decker Disability Plan v. Nord, 2003 WL 721549 (Feb. 24, 2003); Brief for the United States as Amicus Curiae Supporting Petitioner, Black & Decker Disability Plan v. Nord, 2003 WL 1785768 (Mar. 28, 2003); Brief Amicus Curiae of AARP in Support of Respondent, Black & Decker Disability Plan v. Nord, 2003 WL 1785768 (Mar. 28, 2003); Brief of the American Medical Association as Amicus Curiae in Support of Respondent, Black & Decker Disability Plan v. Nord, 2003 WL 1785768 (Mar. 28, 2003); Brief of the National Employment Lawyers Association, Black & Decker Disability Plan v. Nord, 2003 WL 1785768 (Mar. 28, 2003) (support of the respondent).
18Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S. Ct. 1965, 1970, 155 L. Ed. 2d 1034, 30 Employee Benefits Cas. (BNA) 1577, 61 Fed. R. Evid. Serv. 1642 (2003) (““ERISA empowers the Secretary of Labor to ‘‘prescribe such regulations as he finds necessary or appropriate to carry out’’ the statutory provisions securing employee benefit rights. &s;§1135; see &s;§1133 (plans shall process claims ‘‘[i]n accordance with regulations of the Secretary’’””).
employee benefits plans or mandate the scope of benefits within employer-based plans. Indeed, long-established law supports the notion that great leeway is accorded to employers when establishing plans, as a positive incentive for their development and operationalizing such benefits to protect the health of employees and their dependent families.
The Court found that “nothing in ERISA requires employers to establish employee benefits plans” or mandates what kind of benefits employers must provide if they choose to have such a plan. Rather, employers have large leeway to design disability and other welfare plans as they see fit.19 For this reason, the Court gave deference to the “Labor Secretary’s stated view that ERISA is best served by preserving the greatest flexibility possible for operating claims processing systems consistent with a plan’s prudent administration.”20 even though when determining entitlement to Social Security benefits, an adjudicator measures the claimant’s condition against a uniform set of federal criteria. The Court expressly eschewed the use of such uniform national criteria under ERISA as contrary to its purpose and precepts favoring employer discretion. Instead, the Court drew a sharp contrast between ERISA’s view and a rule adopted by the Commissioner of Social Security, which is applied when determining whether a claimant is entitled to Social Security disability benefits. Under the Social Security regulations, “special weight is accorded opinions of the claimant’s treating physician.”21 Finding that the Court of Appeals for the Ninth Circuit erroneously applied a “treating physician rule” to a disability plan governed by ERISA, the Court vacated the Court of Appeals judgment with remand for further proceedings. The Court’s analysis leaves determinations of disability squarely within the parameters of the negotiated employer-based disability plan, and thus, within the scope of sound in-house compliance programs.
The implications of this situation for in-house occupational safety and health compliance programs is twofold. First, it is possible that a treating physician’s judgment may not comport with the IME or the social security administration’s definition of disability. In the practical world of OEM decision making, this has implications for fitness for duty and return to work orders. The fact that a treating physician’s word is not final also places a greater burden on the occupational safety and health program to be effective in-house self-regulators, who police
19 Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S. Ct. 1965, 1966, 155 L. Ed. 2d 1034, 30 Employee Benefits Cas. (BNA) 1577, 61 Fed. R. Evid. Serv. 1642 (2003) (citation omitted). When examining the“validity of a claim to benefits under an ERISA plan,” the decisions may vary depending upon the scope and interpretation of terms in the plan at issue. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S. Ct. 1965, 1966, 155 L. Ed. 2d 1034, 30 Employee Benefits Cas. (BNA) 1577, 61 Fed. R. Evid. Serv. 1642 (2003) (citing Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 109 S. Ct. 948, 103 L. Ed. 2d 80, 10 Employee Benefits Cas. (BNA) 1873 (1989)).
20
Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S. Ct. 1965, 1966, 155 L. Ed. 2d 1034, 30 Employee Benefits Cas. (BNA) 1577, 61 Fed. R. Evid. Serv. 1642 (2003).
21Black & Decker Disability Plan v. Nord, 538 U.S. 822, 123 S. Ct. 1965, 1966, 155 L. Ed. 2d 1034, 30 Employee Benefits Cas. (BNA) 1577, 61 Fed. R. Evid. Serv. 1642 (2003) (citing 20 C.F.R. §§404.1527(d)(2), 416.927(d)(2)).
compliance by monitoring on-going hazardous conditions, conducting medical surveillance and monitoring the impact of exposures upon working populations that may be considered to be fit for work, because they are not disabled (even though they manifest some of the symptoms and limitations of gradual injuries or long term illness). Under this interpretation as offered by the U.S. Supreme Court, even if OSHA standards are written with an eye to “one size fits all regulation,” it is clear that there will be sometimes a substantial difference in the variability of effects from exposures in the workplace. The in-house compliance program must take this reality into account, when shaping the internal standards for job assignments.
1:102. Overlapping jurisdiction with other federal laws — The Clean Air Act
Section 109(a) of the Clean Air Act (CAA) requires the Environmental Protection Agency Administrator to promulgate national ambient air quality standards1 for each air pollutant for which “air quality criteria” have been issued under §108. Pursuant to §109(d)(1), in 1997 the Administrator revised the ozone and particulate matter National Ambient Air Quality Standards (NAAQS). The revised NAAQS were challenged on several grounds. The U.S. Supreme Court examined the EPA’s role in administering the Clean Air Act: (1) whether §109(b)(1) of the Clean Air Act delegates legislative power to the Administrator of the EPA; (2) whether the Administrator may consider the costs of implementation in setting national ambient air quality standards under §109(b)(1); (3) whether the Court of Appeals had jurisdiction to review the EPA’s interpretation of Part D of Title I of the CAA,2 with respect to implementing the revised ozone NAAQS; and (4) if so, whether the EPA’s interpretation of that part was permissible. The U.S. Supreme Court held that Section 109(b) does not permit the Administrator to consider implementation costs in setting NAAQS. CAA often expressly grants the EPA the authority to consider implementation costs. Therefore a provision for costs will not be inferred from its ambiguous provisions. Sections 108 and 109 did not discuss costs–the text of §109(b)(1) in its context is clear.3 The Court also held that CAA §109(b)(1) does not delegate legislative power to the EPA. When conferring decision-making authority upon agencies, Congress must lay down an intelligible principle to which the person or body authorized to act is directed to conform.4 An agency cannot cure an unlawful delegation of legislative power by
1Section 109(a) of the CAA, as added, 84 Stat 1679, and amended, 42 U.S.C.A. §7409(a), requires the Administrator of the EPA to promulgate NAAQS for each air pollutant for which “air quality criteria” have been issued under §108, 42 U.S.C.A. §7408. Once a NAAQS has been promulgated, the Administrator must review the standard (and the criteria on which it is based) “at five-year intervals” and make “such revisions … as may be appropriate.” CAA §109(d)(1), 42 U.S.C.A. §7409(d)(1). These cases arose when, on July 18, 1997, the Administrator revised the NAAQS for particulate matter (PM) and ozone. See NAAQS for Particulate Matter, 62 Fed. Reg. 38652 (codified in 40 C.F.R. §50.7 (1999)); NAAQS for Ozone, id. at 38856 (codified in 40 C.F.R. §§50.9, 50.10 (1999)).
242 U.S.C.A. §§7501 to 7515.
3See, e.g., Miller v. French, 530 U.S. 327, 341, 120 S. Ct. 2246, 147 L. Ed. 2d 326 (2000).
4J.W. Hampton, Jr., & Co. v. U.S., 276 U.S. 394, 409, 48 S. Ct. 348, 72 L. Ed. 624, 1 Int’l Trade Rep. (BNA) 1046 (Cust. App. 1928).
adopting in a limiting construction of the statute.5
The Court held that EPA’s implementation policy was unlawful, reciting a litany of precedents regarding the economic costs of reducing exposures to prevent the harms from toxic or hazardous substances, “[t]he EPA, “based on” the information about health effects contained in the technical “criteria” documents compiled under §108(a)(2),6 is to identify the maximum airborne concentration of a pollutant that the public health can tolerate, decrease the concentration to provide an “adequate” margin of safety, and set the standard at that level. Nowhere are the costs of achieving such a standard made part of that initial calculation?7
Noting that Congress was aware of economic factors when it passed the CAA, the Supreme Court “therefore refused to find implicit in ambiguous sections of the CAA an authorization to consider costs that has elsewhere, and so often, been expressly granted.”8
The Court further stated that:
The scope of discretion §109(b)(1) allows is in fact well within the outer limits of our nondelegation precedents. In the history of the Court we have found the requisite “intelligible principle” lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring “fair competition.”9
It then stated: “The degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.10 Section 109(b)(1) of the CAA, which to repeat we interpret as requiring the EPA to set air quality standards at the level that is “requisite”–that is, not lower or higher than is necessary–to protect the public health with an adequate margin of safety, fits comfortably within the scope of discretion permitted by our precedent.” The Court therefore reversed the judgment of the Court of Appeals remanding for reinterpretation that would avoid a supposed delegation of legislative power.
1:104. Overlapping jurisdiction with other federal laws– National Labor Relations Act
The NLRA Section 8(a)(2) provides that it shall be an unfair labor practice for an employer to dominate or interfere with the formation or administration of any labor organization
5Whitman v. American Trucking, 121 S. Ct. at 911-914.
642 U.S.C.A. §7408(a)(2).
7Whitman v. American Trucking, 121 S. Ct. at 908.
8Whitman v. American Trucking, 121 S. Ct. at 908-909.
9Whitman v. American Trucking, citing Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S. Ct. 241, 79 L. Ed. 446 (1935); A.L.A. Schechter Poultry Corporation v. U.S., 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570, 97 A.L.R. 947 (1935).
10Whitman v. American Trucking, citing Loving v. U.S., 517 U.S. 748, 772-773, 116 S. Ct. 1737, 135 L. Ed. 2d 36 (1996); U. S. v. Mazurie, 419 U.S. 544, 556-557, 95 S. Ct. 710, 42 L. Ed. 2d 706 (1975).
or contribute financial or other support to it: Provided, that subject to rules and regulations made and published by the Board pursuant to section 6, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time. Ironically, the interpretation of these laws that prevents the development of joint safety committees and actually undermines the purposes of promoting improved working conditions, a public policy that is consistent with the legislative purposes of both the OSH Act and the NLRA.
1:105. Overlapping jurisdiction with other federal laws and agencies– Federal Employers’ Liability Act (FELA): Asbestosis and jurisdiction under FELA
The asbestosis claimants in Norfolk & Western Railway Company v. Ayers1 brought an action under the Federal Employers’ Liability Act (FELA)2 against their former employer, in the Circuit Court of Kanawha County, West Virginia. Norfolk, they alleged, negligently exposed them to asbestos, which caused them to contract the occupational disease asbestosis. As an element of their occupational disease damages, the asbestosis claimants sought recovery for mental anguish based on their fear of developing cancer. At plaintiff’s option, a FELA case may be brought in federal or state court. Under the FELA, an employee who suffers an “injury” caused “in whole or in part” by a railroad’s negligence may recover his or her full damages from the railroad, regardless of whether the injury was also caused “in part” by the actions of a third party. Because the asbestosis claimants suffered such an “injury,” the Court held that the trial court had correctly instructed the jury that there could be recovery for fear of cancer arising out of the claimants’ present asbestosis condition.3 The Supreme Court ruled specifically and only, on the question of whether this case should be aligned with those in which fear of future injury stems from a current injury, or with those presenting a stand-alone claim for negligent infliction of emotional distress. The Court held that the present fear of future injury is proper under FELA and upheld the award of damages to plaintiffs based on their reasonable and genuine fears of future illness. The Supreme Court found that, “many courts in recent years have considered the question presented here–whether an asbestosis claimant may be compensated for fear of cancer … a clear majority [of cases addressing this issue] sustain recovery.”4
1Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 123 S. Ct. 1210, 155 L. Ed. 2d 261, 19 I.E.R. Cas. (BNA) 1217, 2003 A.M.C. 609, 33 Envtl. L. Rep. 20155 (2003).
2Federal Employers’ Liability Act (FELA), 45 U.S.C.A. §56.
3The Court found that: “The trial judge correctly stated the law when he charged the jury that an asbestosis claimant, upon demonstrating a reasonable fear of cancer stemming from his present disease, could re cover for that fear as part of asbestosis-related pain and suffering damages…” This case is properly placed in the emotional distress stemming from a physical injury category. The parties agree that the claimants suffer from asbestosis, a cognizable injury under the FELA.”” Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 123 S. Ct. 1210, 1211-12, 155 L. Ed. 2d 261, 19 I.E.R. Cas. (BNA) 1217, 2003 A.M.C. 609, 33 Envtl. L. Rep. 20155 (2003).
4Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 123 S. Ct. 1210, 1220, 155 L. Ed. 2d 261, 19 I.E.R. Cas. (BNA) 1217, 2003 A.M.C. 609, 33 Envtl. L. Rep. 20155 (2003). The Court cited the following cases in support of this assertion: See, e.g., Hoerner v. Anco Insulations, Inc., 812 So. 2d 45 (fear of cancer testimony ““appropriately presented in order to prove
Further, the Court explained that:
By 1908, when the FELA was enacted, the common law had evolved to encompass apprehension of future harm as a component of pain and suffering. The future harm, genuinely feared, need not be more likely than not to materialize. Physically injured plaintiffs, it is now recognized, may recover for “reasonable fears” of a future disease…. In the course of the 20th century, courts sustained a variety of other “fear-of” claims. Among them have been claims for fear of cancer. Heightened vulnerability to cancer, as one court observed, “must necessarily have a most depressing effect upon the injured person. Like the sword of Damocles,” he knows it is there, but not whether or when it will fall.5
Looking at the statutory language of the FELA, Norfolk argued that the Act provides that “a railroad is liable only for injuries an employee sustains ‘while he is employed by such carrier.’”6 However, the Court found that:
The FELA applies to railroads only “while [they are] engaging in” interstate commerce. The clause on which Norfolk relies clarifies that the statute’s reach is correspondingly limited to injuries sustained by railroad employees while the employees are themselves engaged “in such commerce.” Placed in context, the clause does not speak to cases in which an injury has multiple causes, some related to railroad employment and others unrelated to that employment. Such cases … are controlled by the language just noted, which states that the railroad is “liable in damages” so long the injury was caused “in whole or in part” by its “negligence.”
[asbestosis claimant’s] general damage claim””); Beeman v. Manville Corp. Asbestos Disease Compensation Fund, 496 N.W.2d 247, Prod. Liab. Rep. (CCH) P 13424 (Iowa 1993) (cancer evidence held admissible to show reasonableness of asbestosis claimant’s fear of cancer); Denton v. Southern Ry. Co., 854 S.W.2d 885 (Tenn. Ct. App. 1993) (FELA decision holding erroneous ““Trial Court’s exclusion of evidence about [asbestosis claimant’s] fear of cancer””); Celotex Corp. v. Wilson, 607 A.2d 1223 (Del. 1992) (sustaining jury charge allowing damages for asbestosis claimants’ fear of cancer); Coffman v. Keene Corp., 257 N.J. Super. 279, 608 A.2d 416, Prod. Liab. Rep. (CCH) P 13399 (App. Div. 1992), judgment aff’d, 133 N.J. 581, 628 A.2d 710, Prod. Liab. Rep. (CCH) P 13720, 38 A.L.R.5th 911 (1993) (sustaining award of damages that included compensation for asbestosis claimant’s fear of cancer); Fibreboard Corp. v. Pool, 813 S.W.2d 658, Prod. Liab. Rep. (CCH) P 12990 (Tex. App. Texarkana 1991), writ granted, (Apr. 29, 1992) and writ withdrawn, (Nov. 11, 1992) and writ denied, (Nov. 11, 1992) (sustaining jury charge allowing fear of cancer damages for plaintiff with ““confirmed asbestosis””); Sorenson v. Raymark Industries, Inc., 51 Wash. App. 954, 756 P.2d 740, Prod. Liab. Rep. (CCH) P 11894 (Div. 2 1988) (evidence of increased risk of cancer held ““admissible to establish, as a damage factor, the reasonableness of [an asbestosis claimant’s] fear that he would contract cancer””); Eagle-Picher Industries, Inc. v. Cox, 481 So. 2d 517, Prod. Liab. Rep. (CCH) P 10926 (Fla. Dist. Ct. App. 3d Dist. 1985) (asbestosis claimants may recover for fear of cancer); Devlin v. Johns-Manville Corp., 202 N.J. Super. 556, 495 A.2d 495 (Law Div. 1985) (asbestosis claimants, who suffered ““substantial bodily harm”” from asbestos, may recover for fear of cancer).
5Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 123 S. Ct. 1210, 1219, 155 L. Ed. 2d 261, 19 I.E.R. Cas. (BNA) 1217, 2003 A.M.C. 609, 33 Envtl. L. Rep. 20155 (2003) (citations omitted).
6Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 123 S. Ct. 1210, 1224, 155 L. Ed. 2d 261, 19 I.E.R. Cas. (BNA) 1217, 2003 A.M.C. 609, 33 Envtl. L. Rep. 20155 (2003).
… Norfolk’s view also runs counter to a century of FELA jurisprudence. 7
The Court therefore rejected the employer’s contention that the trial court erred in instructing the jury “not to make a deduction [from damages awards] for the contribution of non-railroad [asbestos] exposures”8 to the asbestosis claimants’ injuries. The Court found instead that the FELA’s statutory language, supports the trial court’s understanding that the FELA does not authorize apportionment of damages between railroad and non-railroad causes. Specifically, the Act provides that:
Every common carrier by railroad while engaging in [interstate] commerce…, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce … for such injury … resulting in whole or in part from the negligence of … such carrier ….9
Under the FELA, an employee who suffers an “injury” caused “in whole or in part” by a railroad’s negligence may recover his or her full damages from the railroad, regardless of whether the injury was also caused “in part” by the actions of a third party.
The Court found “there is an undisputed relationship between exposure to asbestos sufficient to cause asbestosis, and asbestos-related cancer.”10 The employer’s, own expert acknowledged that asbestosis puts a worker in a heightened risk category for asbestos-related lung cancer. The Court took judicial notice of the significance of this particular occupational disease in the life of the nation, citing Ortiz v. Fiberboard, “The ‘elephantine’ mass of asbestos cases lodged in state and federal courts, we again recognize, ‘defies customary judicial administration and calls for national legislation.’ ”11 The Court further opined that all courts must resist pleas of the kind this employer made, essentially to reconfigure established
7Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 123 S. Ct. 1210, 1225-26, 155 L. Ed. 2d 261, 19 I.E.R. Cas. (BNA) 1217, 2003 A.M.C. 609, 33 Envtl. L. Rep. 20155 (2003) (citations omitted); see 45 U.S.C.A. §51.
8Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 123 S. Ct. 1210, 1225, 155 L. Ed. 2d 261, 19 I.E.R. Cas. (BNA) 1217, 2003 A.M.C. 609, 33 Envtl. L. Rep. 20155 (2003).
945 U.S.C.A. §51; Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 123 S. Ct. 1210, 1225, 155 L. Ed. 2d 261, 19 I.E.R. Cas. (BNA) 1217, 2003 A.M.C. 609, 33 Envtl. L. Rep. 20155 (2003).
10Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 123 S. Ct. 1210, 1222, 155 L. Ed. 2d 261, 19 I.E.R. Cas. (BNA) 1217, 2003 A.M.C. 609, 33 Envtl. L. Rep. 20155 (2003).
11Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 123 S. Ct. 1210, 155 L. Ed. 2d 261, 19 I.E.R. Cas. (BNA) 1217, 2003 A.M.C. 609, 33 Envtl. L. Rep. 20155 (2003) (citing Ortiz v. Fibreboard Corp., 527 U.S. 815, 119 S. Ct. 2295, 144 L. Ed. 2d 715, 43 Fed. R. Serv. 3d 691 (1999). The Court also cited the Report of the Judicial Conference Ad Hoc Committee on Asbestos Litigation 3, 27-35 (Mar. 1991), which the Court found concluded that effective reform requires federal legislation creating a national asbestos dispute-resolution scheme. The Court also cited the dissenting statement of Hogan in the Report, finding that ““a national solution is the only answer”” and suggesting ““passage by Congress of an administrative claims procedure similar to the Black Lung legislation.”” Report of the Judicial Conference Ad Hoc Committee on Asbestos Litigation 3, 42 (Mar. 1991).
liability rules because they do not serve to abate the prevailing asbestos litigation crisis.
1:106. Overlapping jurisdiction with other federal laws and agencies– Role of other federal agencies under Ryan White CARE Act
Under the Ryan White Comprehensive AIDS Resources Emergency Act of 1990, which was passed to facilitate research and caregiving pertaining to HIV infection and AIDS,1 employers are required to notify emergency response personnel if they have had direct exposure to HIV, TB, or other communicable disease. The law requires the Secretary of Labor to create “a list of potentially life-threatening infectious diseases to which emergency response employees may be exposed in responding to emergencies” and guidelines for disclosure of hazardous exposure to affected employees.
1:107. Overlapping jurisdiction with Non-OSHA federal laws — Americans with Disabilities Act (ADA)–
The Americans with Disabilities Act of 1990 (ADA) protects individuals with disabilities from discrimination in: employment, housing, public accommodations, education, transportation, and communication. ADA defines disability as “a physical or mental impairment that substantially limits … [a] major life activity ….”1 ADA’s goal is to eliminate prejudiced behavior in society; therefore one need not actually be impaired in order to have the benefit of its protections, if the plaintiff has suffered from an adverse, discriminatory act rooted in prejudice against disabled people.2 ADA provides that “no covered entity shall discriminate against a qualified individual with a disability because of the disability of such an individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”3
1
Ryan White Comprehensive AIDS Resources Emergency (CARE) Act, 42 U.S.C.A. §300ff-81. See also 42 U.S.C.A. &ss;§§7384 et seq.
1
42 U.S.C.A. §12101(a)(3).
242 U.S.C.A. §12112(a). See also Fox & Finesilver, Genetics and the Workplace: ADA Applicability to Genetic Information, 26 Colo. Law 75 (1997) (citing Using Gene Tests to Deny Jobs is Ruled Illegal, N.Y. Times, Apr. 8, 1995, at A12) (reporting that the Equal Employment Opportunity Commission considers the use of genetic tests discriminatory if used to deny employment without informing the applicants of the tests; further, the claims alleged violations of the Americans with Disabilities Act (ADA), Title VII, and the right to privacy under both the United States and California Constitutions).
342 U.S.C.A. §12112(a). See also 42 U.S.C.A. §§12131 to 12165. “No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.
Administered by the Equal Employment Opportunity Commission,4 Title I of the ADA prohibits employment discrimination on the basis of disability, by employers with 15 or more employees. The ADA also includes provisions that apply to public services performed by the government, public accommodations operated by private entities, and telecommunications. Congress passed ADA seeking to change behavior that is produced by prejudice, and therefore rejected a “list approach” to covered disease or illness. Bragdon v. Abbott,5 involving an asymptomative person with HIV antibodies, suggests that there are a few limits on the reach of illness or potential illness that are protected under the ADA.6
It is confusing but true: The ADA does not expressly prohibit pre-placement or post-offer exams. Instead, the ADA lists a labyrinth of protections for such information. The ADA does expressly state that if such exams are given and the applicant is refused employment on other grounds, the refused applicant has the right to look at the employer’s underlying motives to see whether the excuse offered was instead a “pretext” for using the exam as a screening tool when hiring. There are very severe monetary penalties, including hiring with back pay and statutory attorney’s fees, if the court finds that the refusal to hire was based on a pretext and that the real motive for the refusal to hire was the findings of a medical exam. In essence, the exam itself becomes proof that the applicant is the ADA protected, thereby underscoring the role of good communication between the occupational physician and general counsel’s staff when crafting plans for in-house OSHA compliance programs.
Prior to the passage of the ADA, a handful of physicians refrained from performing post offer testing of certain essential job functions as the risk if a post offer person alleges an injury while conducting the functional test. In that context, the individual is not an employee, so the only remedies available would fall outside of Workers’ Compensation, into the jurisdiction of old-fashioned personal injury in tort. Employer arguments favoring such examinations claim that review of the employee’s medical history may increase the predictability of specific risks and prevent workers’ compensation claims by avoiding assignments that could trigger harms. The benefit is that risk can be avoided by changing the assignment, but all too often prior to the passage of the ADA the “avoidance” mechanism was simply to avoid hiring the person who was examined and hire a person with no medical history suggesting risk of harm. Under the ADA, however, such individuals are by definition a part of the suspect classification that would require them to be employed with using medical history information in decision making and then to use that medical information only to craft reasonable accommodations preventing harm. It would be inconsistent with the idea of hiring disabled Americans to then turn around and allow employers
4
See 42 U.S.C.A. §12111.17.
5Bragdon v. Abbott, 524 U.S. 624, 118 S. Ct. 2196, 141 L. Ed. 2d 540, 8 A.D. Cas. (BNA) 239 (1998).
6ADA defines a direct threat to be “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services.” 42 U.S.C.A. §12182(b)(3).
to screen out people who are potentially disabled or at risk. So, there is no present interpretation of the ADA that would screen people out because of a possible risk to their own health as a result of workplace exposures.1 Despite this Congressional mandate, however, many employers continue to use an extensive history form that often triggers further investigation. But there should be clear advice from in-house counsel regarding the perils of the ADA violations when using leading questions, such as “When was the last time you injured your back?”
Proving that any preplacement exam was not used even accidentally in a discriminatory manner would be a very difficult case to prove under the present law. Maybe there are instances where pre-employment or post-offer screening might perhaps be valid, but the ADA legislative history and subsequent case law has yet to draw that limit. This concept is particularly difficult to grasp in rather predictable cases where someone’s medical history suggests that they are at high risk for a back injury or other repetitive or gradual injury that they have already experienced in the past. What if the prospective employee has a back injury history and the job requires lifting heavy objects? The answer is: one must first look at the job description itself. There may be problems even with “job-related criteria.” For example, if it requires more lifting than any human being should be carrying, then the prospective employee’s back injury history does not matter. Making the employee meet ridiculous criteria cannot be protected by the ADA or OSH Act or other laws. The ADA is quite clear, however, that if any such physicals occur, the employer must be able to prove that they were not used for decision making. The reason for this is that there was a political compromise in the U.S. Congress, because there was inadequate support for language to specifically prohibit such exams entirely.
But this is a distinction without a difference: the current status of the law suggests there are no circumstances that would support an employer against a claim of the invidious use of the exam and a refusal to hire for a different reason as an excuse or pretext for discrimination. The ADA has a lot of special language about preventing pretext for discrimination, so unless the law changes, it seems wiser not to engage in such exams at all–even though there is no language to expressly forbid them under law. Consequently, in house occupational physicians have asked the lawyers on their corporate compliance staff, “What if your employer threatens to fire you if you don’t sign off that these people shouldn’t work, but you know that they will get hurt if they do?”
This is a difficult question because no one wants to counsel someone to get hurt and, at the same time, violating the law is not a useful way to keep your job. An employer who wants to discriminate in selecting the workforce is neither a wise nor desirable employer for a highly paid professional like an occupational physician. Such practices will eventually sign oneself into liability for discrimination under the ADA. That can be more costly, in time, money, and reputation than the loss of a job on the grounds that someone refused to violate the federal law. In the meantime, the treating physician should go out of the way to remind the employer of the ADA requirements not to use such information in decison-making in a written memo; point out reasonable accommodations; recommend consultation with other experts; request the employer
1According to Ted Kennedy, “The ADA provides that a valid qualification standard is that a person not pose a direct threat to the health or safety of other individuals in the workplace–that is, to other co-workers or customers ….”
to alter job descriptions so that they easily reflect the need for reasonable accommodations and request that all of this information be recorded in follow-up reports and then documented. It should also be noted that supporting the medical needs of employees in the face of potentially unrealistic job requirements, despite the conflict of interest for the occupational physician vis-à-vis the physician’s own employer, is quite consistent with the American College of Occupational and Environmental Medicine Code of Ethical Conduct.1 There is a remarkable symbiotic relationship between the Code of Ethics and the ADA, and OSHA’s own requirements regarding the nature and use of sound occupational health practice as a part of the employer’s General Duties.
1:107A. Americans with Disabilities Act (ADA)– Limits on ADA protection
The ADA defines a direct threat to be “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services.”1 The Equal Employment Opportunity Commission is authorized to administer parts of the ADA as it applies to employment.2 Title I of the ADA prohibits employment discrimination on the basis of disability, by employers with 15 or more employees. The ADA also includes provisions that apply to public services performed by governmental entities, public accommodations operated by private entities, and telecommunications networks.3 The ADA provides that “no covered entity shall discriminate against a qualified individual with a disability because of the disability of such an individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”4 “No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.”
It is confusing, too, that the ADA specifically refers to health and safety threats to others. This reflects Congress’ poor understanding of safety and health issues, and the low priority given to occupational safety and health issues in particular. Under the ADA, employers may not deny a person an employment opportunity based on paternalistic concerns regarding the person’s health.
1American College of Occupational and Environmental Medicine (ACOEM), ACOEM Code of Ethical Conduct, available at http://www.acoem.org/code/default.asp.
142 U.S.C.A. §12182(b)(3) (1994). Fox & Finesilver, Genetics and the Workplace: ADA Applicability to Genetic Information, 26 Colo. Law 75 (1997) (citing Using Gene Tests to Deny Jobs is Ruled Illegal, N.Y. Times, Apr. 8, 1995, at A12) (reporting that the Equal Employment Opportunity Commission considers the use of genetic tests discriminatory if used to deny employment without informing the applicants of the tests. Further, the claims alleged violations of the Americans with Disabilities Act (ADA), Title VII, and the right to privacy under both the United States and California Constitutions).
2See 42 U.S.C.A. §§12111 to 12117.
342 U.S.C.A. §12112(a).
442 U.S.C.A. §12112.
As emphasized in the ACOEM code of ethical conduct, “employers may be entitled to counsel about an individual’s medical work fitness, but not to diagnoses or specific details, except in compliance with laws and regulations ….”
1:108. Overlapping jurisdiction with other federal laws — Privacy/confidentiality of medical information
The “Right to Privacy”1 that Justice Louis Brandeis wrote about so eloquently and sympathetically is not found in the U.S. Constitution. Rather, the 1890 Harvard Law Review article “The Right to Privacy” is cited most often in dissent, where privacy protections have been denied until HIPAA created the compliance officer responsible for privacy security.
The link between HIPAA privacy security requirements, reasonable accommodations with confidentiality protections against discrimination based on disability, and overall OSH Act compliance functions based on training for job hazards is now inextricable. Because cause of injury does not matter to HIPAA or ADA, employment must also be absorbed into the new employer’s health insurance system. For example, if there were increased carpal tunnel syndrome treatment and therapies in the employer’s population, ongoing communication between in-house occupational safety and health compliance staff would make certain that reasonable accommodations and needed services are provided and covered under the policy; feedback from insurance and benefits departments regarding utilization of medical treatments can target areas for closer scrutiny. Compliance programs that coordinate information regarding these three statutes therefore may realize great cost-savings. Job hazards can vary across worksites and susceptibility (as science, medicine, and genomic information increasingly suggests) may vary greatly from one individual to the next without regard to prior health status. At the same time, myths and fears that are not based in sound medical evidence can keep employable citizens unemployed. Occupational physicians who sign off on work assignments daily balance both sets of concerns: respecting genuine risks and teasing apart myths and fears about potential harm from the circumstances in a workplace. Thus, the question of whether a job is acceptably safe or too dangerous given specific risks to one individual involves complex evaluation, best made by physicians, following Occupational Safety and Health Administration (OSHA) regulations.
1:109. Partnerships with U.S. private sector and international governance: Memorandum of understanding between the American Society of Safety Engineers and the ILO
Effective June 30 2009, the American Society of Safety Engineers (“ASSE”) and the International Labour Organization represented by the International Labour Office (“ILO) have entered into an agreement that is designed to exchange information and provide for technical cooperation and lending staff to each other, in order to foster the capacity building and the development of partnerships throughout the United States for the purpose of increasing access to information about best practices in safety and health. The agreement is no surprise because the two organizations share the common objective of preventing illness and injuries in the workplace across all industry sectors by advocacy, promoting awareness, knowledge development, information dissemination. Bringing together the expertise in osh legal standards and the fund of knowledge from ASSE practice means that future projects will have a firm basis for the
1See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 198 (1890).
application of relevant standards and industry best practices in the community and workplace.
Working together, ASSE and its partner will undertake new projects to develop and provide products and services to meet these objectives such as a network of experts and fostering knowledge sharing. In particular, the Memorandum of Understanding from June 2009 enables closer collaboration between these organizations regarding: the ability to communicate and promote awareness of the ILO Global Strategy on Occupational Safety and Health and support the objective of Convention 187 (Promotional Framework for Occupational Safety and Health, 2006) through the promotion of continuous improvement of occupational safety and health to prevent occupational injuries, diseases and deaths; each partner serving as Knowledge Brokers in SAFEWORK’s global knowledge and awareness campaign which focuses on promoting the concept of sound management of safety and health at work as the most effective means for achieving strong and sustained preventative-oriented safety and health culture. Knowledge sharing will include information on international standards, national legislation, technical guidance, methodologies, accident and disease statistics, best practice, educational and training tools, research, hazard and risk assessment data. The Parties will organize joint forums, and on invitation, participate in conferences, seminars and exhibitions organized by the other. ASSE will act as a conduit for promoting the ILO Encyclopedia of Occupational Health and Safety and the ASSE Body of Knowledge project. Furthermore, ASSE will, through the ASSE web site, make agreed upon workplace safety and health information and training available to the public, including developing countries and countries in transition. In association with its committee that specifically examines the hazards facing Spanish speaking workers who suffer disproportionately high incidence of injuries and fatalities compared to their peers in the U.S., ASSE will work with SAFEWORK to provide agreed upon technical advisory support for governments, NGOs and/or enterprises in the Pan-American region or elsewhere, for the timely strengthening of their OSH capacities and Spanish language programmes. Additionally, ASSE will share with SAFEWORK its experience and expertise in the areas of young worker safety and health training and supporting small business enterprises to prevent worker injury and illness.
1:110. OSH Act Overlap with state and local laws
State occupational safety and health laws and right-to-know laws in particular appear under a wide variety of headings and are within the jurisdiction of several different departments within a given state. Some of these include health departments, conservation departments, labor departments, and attorney general’s offices. For example, New Jersey’s right-to-know law (which is administered by the Department of Health) enables that department to exercise oversight for training under the Hazard Communication Standard as supplemented by the New Jersey law. In addition to undertaking legal research regarding these laws, counsel should seek the assistance of industrial hygienists and other certified safety professionals in order to understand the nuances of the scientific underpinnings of these requirements. Many states have strong occupational safety and health laws of their own. For example, there is the Corporate Criminal Liability Act in California1 which has already been used to prosecute major corporations for their violation of the employers’ duty to maintain safe and healthful working conditions; New Jersey’s Public
1 Cal. Penal Code §387.
Employees Occupational Safety and Health Act2 exceeds the scope of ordinary OSHA jurisdiction by including within its rubric protection of public employees. The law requires inspections, engineering controls, and other protections and should be of concern to private enterprises who intend to serve in a contractual relationship with the State of New Jersey. Since each state has its own form of enforcement, counsel and members of the in-house compliance team must become familiar with state and local laws.
1:110A. Whistleblowers– State laws
In Terminix v. Byers,1 an injured employee, whose mother filed an OSHA complaint while he was semicomatose following his overexposure to termiticide, was entitled to protection against discrimination under the OSH Act, even though the working conditions were the subject of state laws.
The citation stated that the employer discriminated against the injured employee because he engaged in a protected occupational safety and health activity. The employer contested the citation, and a hearing was held before the state hearing officer. The hearing officer concluded that the employer had discriminated against the injured employee for filing the complaint and the penalty was upheld. The claim was not preempted by United States Environmental Protection Agency (EPA) regulations covering pesticide users’ working conditions.
1:110B. OSH Act §18 Programs: State plans
Insofar as the Occupational Safety and Health Act (OSH Act) provisions are concerned, Congress’ special emphasis upon the need for state programs may be an invaluable tool for implementing occupational safety and health regulations at the local level, but the implementation of programs by OSHA in partnership with the states under Section 18 of the OSH Act is another source of confusion in OSHA’s regulatory and enforcement powers. Pursuant to the OSH Act Section 18, OSHA “shares” its ability to regulate and enforce OSHA laws with over 56 state and territorial agencies that have the right to create a “state plan,” subject to approval by the Secretary of Labor.1 The District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, the trust territory of the Pacific Islands, Wake Island, Outer Continental Shelf Lands, Johnson Islands, and the Canal Zone also have the authority to design and implement their own “state” OSHA plans like those found in the 50 states. Many states have selectively adopted OSHA standards, or incorporated OSHA’s requirements within other standards, tailored to the needs within their own jurisdiction. For example, state plans for New York and Connecticut limit their coverage to public employees. Other states, such as Maryland and Oregon, have developed their own, more comprehensive systems for labeling and hazard communication under their state OSHA plans. State plans have been criticized because they can be used to allow independent agencies to ignore or circumvent OSHA’s standards, rather than replace federal OSHA regulations with more stringent, statewide protections. This can occur when a state nominally accepts federal standards, but then remains lax in its enforcement programs. The Secretary of Labor has complete discretion to decide to withdraw approval of a
2Public Employees Occupational Safety and Health Act, N.J. Rev. Stat. §34:6A-25.
1Terminix Intern., Inc. v. Secretary of Labor, 92 S.W.3d 743, 746 (Ky. Ct. App. 2002).
1 29 C.F.R. pt. 1902.
given state plan, but this power has rarely been exercised. According to the National Safe Workplace Institute3 and reports in the Bureau of National Affairs Occupational Safety and Health Reporter, North Carolina was recently made subject to concurrent jurisdiction, which will result in a stronger role for the federal government than exercised in the past. This was in response to the major fire at Imperial Farms in Hamlet, N.C., which killed 25 workers.4
1:111. State-based emergency planning: New approaches
Another new beachhead for in-house compliance programs will require in-house counsel and compliance staff to establish working relations with public health staff. In this area of jurisprudence, there is emerging a concept of “Legal Preparedness”1 for national public health emergencies. This concept puts lawyers, judges and physicians on call in the event of a public health emergency in order to control the movement of populations in the event of a known outbreak of illness or disease, or in the wake of a bioterrorist event or release of a harmful biological agent. According to the writings of Moulton, legal preparedness has 4 core elements:
(1) laws;
(2) competencies of those who make, implement and interpret laws;
3National Safe Workplace Institute (NSWI) located in Chicago, Illinois was a nonprofit organization designed to advocate for improved working conditions for employees and the families of deceased or injured employees who have suffered an occupationally related death or injury. NSWI is a pioneer in the area of victims’ rights, including advocating increased penalties for OSHA violations.
4Fire Safety Plan Non-Existent Single Door Unlocked, Surviving Imperial Workers Testify, 21 OSH Rep (BNA) 429 (Sept. 8, 1991); Congressional Report on Fatal Fire Slams OSHA for Inattention to State Plan, 21 OSH Rep (BNA) 853. onversation, Joseph Kinney, Executive Director National Safe Workplace Institute Chicago, Illinois, Nov. 1991; Federal OSHA Assumes Authority for Enforcing State Job Safety Program, 21 OSH Rep (BNA) 571.
Without defining the specific parameters of concurrent jurisdiction by OSHA in practice, “In a precedent-setting move the Labor Department Oct. 23 said it would unilaterally assume partial authority for enforcing North Carolina’s workplace safety & health plan.” The move comes in the wake of a September poultry plant fire that killed 25 workers and drew national attention to the State’s job safety program (21 OSH Rep (BNA) 387). USDOL Secretary Lynn Martin said that OSHA will institute “limited concurrent federal enforcement” in North Carolina. Federal OSHA is now responsible for investigating any new complaints of Safety and Health violations by employees. It will look into complaints from workers about employer retaliation for reporting safety and health problems. The State retains authority for investigating pending complaints. It will run the targeted workplace inspection program that identifies high-hazard industries for planned inspections. “We must ensure a safe workplace” Martin said, “North Carolina’s program needs assistance to meet this goal.” John C. Brooks, North Carolina Commissioner of Labor said in a statement, “The activation of concurrent federal jurisdiction in this limited circumstance is not a threat to the State and is no way a take-over of the State OSHA program.”
1See Joel P. Kelly & Theodora R. Lee, What Employment Counsel Need to Know After September 11, 2001, Practising Law Institute Corporate Law and Practice Course Handbook Series, PLI Order No. B0-019S (2002).
(3) information critical to those multi-disciplinary practitioners; and
(4) co-ordination across sectors and jurisdictions.2
Renewed concern for the old areas of disaster relief, now focused on emergency episodes such as a possible bioterrorism event, calls into question the possible impact of emergencies on hospitals and ordinary health care providers. Would they serve voluntarily? Who covers the potential liability when they are not working on behalf of the hospital or their regular practice? If serving as a volunteer do good samaritan rules apply, and if not, what is the standard of care? Are they required to have specialized training outside of their usual realm of expertise? In order to develop guidelines and procedures that could be implemented during emergencies and a chain of command, legal advisors have already been integrated into the planning stages of disaster protection and containment.
These discussions revolve around the use of pre-existing, albeit dormant powers within the public health codes of contemporary legal systems in the states and upheld by the U.S. Supreme Court. One new model, the State Emergency Home Powers Act, calls into action the convening of an advisory group to advise the governor, and then provides the governor with broad powers to draft renewable executive orders of 30 days duration. Such orders include but are not limited to the authority to suspend pharmacy rules or licensing rules in order to allow doctors and health professionals from other states to enter to administer care in times of a disaster or national emergency. CDC’s Clinician Outreach and Communication Activity (COCA) has established partnerships with national clinician organizations to communicate information about disease outbreaks and terrorism events. COCA has two listservs, one for general information and one for information about training opportunities.3
In the interest of coordination, the CDC’s Clinician Outreach and Communication Activity (COCA) has established partnerships with national clinician organizations to communicate information about disease outbreaks and terrorism events. COCA has two listservs, one for general information and one for information about training opportunities.4
1:111. International human rights instruments regarding occupational health
All workers share the right to safe and healthful working conditions, as articulated in
2
Montrece McNeill Ransom, Community Public Health Legal Preparedness: Bridging the Gap between Public Health and Health Care Attorneys (citing A.D. Moulton, et al., What is Public Health Preparedness?, 31 J.L. Med. & Ethics 672-83 (2003)), available at http://www.phppo.cdc.gov/od/phlp/docs/preinitiative_bridgegap.doc (last visited Apr. 15, 2005).
3
For information on CDC’s Clinician Outreach and Communication Activity see http://www.bt.cdc.gov/coca/ (last visited Nov. 1, 2006). For information on the registry, see http://www.bt.cdc.gov/coca/registry.asp (last visited Nov. 1, 2006).
4
For information on CDC’s Clinician Outreach and Communication Activity see http://www.bt.cdc.gov/coca/ (last visited Apr. 15, 2005). For information on the registry, see http://www.bt.cdc.gov/coca/registry.asp (last visited Apr. 15, 2005).
international human rights instruments, regardless of whether their hazards may be confronted in fieldwork, in traditional offices or workplace settings, or at home in the “electronic cottage” used by “telecommuters.” Similarly, medical researchers involved in combating AIDS and HIV infection run the risk of occupational transmission of HIV infection–an occupational hazard that requires close monitoring and possible treatment–regardless of whether their concern about the subject of their work is motivated by scientific curiosity or by sympathy for people who they know personally, who may be afflicted with HIV/AIDS. When these professionals suffer and die from health hazards from their work, their deaths are as work-related as pneumoconiosis. Yet their morbidity and mortality rates are not reflected in regulations governing the statistical analysis of occupational mortality. The absence of clear limits upon work-related injury and illness bespeaks the need for new approaches, to ensure compliance with occupational safety and health goals that are a part of the corpus of international human rights principles. International public law concerning human rights protections for occupational safety and health is expressed in the work of international governmental organizations, and as codified in the United Nations Charter,1 the Universal Declaration of Human Rights;2 as amplified in one major International Covenants on human rights, the International Covenant on Economic, Social, and Cultural Rights, Articles 7 and 12;3 as described in major human rights treaties, such as the International Convention on the Elimination of All Discrimination Against Women;4 as reflected in the work of international governmental agencies, such as the International Labour Office and the World Health Organization.
Protectable human rights to occupational safety and health under international law, within the context of a viable, albeit imperfect, international system should foster compliance with
1
United Nations Charter (UN Charter), signed 26 June 1945, entered into force on 24 October 1945. Reprinted in Center for the Study of Human Rights, Columbia University, Twenty-Five Human Rights Documents at 1-5 (excerpts) (1994). Relevant portions of the UN Charter include: Preamble; Article 13, Chapter IX; Article 55, Chapter X; Article 62.2.
2
Universal Declaration of Human Rights, adopted and proclaimed by General Assembly Resolution 217 A (III) Dec. 1948, Art 23, Sec 1. Reprinted in Human Rights: A Compilation of International Instruments (United Nations, New York, 1978) and in Center for the Study of Human Rights, Columbia University, Twenty-Five Human Rights Documents.
3
International Covenant on Economic, Social, and Cultural Rights, Articles 6 and 7(b) adopted and opened for signature, ratification, and accession by the United Nations General Assembly Resolution 2200 A (XXI) on 16 December 1966, entered into force on 3 January 1976 in accordance with Article 27. Reprinted in Center for the Study of Human Rights, Twenty-Five Human Rights Documents at 1-5 (1994).
4
International Convention on the Elimination of All Discrimination Against Women, adopted December 18, 1979, 19 ILM 33, Art 12 and 28 ILM 1446, Arts 6 and 27.
human rights norms. Recognizing, however, that the absence of traditional fines, penalties or criminal sanctions severely limits the effectiveness of reporting mechanisms that monitor activities designed to protect against immediate dangerous hazards and improve working conditions, there appears to be a need to fashion new tools for compliance in the international system. There has been increased pressure by the U.S. government to make the government of the People’s Republic of China more responsive to a variety of human rights issues, including health concerns.5 In his speeches during his visit to China, President Clinton underscored the importance of health as a part of the regime of human rights, including protection for health in the workplace. It is likely that these values will be reflected in U.S. policy documents, U.S.-China trade agreements, and a variety of relevant international instruments in the future.
1:111A. International human rights instruments regarding occupational health law of human rights reflected in United Nations charter
Protection for the right to health is among the fundamental constitutional principles of many nations.1 In addition, an international consensus exists regarding the importance of providing safe and healthful employment, which is reflected in many international human rights instruments. The concept that occupational safety and health protections are the proper subject of a nation’s sovereign jurisdiction is reflected in laws. Additionally, many United Nations (UN) Member States have passed national or local legislation, which has created entitlements to health services, even among nations that lack constitutionally guaranteed health protections.2 Broader questions regarding the human right to health protections have been addressed, if not fully resolved, in the UN Charter; in the Universal Declaration of Human Rights; Articles 7 and 12 of the International Covenant on Economic and Social Rights; and subsequent standards by the International Labor Organization (ILO) and World Health Organization and other UN-based international organizations. Under the UN Charter,3 the contracting parties state their aspiration
5
See discussion of International Human Rights and the UN/WHO Declaration on Occupational Health For All, Beijing, China 1996.
1
Constitutional rights to health protections exist in Canada, France and many Western European nations.
2
The issue of “entitlements” to health care and health protections was raised in the analysis of the potential for United States ratification of the International Covenant on Economic, Social and Cultural Rights. See Grad, “with the assistance of” [sic] Feitshans, Article 12–Right to Health; Domestic Implications, in Hannum & Fischer, U.S. Ratification of the International Covenants on Human Rights, American Society of International Law, Washington, D.C., at 211-244 (1992).
3
United Nations Charter (UN Charter), signed 26 June 1945, entered into force on 24 October 1945. Center for the Study of Human Rights, Columbia University, Twenty Five Human Rights Documents (1994). The Preamble alludes to subsequent economic and social rights protections, by resolving “to promote social progress and better standards of life in larger freedom … to employ international machinery for the promotion of economic and social advancement of all
to “promote” economic and social advancement and “better standards of life, including the promotion of human rights protections, in Article 13.”4 Using language that recalls the ILO’s Constitutional mandate under the Treaty of Versailles, Article 55 specifically notes the linkage between “creation of conditions of stability and well-being” for peace and “higher standards of living” and “universal respect for, and observance of, human rights and fundamental freedoms.”5 Providing textual analysis for most of these terms, is no easy matter. Furthermore, the debate that ensued regarding the interpretation of these terms, and whether they encompassed all or only a fraction of recognized constitutional rights of UN Member States became highly politicized in the Cold War Era.6
This handful of basic documents articulate the codified principles of fundamental international human rights, but these instruments share the weakness, however, that they offer vague descriptions of protections for life, security of the person and economically based rights employment without directly protecting occupational safety and health values. Each of these documents resonates with a human rights rhetoric espousing the assurance to “adequate” health and related basic human rights to health, but it is difficult to patch together small, if any, consensus regarding the exactly appropriate level of care and the quality of care or “better standards of life” for implementation of these protections. These complex issues question whether the right of individuals to occupational safety and health is the appropriate subject of protection within the rubric of international human rights, and if so, which mechanisms can be deployed to assure adequate occupational safety and health.
1:112. International human rights instruments regarding occupational health reproductive rights
Pursuant to “WHO’s General Authority Mandating Action to Protect Worker Reproductive Health: Implications of the WHO Global Strategy for Health for All Plan of Action
peoples.”
4
UN Charter, Chapter I, Article 13: “1. The General Assembly shall initiate studies and make recommendations for the purpose of … (b) promoting international cooperation in economic, social, … and health fields, and assisting in the realization of human rights and fundamental freedoms for all.”
5
UN Charter, Chapter IX, International Economic and Social Cooperation, Article 55. This concept appears yet again in Chapter X, The Economic and Social Council (ECOSOC), Article 62.2, which enables ECOSOC to make recommendations “for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all.”
6
Henkin & Hargrove, Human Rights: An Agenda for the Next Century-Studies in Transnational Legal Policy No. 26, American Society of International Law, Preface xvi, discussing the impact of the end of the Cold War on the new human rights agenda, and emphasizing implementation noting: “The next decade will have to attend to basic rights that have been accepted in principle but want realization” at xiv.
1996-2001,” 1 the Director-General of WHO has been requested to implement an “Occupational Health for All” strategy that embraces occupational health care in small enterprises, migrant or informal sectors, and women, as a part of the high risk groups with special needs. WHO’s global strategy has been developed through a network of Collaborative Centres, that share “common vision … to mitigate the adverse effects of occupational hazards and to meet emerging problems.” 2
Preserving any and every wage-earner’s health and ability to enjoy reproductive health is essential to family life, to preserving the family, and protecting the next generation for posterity. Such health is tied to the prevention of impairments and the ability to participate in all life activities, as set forth in the “Plan of Action for the Declaration-Position Statement and Proposed Plan of Action for Period up to 2000 and in 21st Century on Workers’ Reproductive Health Protection,” unanimously adopted by the Committee of Experts on Reproductive Health at Work (COERHW). Evidence presented during the conference presentations pointed clearly to the unsatisfactory reproductive health status of certain working populations, especially the declining reproductive health of working women and of children living in areas known for their toxins in the groundwater, drinking water and from environmental pollution. These dangers have had a negative impact on the ability to reproduce and on the health and well-being of the children living in these areas. The Beijing Declaration, signed at the Second Meeting of the WHO Collaborative Centers on Occupational Health Occupational Health for All (1994) was designed to meet “the urgent need to develop occupational health at a time when rapid changes in working life are affecting both the health of workers and the health of the environment in all countries of the world.” Attended by 27 countries, WHO, ILO, UNDP, and ICOH, the Declaration adopted a proposal for action and implementation of its target goals. In particular, Point 9 of the Declaration reaffirms each workers’ “right to know the poten tial hazards in their risks in their work and workplace,” including the development and use of “appropriate mechanisms … in planning and decision making concerning occupational health and other aspects of their own work. Workers should be empowered to improve working conditions by their own action, should be provided information and education, and should be given all the information, in order to produce an effective occupational health response through their participation.”
Of particular relevance to the COERHW, the Beijing Declaration notes, without directly referencing reproductive health or the special needs of pregnant workers, “workers with individual susceptibilities, handicaps and the characteristics affecting their work capacity have a right to job adaptation that fits the work to the worker.” The implication of these provisions in Point 9 is quite clear: The Beijing Declaration provides mechanisms for the transmittal of risk information, including risk assessment, participation in decision making, and the formulations of an appropriate response to dangers. While it is not stated whether these actions and responses are to be taken by individuals acting alone or collectively, and it is also unclear what would be the
1
World Health Assembly, May 19, 1996, WHA 49.12. Reprinted in Vol 10 No. 2, International J of Occ Med & Env H pp 113-139 (1997).
2
See Feitshans, “Is There a Human Right to Reproductive Health?,” Texas J of Women & the Law, Fall 1998.
scope of the information dissemination, or whether all workers have equal needs for information, it is at no point stated or implied that workers who obtain health hazards information and proceed with their work are deemed to have assumed the risks or given their informed consent to accept workplace hazards and their consequences. Beijing Declaration Point 9 holds important ramifications for reproductive health protections and presents an important dilemma: reproductive health protections against hazards from occupational exposures are clearly consistent with the intention and purpose described within the “right to know” discussed in the Beijing Declaration, but are not specifically addressed using express language or suggested by any reference to “Special Protections” for maternal and child care or for preconceptual exposures among potential parents who constitute a peculiarly vulnerable population. Thus, reproductive health and the special needs of pregnant workers, fertile workers and related vulnerable features of sub-populations who may be occupationally exposed to reproductive health hazards can be met within the terms of the Beijing Declaration, but they are not expressly protected by the plain meaning of the language. Conversely, although there is no specific mandate that employers provide reproductive health hazard information or related protections, there is nothing in the text to allow the inference that reproductive health protection is so extraordinary that it should be excluded from the “right to know,” although the scope of the information to be given to workers is unclear.
1:113. International human rights instruments regarding occupational health protections under the Universal Declaration of Human Rights (UDHR)
Security of the Person–UDHR Article 3
Article 3 of the United Nations’ Universal Declaration of Human Rights (UDHR) expressly mentions the need to protect the right to life, liberty, and security of the person without making reference to the environmental or workplace context in which such protections can or should prevail. Additionally, the absence of criminal sanctions or penalties for human rights violations in general, other than gross violations of human rights, such as slavery, genocide, war crimes, apartheid, and absent any standard requiring international penalties for violations of personal security caused by occupational safety and health hazards calls for the exploration of alternatives to traditional law enforcement if occupational safety and health protections will be realized.1
The Cluster of Employment Rights–UDHR Articles 23, 24 and 25
There is a small but significant cluster of rights relating to employment and “favourable
1
The limitations of the international system, due to the absence of an institutional infrastructure for enforcement have been explored by Henkin, International Law: Politics, Values and Functions, General Course on Public International Law Academy of International Law (1990). See, in particular, Chapter III, Compliance With International Law in an Interstate System. Henkin writes at 67-68: “I speak of compliance, not enforcement. Enforcement ordinarily suggests a police force and courts … [Autonomy of states prevents that] compliance is not voluntary. But though not voluntary, compliance will not be coerced. States are induced, not coerced, to comply.” In a first attempt to grapple with the need to overcome this limitation, new methods for compliance are discussed elsewhere.
conditions of work” [sic] listed in the UDHR.2 The principles articulated in three consecutive articles of the UDHR are an outgrowth of history, reflected in older laws. But one problem remains from the standpoint of occupational health analysis: the UDHR is a very important, widely accepted document but it does not specifically address the issues of occupational safety and health. Rather, references to issues surrounding security of person, quality of conditions of work and quality of life allow for an inference that occupational safety and health protections fall in UDHR’s rubric. For example, Articles 23 and 25 concerning the right to work in “favourable conditions of work” are not actually defined.3 Similarly, Article 254 urges the achievement of an “adequate standard of living” and social services, “in the event of disability.” Occupational health and safety hazards certainly impact upon the achievement of these social values. Lastly, the UDHR requires that human rights protections at the worksite ensure the preservation of “human dignity,” which has implications not only for the quality of life, but for the implementation of programs and strategies that prevent degrading working conditions. The UDHR, therefore, provides a vague but workable blueprint for international human rights activity surrounding issues of occupational safety and health. The meaning and enforcement of these rights are amplified by the principles enumerated in the International Covenant on Economic, Social and Cultural Rights, Part III, Article 6 and 7b, which assures all workers the right to “safe and healthy working conditions.”
1:114. International human rights instruments regarding occupational health International Covenant on Economic, Social and Cultural Rights (ICESCR)
Article 7
Article 7 provides greater insight to the meaning of the right to just and favorable conditions of work. “Favorable conditions of work” include terms of remuneration;1 as well as “safe and healthy working conditions.”2 The use of this phrase within the context of favorable
2
Universal Declaration of Human Rights (UDHR), Art 25, Sec 1, UNGA Res 217 A UN Doc A/810 (1948).
3
UDHR, Art 23, Sec 1 alludes to occupational health protections: “Everyone has the right to … just and favorable conditions of work.”
4
UDHR Art 25: “Everyone has the right to a standard of living adequate for the health and well-being of himself [sic] and his [sic] family, including … medical care … and the right to security in the event of … sickness.”
1
International Covenant on Economic, Social and Cultural Rights (ICESCR) Art 7.1(a)(i).
2
See Summers, Article 7 in Hannum & Fischer, U.S. Ratification of the International Covenants on Human Rights, American Society of International Law, Washington, D.C. at 178-184 (1992).
conditions of work lends greater meaning to the Universal Declaration of Human Rights’ (UDHR) protections and demonstrates the clear nexus between other human rights principles and protection of occupational safety and health, as further amplified in ICESCR Article 12 below.
Article 12–Promotion of Industrial Hygiene
Among the United Nations-based international human rights documents, ICESCR Article 12 most clearly and deliberately addresses health, clearest of all human rights instruments regarding the explicit right to protection for “industrial hygiene” and protections against “occupational disease.” Further, Article 12’s discussion regarding improved “industrial hygiene” is consistent with Article 7(b) of the ICESCR, regarding the safe and healthful working conditions. Yet, even this express guarantee of occupational safety and health protections does not offer detailed exposition of the meaning of these rights, nor does it list the possible approaches that could be applied for achieving the ICESCR’s goals. Consistent with the principles articulated in many other international human rights documents, Article 12 employs deliberate language that recalls the World Health Organization’s (WHO) Constitutional notions of health. Article 12 embraces the notion that health concerns and attention to individual well-being includes occupational safety and health. Article 12 reads:
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. (2) The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: … (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases ….3
Significantly, Article 12 also pays direct attention to the impact of occupational disease on health, thereby accepting and giving validity to a sometimes-controversial area of occupational medicine as worthy of human rights protection. Under Article 12 the States Parties recognize the right to physical and mental health proclaimed earlier, though only indirectly, in Article 25 of the Universal Declaration, in the American Declaration, the European Social Charter, and the revised OAS Charter. Additionally, in Paragraph 2, they commit themselves to a minimum of four “steps” to be taken to achieve the “full realization” of this right. It should be noted that Article 12 does not define “health,” but follows the definition stated in the WHO Constitution. According to Grad & Feitshans, Paragraph 1 of the Draft Covenant prepared under the auspices of the Commission on Human Rights, however, did define the term by applying the definition in the WHO Constitution: “a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity.”4 Like the International Labour Organization (ILO) in respect to Articles 6 through 11 of the ICESCR,5 WHO provided technical help in
3
Grad, “with the assistance of” [sic] Feitshans, Article 12–Right to Health; Domestic Implications in Hannum & Fischer, U.S. Ratification of the International Covenants on Human Rights, American Society of International Law, Washington, D.C. at 206-207 (1992).
4 Frank P Grad, “with the assistance of” [sic] Ilise Feitshans, Article 12–Right to Health; Domestic Implications in Hannum & Fischer, U.S. Ratification of the International Covenants on Human Rights, American Society of International Law, Washington, D.C. at 206-207 (1992).
5
Grad at 206-207 (citing Report of the Third Committee at 20).
drafting Article 12. The Third Committee did not accept WHO’s efforts to include a definition, arguing that such detail would be out of place in a legal text; that no other definitions were included in other articles of the Covenant, and that the proposed definition was incomplete.
According to Grad, the words “environmental and industrial hygiene” appear without the benefit of interpretive information the text or the preparatory record. Citing other resolutions of the 1979 World Health Assembly, the report also expresses concern for “the uncontrolled introduction of some industrial and agricultural process(es) with physical, chemical, biological and psychosocial hazards,”6 and notes that the Assembly further urged member States “to develop and strengthen occupational health institutions and to provide measures for preventing hazards in work places.” 7 Repeating a theme expressed in many prior international human rights documents, “[t]he right of everyone to the enjoyment of the highest attainable standard of physical and mental health” is a goal clearly shared by employers, workers and governments of many nations–a goal that unfortunately remains as elusive as it is universal.
1:1115. International human rights instruments regarding occupational health International Convention on Elimination of All Forms of Discrimination Against Women
The Convention on the Elimination of All Forms of Discrimination Against Women,1 Part III, Article 11(a) states that State Parties undertake to ensure the equality of men and women regarding: “The right to work as an inalienable right of all human beings,” and Article 11(f) states: “The right of protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.”2
6
Grad at 207 (citing First Report by the World Health Organization Concerning Rights Covered by Article 12 of the International Covenant on Economic, Social and Cultural Rights, UN Doc E/1980/24, at 2 (1980)).
7
First Report by the World Health Organization Concerning Rights Covered by Article 12 of the International Covenant on Economic, Social and Cultural Rights, UN Doc E/1980/24, at 3 (1980).
1Convention on the Elimination of All Forms of Discrimination Against Women, adopted and opened for signature, ratification and accession by United Nations General Assembly resolution 34/180 on December 18, 1979, entered into force on September 3, 1981 in accordance with Article 27(1). Reprinted in Center for the Study of Human Rights, Columbia University, Twenty Five Human Rights Documents at 48-56 (1994).N.B.: The potential effects of the terms of this Convention on the absence of gender neutral language in UN treaties in general and even in leading human rights documents raises the interesting question whether there the is an identical same legal regime for men and women under international law, a question beyond the scope of this text.
2
Article 11(2)(a) prohibits “sanctions, dismissal on the grounds of maternity leave”3 a subject of profound contemporary and historical conflict and violation of international human rights, under many legal systems of United Nations Member States. For pregnant women and other people who work, these important issues remain unresolved in the jurisprudence of pregnancy, as discussed in the case of UAW of America v. Johnson Controls, Inc. in the USA.4 Article 11(2) attempts to overturn generations of institutional sexism under law, which were an outgrowth of mistaken values regarding women’s ability during pregnancy or while raising a family. Article 11(2)(d) endeavors “[t]o provide special protection to women during pregnancy in types of work proved to be harmful to them.” This provision is unclear regarding the methods of special protection; scope of protected harms; and whether prevention of harm extends rights to the unborn. Also unstated is the standard of proof to make a “special protection” necessary or acceptable and what is the scope of an acceptable protective mechanism.5 Commission procedures, set forth in Article 18, State Parties to the Convention undertake to “report on the legislative, judicial, administrative or other measures which they have adopted to give effect to [these] provisions”6 within one year and at least once every four years, and may indicate impediments to implementation.
1:116. International human rights instruments regarding occupational health International Labour Office (ILO)
Convention on the Elimination of All Forms of Discrimination Against Women, adopted and opened for signature, ratification, accession by United Nations General Assembly resolution 34/180 on December 18, 1979, entered into force on September 3, 1981 in accordance with Article 27(1). Reprinted in Center for the Study of Human Rights, Columbia University, Twenty Five Human Rights Documents at 48-56 (1994).
3
See Feitshans, Job Security for Pregnant Employees: The Model Employment Termination Act, 536 Annals of the Amer Academy of Political & Social Sciences 119 (Nov. 1994).
4
International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 202, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 55 Fair Empl. Prac. Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H. Dec. (CCH) P 29256 (1991). See §1:86 regarding this case and §3:93 regarding nondiscriminatory provisions.
5
See §1:191 for a discussion of Due Process and Reporting Mechanisms Within ILO.
6
Convention on the Elimination of All Forms of Discrimination Against Women, adopted and opened for signature, ratification and accession by United Nations General Assembly resolution 34/180 on December 18, 1979, entered into force on September 3, 1981 in accordance with Arts 18.1(a) and (b). Reprinted in Center for the Study of Human Rights, Columbia University, Twenty Five Human Rights Documents at 48-56 (1994).
At the dawn of the twentieth century, a few principal conferences were convened to discuss such issues as limiting the working hours for women; a weekly day of rest for workers in all industries, methods to reduce accidents, and to assure adequate rest periods under law. The International Association for Legal Protection of Workers was established in Paris in 1900. This organization, called “The Office”1 was the precursor to the ILO. The Office’s conferences at Bern, Switzerland (1905 and 1906) set forth rules of procedure, and two agreements concerning OSH, a general prohibition of the use of phosphorous in the production of matches, and the exclusion of women from night shifts. These agreements sought to address possible effects of fatigue upon the workers’ family, including the need to limit female labor through “protectionist” legislation. The agreements were approved by 20 nations. The ILO was created under the Peace Treaty of Versailles, under the auspices of the League of Nations, until its constitution was amended to incorporate it in the UN. “The protection of the worker against disease and injury arising out of employment” is the second of the ILO’s major objectives under the ILO Constitution.2
ILO principles form the conceptual underpinnings of domestic legislation in many nations and management institutions.3 For example, ILO Model Codes regarding safety protections have served as the blueprint for occupational safety laws and regulations in dock work, transfer of technology to developing nations, civil engineering and heavy industries, and have been used as best practices by employers in nations without occupational health laws.4
The Preamble to the ILO Constitution states, “the protection of the worker against sickness disease and injury arising out of his [sic] employment” as a precondition to “universal and lasting peace.” ILO has also fostered the creation of consistent standards for those safety
1
Barnes, History of the International Labour Organization London, Williams and Norgate (1926); Thomas, The International Labour Office: The First Decade 30 (1931).
2
ILO Constitution.
3
As indicated in the Preamble to the ILO Constitution considers “the protection of the worker against sickness disease and injury arising out of his [sic] employment” as a precondition to “universal and lasting peace.” Improvement of the conditions of living and work is a fundamental component of ILO Conventions and Recommendations. Johnston wrote: “The underlying principle is that certain basic human requirements should be removed from the sphere of international competition to secure certain minimum standards of strength and human dignity.
4
Since 1919, ILO has sought to promote safe working conditions, prevent accidentsand provide workers’ compensation, C.12 (1921). This is evinced in the ILO’s early Conventions, such as: C.32. “Protection Against Accidents”; C.62. “Safety Provisions (Building Convention)”; and in conventions concerning medical examinations for workers and machine guards. By setting forth specific requirements for accident prevention, these conventions served as a precedent for performance standards found in occupational safety regulations worldwide.
problems which cannot be covered by conventions’ provisions without broaching ILO jurisdiction over sovereign nations. For example, ILO Model Codes regarding safety protections have served as the blueprint for occupational safety laws and regulations in dock work, transfer of technology to developing nations, civil engineering and heavy industries, such as: “safety and health in civil engineering work”; “safety health and working conditions in the transfer of technology to developing countries”; “accident prevention on board ship and at sea”; and “safety and health in dock work.”5
Early ILO efforts focused upon accidents in particular, and legal remedies for workers’ compensation, C.12 (1921); C.32. Protection Against Accidents; C.62. Safety Provisions (Building Convention); and in conventions concerning medical examinations for workers and machine guards. By setting forth specific requirements for accident prevention, these conventions served as a precedent for performance standards found in occupational safety regulations in many nations.
C.1556 Article 3(e) adopts the definition of “health,” found in the Constitution of the World Health Organization (WHO).7 This definition is deceptively simple and comprehensive at the same time: it bespeaks the complex interaction between dangerous workplace exposures; individual lifestyle and environmental factors that influence health outcomes.8 This multidimensional approach allows for job hazard analysis of occupational stress and other mental problems.
C.155 requires effective national, regional and workplace mechanisms for implementation and compliance with other ILO standards. C.155 fosters design, implementation and periodic evaluation of national standards. Article 4.1 of C.155 fosters development of a “coherent national policy” concerning occupational safety and health protections. It also obligates ratifying States to promote: research, statistical monitoring of hazardous exposures,
5
ILO Model Codes, provide draft legislation pertaining to occupational safety and health such as: C.32. Protection Against Accidents, (Dockers) Convention (Revised) (1932); C.62. Safety Provisions (Building Convention) (1937); C.77 and C.78. Medical Examinations; C.119. Guarding of Machinery (1963); and C.120. Hygiene (Commerce and Offices) (1964). ILO Conventions and International Standards Regarding Workers’ Compensation include: Convention 12, Workmens’s [sic] Compensation (1921) Revised, C.34 (1934); C.17. Workmens’ Compensation (Accidents) Convention (1925); C.24 and C.25. Sickness Insurance (1927); C.130. Concerning Medical Care and Sickness Benefits; C.152. Concerning Occupational Safety and Health in Dock Work; and C.155. Concerning Conditions in the Working Environment.
6
C.155. Concerning Conditions in the Working Environment.
See ILO Conventions and Recommendations 1919-1966, Geneva, Switzerland (Revised 1981).
7
See §1:193 for a discussion of WHO Constitution.
8
See Mausner & Kramer, Introduction to Epidemiology.
medical surveillance measures, worker education and training. C.155’s broad regulatory framework requires consultation with representative organizations and employers exemptions will be granted, but does not excuse reporting on efforts to achieve “any progress toward wider application.”9
ILO Reporting and Auditing
Alston views the ILO as a model for procedure to “legitimize the declaration of new norms.”10 ILO procedures include: preparation of a preliminary survey of relevant laws among member states; followed by a Governing Body review by the annual ILC and then a questionnaire from the ILO Secretariat to participating States. After a draft has been referred to a technical committee, it is circulated to Member States and the appropriate worker and employer representatives; then revised. The revised draft is submitted to (a) the technical committee and (b) the plenary and drafting committee; and (c) the revised draft instrument is adopted after voting by the ILC. “ILO auditing through international reporting procedures began in 1926 when the Committee of Experts on the Application of Standards was formed. Reporting procedures for monitoring the application of ILO standards include but are not limited to: “Direct contact” missions;11 Commissions of Inquiry to investigate particular cases of egregious violations of ILO Conventions and Constitutional provisions; and regularly scheduled periodic oversight through reporting to Conference meetings, the Governing Body and the Administrative Tribunal. Such mechanisms provide slow but effective incentives for compliance.12
World Day for Safety and Health at Work April 28 Annual Activities
On World Day for Safety and Health, Juan Somavia, the Director General of the ILO, stated:
Today we put the spotlight on protecting the life and health of workers everywhere …. Nearly 90 years ago the protection of workers’ lives and health was set out as a key objective in the founding charter of the Organization. Today, rapid technological change and a fast-paced and globalized economy bring new
9
C.155, art. 2.3.
10
Alston, Conjuring Up New Human Rights: A Proposal for Quality Control, 78 Am J Int’l L 617-618 (1984).
11
For an excellent description of the ILO’s mediation and conciliation role on “direct contact” missions, see Samson, The Changing Pattern of ILO Supervision, 118 International Labour Rev 569.
12
Ruda, Those Who Turn Principles Into Reality, World of Work, The Magazine of the ILO, No. 10 (December 1994). ILO Convention 87 (Freedom of Association) and 98 (Right to Organize Collectively) was written into the Gdansk agreements between the Polish government and the union, Solidarity. “Neither the Committee of Experts nor the Conference’s Committee on the Application of Standards may impose sanctions of any kind, though their conclusions are sometimes regarded as political or moral sanctions.
challenges and pressures for all areas of the world of work. Safety and health remain integral elements of the ILO’s Decent Work Agenda. Each year, it is estimated that roughly four per cent of the annual global Gross Domestic Product, or US$1.25 trillion, is lost due to direct and indirect costs of occupational accidents and diseases.13
In the Republic of Korea Korea, this effort has translated into the high-powered promotional effort,14 where the country’s occupational safety and health agency–KOSHA, has launched a number of initiatives to prevent accidents at work.
In an ILO press release:
SEOUL, Republic of Korea (ILO Online) — “Spiderman is in the emergency room … Superman has fallen … what happened?”
These are not quotes from the latest movie featuring the two superheroes.
Last September, the Korea Occupational Safety and Health Agency (KOSHA) launched a two-month online safety campaign to enhance safety consciousness of internet users.
The campaign has opened up various opportunities for participation under the “Everyday Safety Training” slogan, including quizzes, finding hidden hazards, spotting dangerous activities, safety checklists etc.
The humorous banner advertisement on the KOSHA website already caught the attention of thousands of internet users by showing Spiderman hurting himself while swinging from one building to the other and Superman collapsing due to overwork. Along with the online campaign, the Ministry of Labour has created a blog on safety at work.
The campaign reflects the Republic of Korea’s role as one of the lead countries in Asia showing the way to an integrated framework for occupational safety and health (OSH).
The country recently ratified the ILO’s Promotional Framework for Occupational Safety and Health, Convention No. 187 bringing this important international labour standard designed to promote a “preventive safety and health culture” ….
The new movement toward a safer workplace will also be key to the agenda of the 18th World Congress on Safety and Health at Work to be held in Seoul, Republic of Korea, from 29 June to 2 July 2008.
The World Congress is held triennially by the ILO, the International Social Security Association (ISSA) and the hosting organization–this year, the event will be hosted by KOSHA. According to Sur Han-Og, KOSHA’s general manager in charge of preparations for the Congress, it will “completely revolutionize the view of the world on safety and health at work.”

The ILO has been working with a number of countries in the Asian region for the development of national OSH programmes, including Cambodia, China, Laos, Malaysia, the Philippines, Thailand and Viet Nam.
The Organization has also adopted many international OSH standards, which cover a wide range of sectors and generic hazards. Prevention is at the heart of these standards and is embedded in the Promotional Framework for Occupational Safety and Health Convention, 2006 (No. 187) and its accompanying Recommendation (No. 197), which seek to promote a preventative safety and health culture and management systems for safety and health through national policies, systems and programmes.15
13
International Labour Office, Office of the Director-General, Message by Juan Somavia Director-General of the International Labour Office on the occasion of World Day for Safety and Health at Work (April 28, 2008) (discussing cost to the world’s GNP).
14
http://www.ilo.org/global/What_we_do/Events/Campaigns/lang–en/WCMS_091614/index.htm; World Day for Safety and Health at Work 2008, Superman Has Fallen, available at http://www.ilo.org/global/About_the_ILO/Media_and_public_information/Feature_stories/lang–en/WCMS_092158/index.htm.
15World Day for Safety and Health at Work 2008, Superman Has Fallen, available at
1:117. International human rights instruments regarding occupational health World Health Organization (WHO)
WHO Constitution
Fifty-one nations and 13 “nonmember states” attended the first International Health Conference, in New York (1946). According to the World Health Organization’s (WHO) documentation, early projects took a hands-on approach: sending trained health care workers into the field to combat disease and provide health services. Reduction of the incidence and prevalence of communicable diseases, such as: malaria, yaws, tuberculosis, and eventually smallpox and polio, were among the organization’s early goals.1 The WHO Preamble defines “health” using words that have become a widely accepted as the undisputed norm for international health protections: “a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity.”2 Health professionals can diagnose illnesses and measure their incidence3 and prevalence,4 but no other legal instrument so clearly defines health. The scope of this definition has continuously expanded to meet the needs of unexpected health problems, including new threats to occupational safety and health. WHO’s definition of “health” is holistic; it encompasses broad concerns beyond the scope of the workplace, which interact with community and psycho-social determinants of health.
WHO’s constitution also created a flexible organizational structure, developed around main functions of the organization.5 WHO’s Constitution provides an early example of international drafting that created a flexible framework for health compliance.6 This framework has successfully enabled WHO to tackle emerging areas of occupational medicine, such as passive smoking, HIV/AIDS, indoor air quality and occupational transmission of disease.
http://www.ilo.org/global/About_the_ILO/Media_and_public_information/Feature_stories/lang–en/WCMS_092158/index.htm.
1WHO Secretariat The First Ten Years of the World Health Organization, Geneva, Switzerland 157 (1958).
2WHO Constitution, Preamble and Ch 1, Art 1, adopted July 1946, in World Health Organization Basic Documents WHO, Geneva, Switzerland (1978).
3Wilner, et al., Introduction to Public Health, at 331 (7th ed. 1978). The incidence rate of an illness is defined as the number of new cases recorded in a given period of time divided by the number of persons exposed to the illness.
4Wilner, et al. at 332. The prevalence rate is defined as the total number of persons who have an illness at a given time divided by the total number of persons living in the geographic area.
5
WHO Secretariat, The First Ten Years of the World Health Organization, Geneva, Switzerland, at 100 (1958).
6
WHO Secretariat at 47.
WHO’s Health Assembly was vested with quasi-legislative power,7 that has generated international agreements regarding quarantine, immunization policy, to control pandemics such as polio, malaria,8 and promoted the eradication of smallpox. WHO’s Committee structure provides for oversight of states’ efforts toward implementing WHO Standards.
1:118. WHO and ILO collaborate under the global plan of action on workers health
Following the mandate from the Global Plan of Action on Workers Health 2007 (“GPA”), WHO and ILO held the “healthy Workplaces” workshop in October 2009. As adopted unanimously by the 193 Member states of WHO including the U.S.,1 implementation of the GPA requires collecting data about best practices in regional and country health programs, developing better understanding about how to engage stakeholders including for the first time additional international organizations and the private sector, and the development of guidance documents, within a global framework, targeted to employers and to worker representatives, especially regarding lifestyle and health behaviours, elimination of second hand tobacco smoke from workplaces, protection of workers with disabilities, and management strategies. The purpose of these activities includes accumulating lessons learned, identification of key components in healthy workplace programs, and refining the strategy for presenting the best business case for implementation of OSH programs.
1:189. International Organization for Standardization (ISO)
ISO 14000 is a series of generic environmental management standards developed in 1996 by the International Organization for Standardization (ISO). ISO 14000 are internationally recognized standards adopted by companies in order to diminish barriers to trade across borders using voluntary third-party registration of materials, based on process, not performance. Incentives for registration come from marketing advantages, providing multinational corporations a single system to implement everywhere they operate. The 14001 Environmental Management System standard provides a framework for assessing, managing and reducing the liabilities associated with environmental aspects of operations. ISO 14001 specifies organizational activities and environmental management systems that are organized into five groups: commitment and policy, planning, implementation, monitoring and measuring and review and improve. ISO standards place environmental management into the realm of strategic decision in order to reduce risks. ISO 14001 requires an initial review which can serve as a risk assessment tool for determining environmental liabilities. This process will establish a baseline of environmental performance by first identifying the environmental aspects and legal and other requirements. The initial review results are translated into a policy statement, objectives and
7
WHO Secretariat at 47.
8
WHO Secretariat at 97. It should be noted that health care workers dealing with these diseases were also given some protection against occupational transmission, even though the occupational safety and health facets of WHO’s own work was not carefully described in this document.
1
http://apps.who.int/gb/ebwha/pdf_files/WHA60/A60_R26-en.pdf.
targets. Management can use the ISO initial review to guide the organization towards reducing/eliminating hazards. The standard also provides risk management tools in the area of personnel management, documents and records, and the generation of timely and accurate information about the environmental aspects and impacts of organizational operations. ISO14001 requirements for emergency preparedness and response can provide evidence of due diligence about contingency planning and crisis management, and that potential negative impacts of unplanned events will be dealt with appropriately.
1:119. New protection for neurodiversity and physical disabilities
Disability poses profound challenges to the workings and conceptual underpinnings of the apparatus for protecting individuals under international human rights laws. Disability is a universal, ubiquitous and pervasive facet of the human condition: no person lives an entire lifetime devoid of illness, infirmity or physical disability or impediments to their quality of life from genetic conditions or the accidents of nature, daily modern life or war.
Universality is a fundamental cornerstone of all human rights norms, so disability protections, including the freedom from prejudice that harms the implementation of civil rights for persons with disabilities would seem natural, if not positively codified, under human rights norms. But this is not the case. Paradoxically, disability presents the inherent challenge of understanding, accepting and allowing society to benefit from the most individualized of all individual rights. Empirically, protection of the human rights of integrity or security of the person with disability is found in the last corner of human rights’ riddles to be solved in order to achieve equality for all humankind. Disability, although universal in its likely incidence in the lifespan of any given human being, also challenges the operationalization of a fundamental tenet of equality: that every person is the same and consequently, equal rights for all people–men, women and children (as protected in separate international conventions) have equal rights and should be treated the same.1 Everyone is different yet everyone must have the opportunities to be treated the same.
The international human rights law has yet to address several issues such as the respect for differences in sexual orientation or opportunities for people with disabilities. Is this a function of prejudice, stigma and lack of understanding of the gifts among people with disabilities, or is it merely a “hole” in the fabric of the law that can be easily plugged up and filled with text from long-standing human rights norms or the new draft protocol from the United Nations?
The United Nations Draft Convention “On the Rights of Persons with Disabilities”2
1
See Ilise L. Feitshans, Seminar on “Diversity and Human Rights,” Center for the Study of Human Rights, Columbia University (November 1, 2006).
2See United Nations, Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Gen. Assembly Res. A/RES/48/96 (Dec. 20, 1993), available at http:// www.un.org/esa/socdev/enable/dissre00.htm; United Nations, Ad Hoc Committee on a Comprehensive and Integral International Convention on the Rights and Dignity of Persons With Disabilities, Gen. Assembly Res. 56/168 [P 1] (Dec. 2002), available at http://www.ohchr.org/english/issues/disability/convention.htm (accessed Apr. 1, 2005)), UN GAOR, 56th Sess. Agenda Item 119(b), UN Doc A/RES/56/168 (2002). Revised August 2006, Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection
transcends the artificial dichotomy between “civil rights” and “economic and social rights” under international law. Second, the draft protocol supplements the terms of many treaties and conventions and offers an exhaustive exposition of best practices for implementing human rights protections under law.3 Thus the positivist codification of rights is an excellent use of the law as an instrument of social change, and that the remaining battleground is within the hearts and minds of individuals who encounter, and must challenge, the myths to be dispelled about disability in daily life and under law.
Disability is a social construct5 that, if viewed appropriately as a universal facet of the human condition, has the potential to become a powerful weapon for the solidification of human rights constituencies, because it is a cross cutting issue that unites all people: Everyone has a disability, everyone has a gift. Under the theoretical construct of the draft protocol, disability is a social construct, an ancillary of the domination of the able-bodied and the subordination of persons with disabilities.6 Thus, rather then modifying the individuals, the approach calls for modifications of the social and environmental factors that create barriers to the full participation
and Promotion of the Rights and Dignity of Persons with Disabilities, Eighth session, New York 1425 (Aug. 2006); Draft Convention on the Rights of Persons with Disabilities and the Draft Optional Protocol to the International Convention on the Rights of Persons with Disabilities to be adopted simultaneously with the Convention.
3
Based on a Presentation Human Rights: “Protections for Neurodiversity and Physical Disabilities Under International Human Rights Law” (Prepared for Ilise L. Feitshans, Seminar on “Diversity and Human Rights,” Center for the Study of Human Rights, Columbia University (Nov. 1, 2006)).
5
As discussed by Rosenthal and Sundram, “many people are subject to discrimination based upon the improper perception that they have a current or past mental disorder.” Eric Rosenthal & Clarence J. Sundram, International Human Rights In Mental Health Legislation, 21 N.Y.L. Sch. J. Int’l & Comp. L. 469, 469 n.2 (2002) (Thus, the term “mental disabilities” should be read liberally, to encompass those diagnosed with a mental disability and those “perceived as such by medical authorities or others.”).
6
Maya Sabatello, Disability, Cultural Minorities, and International Law: Reconsidering the Case of the Deaf Community, Whittier L. Rev. 1025 (Summer 2005) (“the true, unrecognized source of social bigotry, (is) that literally every woman, child and man walking the earth has a capacity for madness within them, without exception. One variable is the trigger, of which there are perhaps as many variations as there are human beings on the planet. Another is in how the phenomena is apt to manifest itself once the trigger has been pulled–again, such variables are as numerous as is humankind itself. But the basic capacity for a sudden, dramatic shift in perception, belief structure, personal goals, feelings–in fact, the very foundations of a typical life structure–is an attribute shared by all of us, without exception. It is also an attribute that evokes stark terror in most people.”).
of persons with disability.7
This view is consistent the approach taken by the drafters of the draft Convention, who specifically refrained from defining disability, or offering a laundry-list approach to conditions that qualify as a disability. Instead, the purpose wisely states that “Persons with disabilities includes those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” For the purposes of the draft convention, “Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation (which the convention later defined).8
Until the draft protocol of August 2006, it was unclear whether the international community accepted the role of international human rights norms in preventing discrimination against people with invisible disabilities. Is compliance with disability law strictly a matter of Economics? Not always. Some accommodations may have a high up-front cost to meet the needs of the person with a disability, but those accommodations may in the long-term prove to be cost-effective. For example, when assistive technology can provide the answer to the inability to speak in a manner that is understood by the general public in the society at large; when voice activated software can take notes for a student who cannot write due to the lack of fine motor skills or the inability to decode using visual processing. Employers and members of the general public must have the courage to examine closely, from the inside, the systemic reasons for this communication breakdown, in order to improve this situation. Usually the most important accommodations that are needed require changing attitudes, but have low financial costs requiring public information, outreach and developing effective compliance programs.
Young workers, raised and educated with a wider range of opportunities than institutionalized living–thanks to the laws preventing discrimination based on disability–will approach the workforce for the very first time en masse. The field of occupational and environmental epidemiology must pause to consider the implications of this important social change on a mass scale for the future of epidemiological studies for the new generation.
For a generation raised with special education as a right, and taught to advocate for their rights perhaps before they could fully read or write, the impact of the first wave of disabled
7
Aaron A. Dhi, Human Rights Treaty Drafting Through the Lens of Mental Disability: The Proposed International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, Stanford Journal of International Law 181, 182 (Summer, 2005) (citing Graeme Bacque, Psychiatric Survivor, Ctr. for Addiction and Mental Health Empowerment Council, Submission to the Canadian Standing Senate Committee on Social Affairs, Science and Technology “Roundtable on Mental Health” 2 (2003)).
8
Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, Draft Convention on the Rights of Persons with Disabilities, Eighth Session, New York 1425 (Aug. 2006).
youth into the mainstream workforce will have four ramifications for science and health services. First, their mere presence will change the nature of many job descriptions, as only the “essential functions” of the job will be necessary, and jobs will then be custom-tailored to their abilities. This holds important implications for job design and job hazard analysis. Second, the presence of people with disabilities requires a different data set, with new working assumptions adjusted to the special needs of a large segment of the working population that was unlikely to have been employed at all during the era of benchmark studies just a generation before. Third, this will require refinement, if not necessarily a different methodology to tease apart the cause and effect between workplace or environmental exposure and health outcomes. Co-morbidity must be taken into account in a new dimension when measuring the effectiveness of health protection programming, and the new era will see at last the end of the so-called “healthy worker effect.” Fourth, the new workforce that is implicitly unable to read or write with the same level of proficiency as the older generation due to opportunities for people with learning disabilities, visual processing issues or auditory processing impairments will require new strategies for training regarding compliance and prevention; multi-sensory, in order to get the message across.
This is the greatest challenge for the new generation of epidemiology and the occupational, environmental and public health sciences. It is an exciting opportunity to bring together the disciplines of the health sciences, policymaking, and law. And, it is a time for innovative thinking and pro-active discussion of existing best practices in corporate compliance as well as labor standards under employment law, in order to operationalize the goals of laws preventing discrimination based on disability.
1:120. Health Insurance Portability and Accountability Act– Criminal sanctions and the U.S. Sentencing Guidelines for Organizations
According to Parver,1 HIPAA contains “a number of significant health care fraud and abuse [preventive] provisions.” Included are the creation of a coordinated fraud and abuse control program; expansion of the antikickback provisions of Medicare and Medicaid statutes to other federal health care programs; marked increase in the size and categories for civil penalties; criminalization of health care fraud; and instituting a “death penalty” for organizations that have “two or more” convictions for such crimes. HIPAA further holds health care providers and health insurers accountable for enforcing this penalty by instituting criminal penalties against organizations that have been convicted of HIPAA crimes. Rather than offering one section labeled criminal sanctions, HIPAA has several types of criminal sanction provisions sprinkled throughout the statute, which means that different provisions may be able to stand on their own even if other criminal sanctions are declared invalid by a court of law.
Conscious and deliberate linkage also exists between HIPAA’s plain language and the U.S. Sentencing Commission Guidelines for Organizations. One need only look to the totality of the policy and look at the greater demand of certain types of corporate accountability, with penalties such as fraud and abuse provisions since the early 1990s to understand the broader implications of HIPAA’s revolutionary approach to health insurance outlined in its provisions. There is a deliberate policy of a “two-tiered approach” to preventing corporate crime under the Sentencing Guidelines, which were sponsored by the same Senator Kennedy (who authored
1Parver, “Recent Congressional Activities Regarding Fraud and Abuse in Health Care,” Conference Materials Health Care Fraud and Abuse Enforcement, Compliance and Managed Care, New York, 1996.
HIPAA). Under the Guidelines, organizations accused of any corporate crimes, including health care fraud and abuse, face stiff penalties. However, those penalties can be dramatically reduced following a complex mathematical formula if the errant organization demonstrates that its good faith effort to comply with the law were supported by an “effective corporate compliance program.”2 Under this two-tiered approach, so-called “bad actors” expressly face stiffer penalties. Previous health care fraud and abuse laws lacked this layer of accountability. The buzzwords associated with the Sentencing Guidelines–to “prevent, detect, report, and correct” violations or potential violations–are remarkably consistent with the goals of sound preventive health programs.
1:120. Co-ordination with Centers for Disease Control and Prevention to prevent bioterrorism
In October, 2001, several different areas of the United States, reaching from Florida to New York and Washington D.C. were directly impacted by the release of anthrax spores using the U.S. Postal Service as the means of transmission. Many people were shocked that the mechanisms for transmitting mail were so vulnerable to becoming a weapon for transmitting illness. Several people died from the anthrax exposure, hundreds of others were treated with preventive medicines in case they had been exposed, and mail was rerouted and delayed for days. As a result, new screening mechanisms were installed in the U.S. Congress, U.S. Supreme Court, and many other key repositories of mail or other information. A further consequence of these events was the sound of a new word on people’s lips: “bioterrorism.”
In truth, however, bioterrorism from anthrax exposures that brought unfortunate incidents and fear of disease to the houses and workplaces of many people were not new to people who work in the field of occupational health compliance and disaster planning. For years, the Centers for Disease Control and Prevention (CDC) had been grappling with the potential of this very problem, although the expected virus to be used to create bioterrorism problems was smallpox. Since the eradication of smallpox through the carefully orchestrated efforts of every nation on earth under the auspices of the World Health Organization was officially announced in 1977, public health officials and occupational health compliance personnel were worried about bioterrorism problems. World Health Assembly Resolutions governing smallpox vaccination are credited with the eradication of the disease.1 In addition to a raging legal controversy regarding
2See Ilise L. Feitshans, The Corporate Compliance Extravaganza: Corporate Compliance Featured in Three Continuing Legal Education Programs, Metropolitan Corp. Couns. (1996), reprinted in 5 Corp. Conduct Q. 1 (1996) and Preventive L. Rep., (1996); Ilise L. Feitshans et al., Caremark International Inc.–Directors’ Obligation to Assure Compliance With Governmental Regulation, Metropolitan Corp. Couns. 4 (1997); Ilise L. Feitshans, Corporate Compliance Programs: An Effective Shield Against Civil Penalties, with Saunders & Murphy BNA Healthcare Fraud Rep. (1997), reprinted in Feitshans, Bringing Health to Work, (1997) and Of Carrots, Sticks and Good Corporate Citizens: The United States Sentencing Commission Symposium, Corp. Conduct Q., (1996).
1W.H.A. Res. 18.38, 18th World Health Assembly (1965); W.H.A. Res. 11.54, 11th World Health Assembly (1958). The full text of these resolutions is available from the World Health Organization’s Web site at: http://www.who.int. The reader is advised to first click on “Governance,” then “WHO Policy Documentation,” then “Search Infobases.” The text for the World Health Assembly resolutions can be found in “World Health Assembly Resolutions and
the working definition of eradication and whether new reports of incidents of exposure or cases treated could destroy the eradication program, the question of what to do with existing quanti ties of the virus. These preconditions suggested to many in the field of occupational safety and health and public health programming that the failure to discuss bioterrorsm openly or to institute response procedures in the event of an outbreak of the disease was simply courting disaster. There remained concern also about security for the reserves of smallpox vaccines. These fears were heightened in the late 1990’s, when several stores of the vaccine disappeared after the demise of the government of the Soviet Union. There were only two laboratories that are known to have smallpox virus specimens; the CDC in Atlanta and a Russian state laboratory. But this knowledge did not prevent speculation that other, secret, stocks of the virus might be held in other countries. Although Soviet scientists had worked hard to participate in the international efforts for eradication, the reality of insurrection throughout the former republics of the Soviet Union combined with carelessness regarding the vaccine itself left many people uneasy regarding questions of accidental outbreak or bioterrorism.3
Chapter 2. Establishing and Monitoring a Compliance Program
I. INTRODUCTION–GENERALLY
2:1. Introduction
A well-designed and properly implemented in-house occupational safety and health compliance program may enable an enterprise to apply for special OSHA programs, such as STAR, Merit, or other OSHA programs which may provide an exemption from inspections. Even if the in-house compliance program does not qualify for such programs, however, the existence of a well-organized and visibly supported OSHA compliance program can dramatically reduce the likelihood of an OSHA inspection and, if an inspection occurs, there may be a reduced likelihood that violations of OSHA standards will be found. Another major advantage of in-house OSHA compliance programs is that a sound program can identify and prevent potential problems before they cause accidents, long-term injuries or occupational disease. Thus, effective programs both prevent hazardous situations from giving rise to harm and avoid complaints to
Decisions.”
3
The World Health Organization expressed concernover the careless way a Russian clinic discarded smallpox vaccine ampoules, causing the infection of eight children. Children aged six to 12 were diagnosed with a mild form of smallpox. On further reflection … we don’t USE smallpox to inoculate against smallpox. We use vaccinia. Sounds like the “mild form of smallpox” was from vaccinia, a non-extinct infection. Mandell’s Infectious Disease has examples of Generalized Vaccinia and several dermal forms described. ‘Smallpox’ Released From Vaccine (June 20, 2000) (Information is from the Occ-Env-Med L, a Forum discussion group sponsored in part by Duke University Occupational Medicine’s Electronic Community) (Source on File with Author).
OSHA that will lead to inspections, thereby avoiding the expense and loss of corporate goodwill associated with OSHA citations.
OSHA’s Safety and Health Program Management Guidelines (OSHA Management Guidelines) set forth the blueprint for interactive occupational safety and health compliance for modern enterprises.1 The keys to this form of compliance involve management’s written commitment to compliance, along with the allocation of resources towards creating and sustaining a vibrant in-house occupational safety and health compliance team. This part of the manual explores preliminary steps, such as developing in-house procedures for occupational safety and health reporting and recordkeeping, following OSHA’s recordkeeping guidelines. The fundamental steps for creating a compliance team are also discussed.
2:2. Compliance program components– Checklist
There are several compliance tools that can be used as appropriate to help achieve good compliance. The in-house OSHA compliance team must choose those aspects of all the available tools that will be the most suitable to a given set of operations for a given business. This can mean significant variations in methods compared to other similar businesses, but this is not a problem–that is why performance standards are designed to be “flexible.”
A reasonably comprehensive list of these tools is:
• manuals (with access by the Web or CD-ROM and in hard copy) and checklists (see below)
• practical education and regular communication by various means
• identifying, controlling and placing warnings on major danger areas
• legal audits (i.e., identifying and prioritizing applicable laws)
• controls over contractors and distributors (to ensure they don’t put you in breach)
• an effective consumer complaint system
• a good hot-line with whistleblower protection
• effective reporting systems by two streams (see below)
• prompt rectification of all failures of the system
• enforcement, including disciplining of those responsible for breaches
• records, statistics and information technology
• internal reviews
• access to an excellent in-house occupational health service
• on-going medical surveillance
• internal monitoring of specific hazards
• on-going right to know sessions and training in the use of hazardous materials
• easy access to discolor of material safety information at your fingertips.
WARNING! Checklists are a useful servant but a dangerous master. They should be used with discretion, and never without thinking through whether they need updating or are really appropriate. Standard checklists sold commercially especially need to be thought through in the context of your business. By definition, they do not take individual operations into account, and this can be dangerous. Checklists often need to be accompanied by procedures to explain how they are to be used and the relevant standards to be achieved. Without this, a
1
OSHA Safety and Health Program Management Guidelines, 54 Fed. Reg. 3904 to 3916 (1989) (henceforth OSHA Management Guidelines).
See §2:19.
See also §4:8 for complete text of OSHA Management Guidelines.
sign-off on a checklist can be misleading. The biggest single danger of checklists is that they often cause people to stop thinking. This is why discretion, real thought and, often, procedures on how they are to be used is a vital component of these programs. The importance of regular, clear and effective communication by a variety of means is impossible to overstate. It will frequently be the main means of ensuring that people do not forget the system or what they have been taught.
2:3. Key steps for occupational safety and health compliance programs
Detecting, reporting and correcting problems in order to prevent compliance failures in occupational health requires strong and vibrant in-house compliance infrastructures. This section outlines the steps of how to construct in-house compliance programs. This requires a clear and reflexive structure for identifying occupational health problems to prevent future harm, involving job hazard analysis, management commitment and employee involvement. Proactive in-house compliance programs are especially crucial now, when OSHA has taken an aggressive enforcement stance against employers with weak programs.
2:4. Key steps for occupational safety and health compliance programs– Obligations under the Occupational Safety and Health Act of 1970
Under Section 8(e) of Occupational Safety and Health Act of 1970 (OSHA), the Occupational Safety and Health Administration (OSHA) is authorized to inspect working conditions regarding “employment and places of employment.” Various sections of OSHA confer rights upon employees or their representatives to demand inspections; to be present during OSHA inspections; to complain about allegedly unsafe or unhealthful working conditions; to inspect certain records such as “Material Safety Data Sheets” (MSDS) and have access to specific records and exposure information. These rights have withstood challenge in the U.S. Supreme Court.
OSHA also holds employers responsible for ensuring the work environment is safe; these so-called “General Duties” under the Occupational Safety and Health Act of 1970 require employers to provide “employment and places of employment that are free of recognized hazards.” However, OSHA deliberately avoids placing any burden on employees, regarding fashioning preventive strategies or providing the structure of in-house protective mechanisms regarding occupational health and safety. In-house occupational safety and health compliance programs must also embrace the growing body of international law, generated both by international governmental agencies and trade-based nongovernmental organizations.
2:5. Key steps for occupational safety and health compliance programs– The starting points
Effective programs can be a conduit for ensuring the smooth flow of these mandatory disclosures of information, and it also can provide meaningful information to management in order to correct minor problems before they bloom into disasters. Such in-house occupational safety and health programs must be bottomed on a strong and visible written policy that exhibits management’s commitment to compliance with occupational safety and health laws. According to OSHA’s own field directives and the Draft Occupational Safety and Health Program Standard:
• Full support of management must be exhibited;
• Sufficient staff and resources must be dedicated to occupational safety and health compliance issues;
• Internal audits must be conducted at regularly scheduled intervals, and then verified by outside consultants with respected technical expertise to report their findings to OSHA, employees, corporate directors, and the general public.
2:6. The starting points– Management commitment
The cornerstone for any effective compliance system is ongoing, overt commitment to the program from the boardroom to the mailroom. However, commitment is easy to say, but it can be difficult to achieve–it requires more than simply issuing a written compliance philosophy and saying that everyone must follow it. Rhetoric from the top is easily discarded, but the actions send a different message. The best system therefore will go beyond legalistic manuals and lectures.
Information should be packaged in a user-friendly way to the extent necessary to give people a reasonable background, setting the stage for embedding compliance into daily operations. In workplace health questions, discovery of a toxic effect or a potential harm sometimes involves admitting that one simply does not understand the full extent of the problem, then redesigning the work tasks, with the clear result-driven task of solving the problem at hand. Therefore, the best compliance system cannot be reduced to a definite formula, although the new Occupational Safety and Health Program Standard offers invaluable criteria that can be used as a guide to effective programs.
2:7. The starting points– Employee involvement
Maintaining commitment to a program requires real work with the full support of employees from all parts of the in-house staff. This goes beyond training to embrace a small but crucial role to be played by staff in the design and implementation of in-house procedures and policies. Compliance staff can target areas before or after formal complaints, seeking out hazards and potential violations of law, conducting job hazard analysis. Staff can also log the incidence and duration of injuries and illness, providing oversight for required internal auditing, reporting improvements as well as violations to in-house staff, and inform all staff of the hazards and their rights under law.
Ultimately, commitment will be judged by the strength and consistency of in-house enforcement. Turning a blind eye to breaches by powerful managers, or promoting people guilty of serious breaches, is likely to be fatal to the programs. In the cases of DeCoster Egg and Kaspar Wire, the repeated failure to comply with law ultimately cost the employers millions of dollars in fines. Management responsibility and commitment to fulfilling that responsibility is therefore exhibited by including information from compliance staff, middle management and rank and file employees who have the detailed knowledge of operations. The test of this commitment, however, is the manner in which the necessary information is transmitted to employees and their empowerment to act using preventive strategies. For work sites included in the Voluntary Protection Program (VPP), this includes the use of committees that have both management and employee representations, with the understanding that problems can be brought before the committee and management cannot control their decisions or recommendations. Some committees have significant powers, such as powers of inspection. These committees have a sensible goal of bringing workplace knowledge and experience before management, hopefully in an atmosphere that is conducive to finding solutions to arising problems.
VPP
“VPP is an integral part of the toolbox which the Congress has provided to OSHA to accomplish our mission. … we must also continue to recognize and reward employers who go beyond OSHA’s requirements in protecting their employees. Since its inception, VPP has demonstrated its value in advancing this primary goal. We are extremely proud of this program
and are working every day to strengthen it. VPP will continue to have the Department of Labor’s full support »24 according to deputy Assistant Secretary of Labor, Jordan Barab.
A former critic of VPP because he feared it was too gentle in its pressure upon employers who committed harm in the workplace, Barab continued, « Over the past three and a half years, Dr. Michaels and I have met with the Voluntary Protection Program Participants’ Association (VPPPA) board and members on many occasions and visited VPP plants across the country. We’ve been extremely impressed with the health and safety programs at those sites. dedication to workplace safety, as evidenced by the utilization of best practices and implementation of safety and health management systems that are often more rigorous than that required by OSHA standards, as well as an obvious pride in their health and safety achievements. VPP companies are characterized by successful injury and illness prevention programs and labor-management cooperation, which result in excellent injury and illness rates. These employers clearly demonstrate that it is possible to operate a company that is both profitable and serves as a model for businesses and industries in all sectors of the American economy. »
Since 1982, VPP recognizes employers and workers, in both private industry and the Federal Government, who have implemented safety and health management systems and maintained injury and illness rates below the national average for their industries. Through VPP, OSHA works cooperatively with management and labor to prevent occupational injuries, illnesses and deaths. VPP participant worksites maintain comprehensive injury and illness prevention programs that share a number of important elements, including: (1) management commitment and worker involvement; (2) worksite analysis; (3) hazard prevention and control; and (4) training. In our experience, employers who qualify for VPP generally view OSHA standards as establishing a minimum level of safety and health performance; they often go beyond OSHA requirements in protecting their workforce, and involve their employees in all aspects of the health and safety process.
How VPP Works
There is no single correct way to meet the VPP application requirement. In order to participate in VPP, an employer must submit a written application and undergo a rigorous on-site evaluation by a team of safety and health professionals. In addition, union support is required for applicants represented by a bargaining unit. VPP Managers are stationed in each of OSHA’s ten Regional offices to offer advice and guidance on completing the application process. Successful applicants will demonstrate health and safety management systems that work for their specific work activities and hazards. In completing the application process, OSHA encourages employers
24 Jordan Barab, Deputy Assistant Secretary for Occupational Safety and Health, U.S. Department of Labor, Before the Subcommittee on Workforce Protections Committee on Education and the Workforce U.S. House of Representatives June 28, 2012 Citing Levine, D, Toffel, M., Johnson, M. Randomized Government Safety Inspections Reduce Worker Injuries with No Detectable Job Loss, Science 18 May 2012: Vol. 336 no. 6083 pp. 907-911; Haviland, A. M., Burns, R. M., Gray, W. B., Ruder, T. and Mendeloff, J. (2012), A new estimate of the impact of OSHA inspections on manufacturing injury rates, 1998-2005. Am. J. Ind. Med.. doi: 10.1002/ajim.22062, and Foley, M., Fan, Z. J., Rauser, E. and Silverstein, B. (2012), The impact of regulatory enforcement and consultation visits on workers’ compensation claims incidence rates and costs, 1999-2008. Am. J. Ind. Med.. doi: 10.1002/ajim.22084
to submit existing documentation to the extent possible, rather than create a large quantity of new materials. Once an application for VPP has been reviewed and accepted by the Region, an on-site evaluation is generally conducted within six months. If there are no items that need improvement, the applicant typically receives a formal approval letter three to eight months after the on-site evaluation.
Initial approval is valid 30-42 months for a Star site, 18-24 months for a Merit site, and 12-24 months for a Demonstration site. Resource limitations may impact the approval process, including to the review of applications, scheduling onsite evaluations, finalizing onsite evaluation reports, and approving sites. OSHA has been able to meet the goals established in its Operating Plan and Budget for completing new VPP approvals, but recognizes that the length of time for approving new sites is of concern to applicants, and we are working to address this issue. The agency also is working to address the backlog of reapproval evaluations. Because of the VPP’s rapid growth since 2003, reapproval evaluations for a considerable number of VPP participants were due during the last few years. This demand led to a backlog in conducting reapproval visits. OSHA has focused on reducing the reapproval backlog and anticipates eliminating it by the end of 2012.
Generally, an on-site evaluation takes 3 to 5 days and utilizes 2 to 6 staff, including Special Government Employees (SGEs), who are specially-trained private-sector and government employees from existing VPP members and that supplement OSHA’s resources to help bring in new participants and reapprove current participants. On-site evaluations at shipyards, refineries, or other sites with activities that fall under the OSHA Process Safety Management standard can take considerably longer – up to 10 work days. On-site visits are conducted as part of both the VPP approval and reapproval processes.
Participation in VPP does not diminish an employer’s responsibilities or the rights of employees under the OSH Act. VPP participants are exempt from OSHA programmed inspections while they maintain their VPP status. These worksites still will be inspected, however, when three hospitalizations or a fatality occurs, or when employees file a formal complaint about workplace hazards. If an onsite evaluation reveals a hazard that endangers the health and safety of employees, the onsite evaluation team must add the hazard to a written list of uncontrolled identified hazards. If the VPP participant cannot correct the identified hazard before the conclusion of the onsite evaluation, then the hazard will be assigned as a 90-day item. If a VPP participant refuses to correct the noted hazard, the worksite in violation is referred to OSHA enforcement for an inspection and appropriate remedial measures, including sanctions, fines, and termination from the program.
OSHA currently approves qualified employer VPP sites for participation in one of three programs : STAR, MERIT or Demonstration.
Star, provides recognition for companies that demonstrate exemplary achievement in the prevention and control of occupational safety and health hazards and the development, implementation and continuous improvement of their safety and health management system. Worksites in the Star program have achieved injury/illness rates at or below the national average for their industries. These sites are self-sufficient in their ability to control hazards. Star participants are re-evaluated every 3 to 5 years, but their incident rates are reported to OSHA and reviewed annually.
Merit recognizes companies that have developed and implemented good safety and health management systems, but need to take additional steps to achieve Star quality.
Demonstration recognizes companies that operate effective safety and health management systems that differ from current VPP requirements. Demonstration status provides the opportunity for employers to show the effectiveness of alternative methods of achieving safety and health management excellence. For example, employers with Demonstration status can test the potential of a new approach to hazard reduction within VPP. Demonstration status also recognizes the potential for such purposes as exploring the application of VPP in an industry where it isn’t commonly utilized.
As of May 31, 2012, there were 2,374 total active VPP sites (Federal and State) protecting more than 911,000 workers. This figure has more than doubled since 2003. VPP participants can be found across the entire spectrum of American industry – from manufacturing to chemicals, and construction to motor freight transportation, including Federal worksites such as Hanscom Air Force Base in Bedford, Massachusetts.
VPP participants are models for effective employee protection in their respective industries. The most obvious evidence of the program’s success is the impressive reduction in occupational injury and illness rates, as well as reduced workers’ compensation costs and decreased employee turnover. Participants speak often of the “cultural transformation” that often occurs during the VPP application process.
Data shows that site-based non-construction participants’ Total Case Incident Rates (TCIR i.e., the total number of nonfatal recordable injuries and illnesses that occur per 100 full-time employees) of VPP members are 45 percent below the Bureau of Labor Statistics (BLS) rates. The Days Away from Work, Restricted Work Activity, or Job Transfer (DART, i.e., the rate of injuries and illnesses that result in workers having days away from work, restricted work activity, and/or a job transfer) rates are 56 percent below the BLS rates for their respective industries. For site-based construction and mobile workforce participants, TCIR are 60 percent below the BLS rates, and the DART rates are 56 percent below the BLS rates for their respective industries. Fewer injuries and illnesses mean greater profits for employers as workers’ compensation premiums and other costs, such as downtime, are reduced. Industries gain from VPP because VPP participants set an example for other companies. For its part, OSHA also gains a corps of ambassadors who are enthusiastic about the message of safety and health management and who are eager to share their success stories with others.
In light of the success of the Federal VPP, OSHA has encouraged State plans to establish parallel programs. I am pleased to report that all State plans have done so. Although State VPPs are similar to the federal program, they may have different participation categories, processes and criteria. In particular, we note that some States include programs that closely correspond to OSHA’s Star program.
OSHA is also increasing the use of its valuable Special Government Employee (SGE) Program in VPP evaluations. SGEs are employees of VPP firms that assist OSHA in evaluating the worksites of other potential VPP applicants. Prospective SGEs must be approved by OSHA, funded by their companies, and complete a three-day OSHA training course before these qualified volunteers are sworn is as SGEs. VPP worksites and their companies generously support their employees’ SGE participation. As of May 31, 2012, there were 1,277 SGEs. In FY 2011, 63 percent of VPP Evaluation Teams used SGEs. The SGE Program encompasses the
spirit of VPP’s cooperation among industry, labor, and the federal government. This cooperation, in turn, embodies the idea of continuous improvement, which allows SGEs to bring a unique perspective to the team effort and take back to their individual worksites ideas and best practices to further improve worker protections.
To recognize the significant value SGEs bring to VPP and OSHA, each year OSHA presents its National SGE of the Year Award to an SGE who epitomizes and exhibits exceptional support, time, effort, and action in furtherance of VPP. The awardee is actively involved in volunteer activities that benefit the VPP and its stakeholders, and demonstrates outstanding commitment to the VPP ideal of cooperative partnership. The 2011 SGE of the Year Award was presented to Gilbert Aceves, a certified welder, certified electrician, and Production Lead Person at Morton Salt Inc., in Long Beach, California.
VPP Success Stories
The VPP has produced many success stories. Among them is the Nucor Corporation, the largest manufacturer of steel products in North America, which began participating in the program in 2007. When one division in Decatur, Alabama, first applied, the goal was simply to be recognized as a VPP participant. As described by management, however, what actually happened at the plant was an evolution of safety. VPP sparked a process of improvement that turned into the ultimate team-building exercise. Within several years, the TCIR and DART rate were 83 percent and 80 percent, respectively, below the national average for the steel industry. Today, the site’s TCIR is 86 percent below the industry average and the DART is 89 percent below.
Hypertherm, a precision turned product manufacturing company, located in Hanover, New Hampshire, is similarly representative of VPP success, The company, recognized by OSHA Assistant Secretary David Michaels in April 2011, is characterized by: a culture of safety with management leadership and worker involvement, including a company CEO who attends the worksite’s safety council meetings; a priority given to fixing hazards before someone gets hurt; adoption of VPP’s model safety and health management system; and a safety and health team that includes a professional ergonomist, process engineer, wellness staff, and safety coordinator. In significant part because of its safety culture, Hypertherm was voted “Best Place to Work” by Business New Hampshire magazine.
Difficult Decisions
Despite its enormous success, there are serious issues with VPP that we are striving to address. First, in these challenging economic times, OSHA must struggle to meet competing priorities and balance our resources. Make no mistake: the Department of Labor is committed to VPP, as well as OSHA’s other cooperative programs, but like every other Federal agency, we need to make some very hard decisions about how to allocate our limited resources where we will get the most worker protection “bang for our buck.” Our challenge, therefore, is to maintain an active, quality VPP while also providing assistance to small businesses, help for vulnerable workers, support to enable workers to exercise their rights under the law, and an active enforcement program that focuses on the worst offenders – the companies that don’t get the message, continue to ignore the law, and needlessly put workers’ lives in jeopardy.
Regarding the importance and effectiveness of OSHA’s enforcement programs, recent studies confirm the effectiveness of enforcement in ensuring the safety and health of workers. We were very heartened by research from Michael Toffel and David Levine, business school economists at Harvard University and the University of California, respectively, which demonstrates OSHA
workplace inspections not only improve safety, but also save billions of dollars for employers through reduced workers’ compensation costs. The study, entitled “Randomized Government Safety Inspections Reduce Worker Injuries with No Detectable Job Loss1,” reports that companies subject to random inspections by CAL/OSHA showed a 9.4 percent decrease in injury rates compared with uninspected firms in the four years following the inspection. With no evidence of a negative impact on jobs, employment, or profitability of the inspected firms, the decrease in injuries led to a 26 percent reduction in workers’ compensation costs – translating to an average savings of $350,000 per company. Savings were observed among both small and large employers, and, if extrapolated to the full, nation-wide extent of OSHA inspection activities, would amount to savings of roughly $6 billion nationwide. These findings lend support to our belief that OSHA regulatory enforcement save lives while reducing workers’ compensation costs for American businesses.
Other studies examining the effectiveness of OSHA’s enforcement scheme yield similarly encouraging results. In a study of Pennsylvania manufacturing from 1998-2005, John Mendeloff and a group of researchers associated with the RAND Corporation and the University of Pittsburgh2, found that OSHA inspections which resulted in penalties reduced injuries by an average of 19-24 percent annually in the two years following the inspection. And researchers affiliated with the Safety and Health Assessment and Research for Prevention Program of the Washington State Department of Labor and Industries found that Washington State OSHA inspections made a significant contribution to reducing workers’ compensation rates and costs in the year following an inspection3.
On-site Consultation and SHARP
In order to support small businesses that may not be able to afford in-house safety and health expertise or hire an outside consultant, OSHA invests significant resources in the state-based On-site Consultation Programs, which offer free and confidential advice to small and medium-sized businesses who are looking to create or improve their injury and illness programs. In FY 2010, for example, the On-site Consultation program conducted over 30,000 visits to worksites covering over 1.5 million workers nationwide, with priority given to high-hazard worksites. Consultants from state agencies or universities work with employers to identify workplace hazards, provide advice on compliance with OSHA standards, and assist in establishing injury and illness prevention programs.
The On-site Consultation Program’s Safety and Health Recognition and Achievement Program (SHARP) is another particularly effective use of the agency’s resources. SHARP recognizes small employers who operate exemplary injury and illness prevention programs and serve as a model for workplace safety and health. Upon receiving SHARP recognition, OSHA exempts a worksite from programmed inspections during the period that the SHARP certification is valid. You are probably aware that the On-site Consultation program, with its SHARP exemptions from programmed inspections for employers who do the right thing, received a significant increase in funding from Congress in FY 2012. The President has proposed to maintain that increase in his FY 2013 budget request.
Whistleblower Program
We have also found it necessary to increase resources for our Whistleblower program. When the OSH Act was passed, Congress realized that OSHA inspectors would never be able to visit more than a small fraction of the nation’s workplaces in any given year. Thus, the OSH Act relies
heavily on workers to help identify hazards at their workplaces and to work with their employers to control those hazards.
But Congress also understood that workers are not likely to participate in safety and health activities, or report on hazardous conditions, if they fear that they will lose their jobs or otherwise be retaliated against as a result of their activities. For this reason, section 11(c) protects employees from discrimination and retaliation when they report safety and health hazards or exercise other rights under the OSH Act – one of the first safety and health laws to contain a provision for protecting whistleblowers.
Since the OSH Act was enacted in 1970, Congress has charged OSHA with enforcement responsibility for 20 additional whistleblower anti-retaliation statutes. Together, these laws protect employees who report violations of trucking, airline, nuclear power, pipeline, environmental, rail, mass transit, maritime safety, consumer product safety, and securities laws that are of fundamental importance in protecting the health, safety and well-being of all Americans.
Despite the increase in OSHA’s statutory responsibilities, the staff charged with enforcing these laws did not grow significantly until FY 2010, when 25 whistleblower investigators were added to OSHA’s ranks. Since 2010, however, four new whistleblower laws have been added to OSHA’s enforcement program. It is vitally important that American workers feel safe to report threats to their own safety and to public safety, and, if their whistleblowing activities adversely affect their employment, they should not have to wait years for their cases to be heard.
.
2:8. The starting points– Training as required and “beyond compliance”
There is no shortage of training resources concerning occupational safety and health. Courses include the basics, such as OSHA’s own training institute in Des Plaines, Illinois, and short seminars produced by Educational Resource Centers (ERC), funded by the National Institute for Occupational Safety and Health (NIOSH) in affiliation with major universities. There are also more complex courses, including university Certificate Programs, such as those offered by the Cornell University School of Industrial and Labor Relations. Also available are the custom tailored approach of in-house courses, developed by compliance staff or outside consultants. Interactive computer-based training is available for most processes on CD-ROM. Information from OSHA, NIOSH, and related agencies is easily downloaded from the World Wide Web. The selection of the correct admixture of training tools is beyond the scope of this section. OSH Act requires that compliance programs must document training under the Hazard Communication Standard, 29 C.F.R. §1910.1200.
Every employee’s right to complain about unsafe or unhealthful working conditions, and the right to refuse hazardous employment without reprisal is a vital aspect of employee involvement that is not often discussed, but is protected by statute. According to OSHA, there must be, under law and in practice, protection against the employer discriminating or retaliating against a representative or complaining worker under OSHA 11(c). During inspections, the agency may speak with employees and seek evidence of their mistreatment following complaints, so a clear mechanism for accepting complaints without reprisal is doubly useful: both to support the employer’s defense against 11(c) violations and to support the flow of information about hazardous conditions, which should be brought to light through an effective in-house compliance program.
2:09. Reduction of risk–ILO key steps to reducing risk
ILO Convention 187 Promotional Framework Codifies Hard Science into Hard law
The conventional wisdom of industrial hygiene has long dictated a so-called “Hierarchy of Controls.” The guideposts for sound practice have long been accepted in academia and have been adopted by the ILO and are also accepted by many nations as a part of their state or federal occupational safety and health laws. According to the Framework set forth in Convention 187, there are 4 key steps to reduce risks:1 1. Eliminate or minimize risks at the source; 2. Reduce the risk through engineering controls; 3. Minimize the exposure to risk; 4. Minimize the exposure to risk.
1 Eliminate or minimize risks at the source
This important first option aims to remove or minimize risks before they enter the workplace. Manufacturers and suppliers of work equipment and substances can also provide innovative approaches to solving these problems. For example, it may be possible to substitute a hazardous chemical with a less hazardous one that will achieve the same purpose. Asbestos is a very hazardous substance but it can often be replaced with much safer substitutes, and its use has been banned in many countries. As another example, noise and vibration emissions from work equipment can also be much reduced through good design at the manufacturing stages.
2 Reduce the risk through engineering controls
Whether or not risks can be eliminated or minimized at source, they may often be further reduced through effective engineering controls. For example, a dangerous chemical may be contained through the use of sealed drums or self-contained systems that prevent leakage, spills or air contamination. Ventilation also provides protection against risks from harmful substances. For example, nurses and physicians in a hospital operating room can be protected from waste anesthetic gases that may cause adverse effects on reproductive health, using engineering controls that trap the poisons in the air and thereby reduce the level of exposure to toxins. Yet, sound engineering controls work only if properly maintained. Implementing such protective strategies is clearly a managerial decision because both the cost and the decisional authority to put such controls in place cannot come from any one person. Sound engineering controls require input from a multidisciplinary team of highly trained safety and health professionals and workers or their representatives with support from management.
3 Minimize the exposure to risk.
There is no fine line between the minimization of risks and the institution of engineering controls because the effect is the same: by instituting a sound, well-reasoned system, exposure to harmful substances is systematically reduced. For example, restricting the amount of time spent in very noisy environments or operating high vibration tools will also reduce exposure levels (but other measures need to be considered too). Exposure to high levels of radiation can also be controlled by limiting the amount of time spent in defined danger zones. Minimizing risks may involve shortening the time frame for exposure to risk. Badges worn by laboratory staff exposed
1
See International Labour Organization, My Life, My Work, My SAFEWORK (Apr. 28, 2008) (SAFEWORK Publication for the World Day on Safety and Health At Work), available at http/ ilo.org/Safework/safeday/report.
to radiation provide an excellent example of how the risks of exposure can be controlled by monitoring the dose of harmful radiation. To be effective, systems designed to minimize the risks also require well-monitored oversight as part of a management program that does not allow anyone to enter the radiation area without their personal badge, and automatically keeps them out once their badge indicates that they have reached the designated level of exposure to radiation.
4 Provide personal protective equipment, warning signs etc
Providing personal protective equipment, such as dust masks and hearing protectors, is the least reliable form of protection since its effectiveness relies on good training and the proper wearing and maintenance of the equipment and therefore should be used only as a last resort. A respirator cannot provide the same or better protection than a good ventilation system Yet, personal protective equipment may be the only option. For example, no ventilation system can protect fire fighters in an emergency. Warning signs and signals are a simple example of control systems, but they are only useful when they are visible to everyone, clearly written or audible and in a language that everyone understands.
2:11. The starting points– Conclusion: Go back to step one
Occupational safety and health programs should not be viewed as a linear process, but as a cyclical pattern, to be reviewed and revised periodically. The biggest mistake that people make when planning health prevention strategies is the assumption that after they have completed all of their tasks, the job is done. New hazards arise in new circumstances. A change in process, the substitution of a hazardous substance for a different one with other dangerous properties, changes in personnel, and changes in the demand for the product being created or the service being used, are all circumstances that may change working conditions.
II. REGULATIONS IMPACTING COMPLIANCE PROGRAMS
2:12. Voluntary compliance in general
During the first decade of OSHA’s regulatory history, voluntary compliance was viewed, at best, with distrust, and, at worst, as a euphemism for uninspected and unchecked hazards. During OSHA’s second decade, new administrative perspectives in OSHA greeted voluntary compliance and voluntary protection programs with energy and enthusiasm, and as one of several vital examples of government in partnership with management and labor. Although the fruits of these labors are not yet fully realized and some of the regulatory concepts involved in implementing voluntary programs remain untested, the blossoming of these concepts is reflected, although not codified, in OSHA’s guidelines for management, published in early 1989.1
OSHA reflected its increasing recognition of the importance of effective in-house OSHA compliance programs standards by recommending safety and health program improvements in conjunction with inspections and by crafting a regulatory agenda that made employer-initiated identification of hazards and self-inspection the centerpiece of its administrative efforts. OSHA asserts that these programs have reduced occupational deaths and related injuries at substantial cost savings to each employer enrolled in their programs, not to mention the substantial savings of OSHA’s already strained compliance and enforcement resources. On the other hand, the
1
OSHA Management Guidelines, 54 Fed. Reg. 3904 to 3916 (1989). See §2:19.
See also §4:8 for complete text of OSHA Management Guidelines.
effective implementation of voluntary OSHA compliance programs requires greater vigilance and a serious commitment to safety and health protections on the part of each and every employee in a given enterprise.
This notion of effective management for in-house safety and health compliance programs is underscored in OSHA’s regulations discussed in the guidelines, where OSHA has clearly stated that a commitment to occupational safety and health protection must be found in the words of the written policies and the deeds of top level managers.2 The latter implicitly and expressly set the example for line managers and for all employees, regardless of where in the enterprise they are exposed to hazardous conditions. In addition, this commitment to these goals must be sufficiently great so that employees are granted the leeway to implement workplace safety and health rules, whether those rules were devised by enterprise general counsel, working in-house in tandem with a team of industrial hygienists and medical professionals, or were imposed by OSHA after a long and detailed rule-making process.
OSHA has repeatedly expressed its view that employers are encouraged, if not obligated, to go beyond the plain meaning of the OSHA rules and guidelines, by the very words that describe OSHA’s programs. These features of OSHA’s guidelines concerning in-house compliance programs have the benefit of granting employers great leeway to fashion programs of their own choice. However, nothing in OSHA’s guidelines clearly indicates to employers when the application of the employer’s discretion has crossed the line between zeal and overzealous pursuit of the fallacious notion of a zero-risk workplace; in those cases, performance standards could unwittingly enable an employer to create a solution that is more harmful than an underlying problem, or the goal of a safe and healthful employment could be used to undermine civil rights.3
2:13. Voluntary compliance in general– Voluntary guidelines embrace ergonomics in nursing homes
Voluntary guidelines to protect workers in industries with high rates of musculo-skeletal disorders, Labor Secretary Elaine Chao announced that nursing homes will be the first industry to face such regulations.1 This development represents part of a four-pronged ergonomics
2
See §§2:21, 2:22.
3
See International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 55 Fair Empl. Prac. Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H. Dec. (CCH) P 29256 (1991).
1
Press Release, OSHA, Ergonomics Guidelines Announced for the Nursing Home Industry: OSHA Recommends Eliminating Manual Lifting of Residents When Feasible (Mar. 13, 2003), available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=10129; see 6 American Political Network, Politics & Policy Ergonomics: Nursing Homes Targeted for First Guidelines, American Health Line (2002) (number 9).
initiative, which focuses on voluntary guidelines, increased enforcement, research, and assistance.2 Nursing home workers are frequently exposed to significant risks to their own health and safety officials said the agency will start by working with nursing home operators and workers to develop the voluntary guidelines, which will be based in part on a recent settlement between the department and Arkansas-based nursing home chain Beverly Enterprises.3 As part of the agreement, Beverly installed lifting equipment in its 270 facilities. Nursing homes nationwide reported 34,522 lost workdays in 2000 because of back pains, sprains, and muscle tears, exceeded only by the airline and beverage distribution industries. Although OSHA promised to develop guidelines for other industries with high rates of workplace injuries, the announcement rekindles the old controversy of whether so-called toothless guidelines hold any value, as had been debated in the case of guidelines to prevent workplace violence and other non-promulgated regulatory measures.
2:14. OSHA’s Voluntary Protection Programs
To encourage employers and employees to adopt and improve existing safety and health programs, OSHA established Voluntary Protection Programs (VPP) on July 2, 1982. VPP’s regulatory goals included providing recognition for worksites with “exemplary safety and health management”1 in the hope that other enterprises would be inspired to follow their example. OSHA has taken the position that because VPP enterprises are officially excluded from certain OSHA inspections, their high caliber of in-house compliance programs must be models of effectiveness, but whether enhanced compliance will occur in practice remains an open question.
If one measures success by the number of enterprises participating in VPP, then it is successful: 62 sites participated in VPP in 1988 and the number of participating enterprises exceeded 90 by the end of 1991. Some enterprises have consistently participated and performed well since the inception of the program. According to OSHA, these sites experienced lost-time injuries that were approximately one-fifth to one-third the average for their industrial classifications.2 Since VPP participants have injury rates far lower than the average injury rates among their counterparts for their industrial classification, in OSHA’s view, VPP demonstrates
2
Press Release, OSHA, Ergonomics Guidelines Announced for the Nursing Home Industry: OSHA Recommends Eliminating Manual Lifting of Residents When Feasible (Mar. 13, 2003), available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=10129.
3
Beverly Enterprises, Inc., Ergonomic Settlement Agreement (Feb. 26, 2002), available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=CWSA&p_id=843.
1
OSHA, Announcement of Voluntary Protection Programs (VPP), 47 Fed. Reg. 29025.
2
OSHA Management Guidelines, 54 Fed. Reg. 3904 to 3916 (1989), citing unpublished statistics, United States Department of Labor, OSHA, 1988.
that significant injury reduction is possible through positive incentive programs. VPP’s STAR, Merit and related programs require employers to establish and maintain a working relationship with regulators as one component of their effective in-house occupational safety and health compliance programs.
Cited as examples of the success of VPP, OSHA described reports of improved morale and productivity benefits, significantly reduced workers’ compensation and related costs at participating enterprises. For example, OSHA described one 44-employee plant where one manager reported that implementing a single safe work practice resulted in a greater volume of product and fewer rejected products with a cost savings of $265,000 a year.3 This occurred after only three years in the program.
From its inception, VPP, represented the evolution into a new generation of compliance programs. This path has been consistently followed, as stated by Gerry Catanzaro, Acting Chief, OSHA’s Division of Voluntary Programs in 1991:
Employers… use OSHA’s Safety and Health Program Management Guidelines to evaluate their program, to determine where they are strong and where they are weak, and to develop program(s) to maintain the strengths and strengthen the weaknesses. These guidelines developed from OSHA’s experience with the VPP where it has been demonstrated that safety and health program management will provide for a safe and healthful workplace in a cost-effective manner.
This path has been consistently followed, as stated by Cathy Oliver Chief, OSHA’s Division of Voluntary Programs in 1997:
OSHA’s Safety and Health Program Management Guidelines are an excellent resource to focus employers and employees on improving workplace safety and health conditions. Performance-oriented and flexible, the guidelines have been successfully applied to a variety of industries and worksites: small and large, union and non-union. The Voluntary Protection Program (VPP) … recognizes worksites with excellent comprehensive safety and health programs demonstrates the impact the guidelines can have on workers and on the bottom line. VPP works. Experience injury and lost workday caserates are 50% of the national average, Many VPP sites also boast production improvements, reduced absenteeism and lower workers’ compensation costs–a real competitive advantage!
According to OSHA, VPP cost only 1% of the agency’s entire fiscal budget. Although there is controversy surrounding the program, VPP worksites experience injury and lost workday case rates 50% of the national average. Many VPP sites also boast production improvements, reduced absenteeism and lower workers’ compensation costs. In light of the changing workplace, corporate downsizing and redefinition of work and reinvention of OSHA, what is the prospect for VPP for the year 2001 and beyond? Will it be an antiquated model, a “pretty face?”6 Like every OSHA program, VPP has its critics. Skeptics abound on both sides of the labor-management bargaining table, where VPP is erroneously viewed as OSHA’s attempt to put on a pretty face for either too much regulation or too little compliance enforcement. VPP takes criticism from corporations who complain it is not a genuine partnership (because of the power
3
OSHA Management Guidelines, citing Proceedings of Public Information Gathering Meeting on Suggested Guidelines for General Safety and Health Programs, United States Department of Labor, OSHA, Docket No. C-02, p 77 (1988).
6
See More Than Just A Pretty Program: OSHA Voluntary Protection Programs Improve Compliance By Facing Problems Head-On, by Feitshans with assistance from Oliver, Corporate Conduct Quarterly 1997.
relationship for OSHA enforcement in the event of a catastrophic industrial disaster impacting upon health (or safety) and labor), who consistently views VPP as a big-business free ride. Critics charge that VPP is as an alluring idea that cannot be achieved (labor has no faith in this concept); corporate critics said it is inappropriate for small businesses, thereby favoring larger ones; large corporations complain it is difficult to implement with continuity because each of their worksites is different, even though VPP is site-specific or that VPP programs are not sufficiently protective because the worst cases won’t apply. According to Franklin Mirer, Director of Occupational Safety and Health for the International Union of Automobile Workers, “VPP is a flawed program because it misdirects OSHA’s limited resources, but it also has several very serious policy errors. The fundamental error is that VPP is based on a trade of employee rights to OSHA enforcement by employees (by taking the facility out of the inspection schedule), … entry depends upon a low employer-recorded injury rate (an incentive for falsification) and programs require an element of discipline for worker violation of safety rules.”
As this model gains currency in the USA and abroad, Dr. Andrea Taylor, Industrial Hygienist at the International United Auto Workers expresses trepidation regarding the viability of VPP’s approach unless there is strong and active support from employees, especially those who are part of a union. Taylor notes with grave concern “Generally, in order to work effectively as intended, VPPs need a lot of oversight by active unions who can respond when health and safety problems are not addressed. VPPs in non-union work settings are problematic, since in most settings they would tend to be more management oriented with very little input from employees.” 7 New OSHA initiatives such as CCP suggest that VPP’s model may serve not only as a bellweather for future protections regarding occupational health, but also as a model for other compliance programs in the future compliance efforts outside its home agency, whose influence can also transcend international boundaries to have an impact as a model for compliance programs of other nations, by giving a focus and structure to compliance programs beyond the field of occupational safety and health.
2:15. OSHA’s Voluntary Protection Programs– VPP moves forward with new regulations
OSHA, many of the states, members of the safety and health community, insurance companies, professional organizations, companies participating in the Agency’s Voluntary Protection Program, and many proactive employers in all industries have recognized the value of worksite-specific safety and health programs in preventing job-related injuries, illnesses, and fatalities. The effectiveness of these programs is seen most dramatically in the reductions in job-related injuries and illnesses, workers’ compensation costs, and absenteeism that occur after employers implement such programs. To assist employers in establishing safety and health programs, in 1989 OSHA1 published nonmandatory guidelines that were based on a distillation of the best safety and health management practices observed by OSHA in the years since the
7
See More Than Just A Pretty Program: OSHA Voluntary Protection Programs Improve Compliance By Facing Problems Head-On, by Feitshans with assistance from Oliver Corporate Conduct Quarterly 1997.
1
54 Fed. Reg. 3904.
Agency was established. OSHA’s decision to expand on these guidelines by developing a “safety and health programs rule” is based on the Agency’s recognition that occupational injuries, illnesses, and fatalities are continuing to occur at an unacceptably high rate. For example, an average of about 17 workers were killed each day in 1997 in occupational fatalities, and this number does not reflect the estimated 50,000 job-related chronic illness deaths believed to occur annually.
The safety and health programs required by the proposed rule will include at least the following elements: management leadership of the program, active employee participation in the program, analysis of the worksite to identify serious safety and health hazards of all types, and requirements that employers eliminate or control those hazards in an effective and timely way. Many states have to date passed legislation and/or regulations mandating such programs for some or all employers, and insurance companies have also been encouraging their client companies to implement these programs, because the results they have achieved have been dramatic. In addition, all of the companies in OSHA’s Voluntary Protection Program have established such programs and are reporting injury and illness rates that are sometimes only 20% of the average for other establishments in their industry. Safety and health programs apparently achieve these results by actively engaging front-line employees, who are closest to operations in the workplace and have the highest stake in preventing job-related accidents, in the process of identifying and correcting occupational hazards. Finding and fixing workplace hazards is a cost-effective process, both in terms of the avoidance of pain and suffering and the prevention of the expenditure of large sums of money to pay for the direct and indirect costs of these injuries and illnesses. For example, many employers report that these programs return between $5 and $9 for every dollar invested in the program, and almost all employers with such programs experience substantial reductions in their workers’ compensation premiums. OSHA believes that having employers evaluate the job-related safety and health hazards in their workplace and address any hazards identified before they cause occupational injuries, illnesses, or deaths is an excellent example of “regulating smarter,” because all parties will benefit: workers will avoid the injuries and illnesses they are currently experiencing; employers will save substantial sums of money and increase their productivity and competitiveness; and OSHA’s scarce resources will be leveraged as employers and employees join together to identify, correct, and prevent job-related safety and health hazards. OSHA has considered both nonregulatory and regulatory alternatives in the area of safety and health program management.
First, OSHA published in 1989 a set of voluntary management guidelines.2 The guidelines were designed to assist employers in establishing and maintaining programs such as the one envisioned by the proposed safety and health programs rule. Although these guidelines have received widespread praise from many employers and professional safety and health associations, they have not been adequately effective in reducing job-related deaths, injuries, and illnesses, which have continued to occur at high levels. Many of the states have also recognized the value of these programs and have mandated that some or all covered employers establish them; this has led to inconsistent coverage from state to state, with many states having no coverage and others imposing stringent program requirements. Many risks can be reduced by the implementation of safety and health programs, as evidenced by the experience of OSHA’s
2
See §4:8.
Voluntary Protection Program participants, who regularly achieve injury and illness rates averaging one-fifth to one-third those of competing firms in their industries. Other benefits of reducing accidents include enhanced productivity, improved employee morale, and reduced absenteeism. Because these programs address all significant job-related hazards–including those that are covered by OSHA standards as well as those currently addressed by the General Duty Clause–the proposed rule will be effective in ensuring a systematic approach to the control of long-recognized hazards, such as lead, and emerging hazards, such as lasers and violence in the workplace.
For the first time in many years, OSHA issued Revisions to the Voluntary Protection Programs To Provide Safe and Healthful Working Conditions.3 Just over a year after it had issued draft revisions and requested comments from stakeholders4 and the general public5 these final regulations have reorganized the program without undermining its administrative goals.6
VPP and its related programs such as STAR and MERIT have established the efficacy of cooperative action among government, industry, and labor to address worker safety and health issues and expand worker protection. VPP participation requirements focus on three main components: comprehensive management systems, active employee involvement to prevent or control safety and health hazards at the worksite, and ongoing feedback into systems. Employers who qualify generally view OSHA standards as a minimum level of safety and health performance and are encouraged to set their own more stringent standards to promote voluntary compliance for effective employee protection. The Guidelines9 present effective criteria for organizing a managed safety and health program. To maintain consistency in OSHA’s approach to safety and health program management, OSHA reorganized VPP criteria to conform more
3
OSHA, Revisions to the Voluntary Protection Programs To Provide Safe and Healthful Working Conditions. 65 Fed. Reg. 45,649 to 45,663 (July 24, 2000).
4
Public comments submitted to OSHA in response to its October 12, 1999 Notice: OSHA received comments from 15 respondents. These included eight VPP participating companies, two professional associations, two trade associations, two private consultants, and the Voluntary Protection Programs Participants’ Association.
5
Occupational Safety and Health Administration, Voluntary Protection Programs (VPP), draft revisions and requested comments from stakeholders and the general public Federal Register Notice 64 Fed. Reg. 55390, October 12, 1999.
6
See §4:7 for text of revision to the VPP.
9
OSHA’s experience with VPP and other programs led it to publish its voluntary “Safety and Health Program Management Guidelines” (the Guidelines) in the Federal Register on January 26, 1989, 54 Fed. Reg. 3904. See chapters 1 and 3 of this volume.
closely to the Guidelines.
Management Leadership and Employee Involvement; Worksite Analysis; Hazard Prevention and Control; Safety and Health Training continues as one of four basic program elements. The VPP criteria also were rewritten to be easily understood, as required by the President’s “Plain Language in Government Writing” Memorandum of June 1, 1998. Yet, except for a variety of minor changes, the substance of the criteria remains unchanged. For the first time, however, OSHA will consider a worksite’s illness experience in tandem with the workplace injury record when assessing the site’s level of achievement under the auspices of the VPP.
2:10. OSHA’s recording and reporting requirements
Each enterprise must develop a mechanism for recording information regarding injuries and illnesses that have occurred after exposure to hazards on the employer’s premises, or that were caused by circumstances within the employer’s control. Under the OSH Act, reporting and record-keeping ultimately are the responsibility of the employer.1 The law requires employers to act in good faith, when determining whether information is recordable or reportable. Employers and others who make false or misleading statements in records or reports may face criminal penalties.2 For this reason, an effective compliance program should institute several internal procedures to ensure that records and the reports upon which they are based are complete and accurate. OSHA has prepared detailed instructions to assist employers with their record-keeping and reporting obligations3 but effective in-house OSHA compliance program will formalize this process so that reports are automatically triggered each time an injury or illness occurs.
The central components of OSHA record-keeping are embodied in two forms. First, OSHA Form No. 3004 satisfies the employer’s posting requirements by recording the occurrence, extent, and outcome of cases recorded during the year and summarizing the injury and illness experienced in a given year.5 Second, OSHA Form No. 101, Supplementary Record of Occupational Injuries and Illnesses, requires employers to provide additional information for
1
29 U.S.C.A. §657.
2
29 U.S.C.A. §666(g).
3
OSHA, Recordkeeping Guidelines For Occupational Injuries and Illnesses, Washington, D.C., OMB 1220-0029 (Sept. 1986).
4
See §4:16.
5
29 C.F.R. §1904.2(a) “Each employer… shall: (1) maintain in each establishment a log and summary of all recordable occupational injuries and illnesses for that establishment; and (2) enter each recordable injury and illness on the log and summary as early as practicable but no later than 6 working days after receiving information that a recordable injury or illness has occurred.”
each case that has been recorded in the Form No. 300 log. An employer need not use the OSHA Form No. 101, so long as all of the required information is submitted on an equivalent form. For example, alternative forms include but are not limited to: insurance forms, internal occupational safety and health reporting forms generated within the enterprise, and certain state workers’ compensation forms. Variances are also available for those employers who use state forms if those forms do not include all the information required by OSHA.
OSHA’s Chart 1, Guide to Recordability of Cases under the Occupational Safety and Health Act, (Figure 2-1) illustrates an approach favored by the agency for deciding whether an incident requires a written report in OSHA logs. Any injury that (1) requires medical treatment other than first aid, (2) involves loss of consciousness, (3) results in restriction of work, motion or temporary transfer must be recorded. All cases involving one or more fatalities or occupational injuries or illnesses should be recorded within six days, although the precise mechanism for making this determination is not stated by OSHA. Thus, attempting to comply with this requirement may be problematic for line managers and supervisors who are intelligent but may not have the requisite professional training to make medical determinations. This underscores the need for integrated communication by safety professionals and with medical staff and other members of the in-house compliance team in order to ensure the necessary and appropriate flow of information to prevent violation of these sophisticated requirements. In general, it is to an enterprise’s advantage to record an event that may result in harm, rather than risk penalties or fines for incomplete records.
Latent Effects Injuries
OSHA’s recordkeeping and recording guidelines leave unclear how to account for latent effects injuries which may not require medical treatment, restriction of work motion, or transfer to another job within the regulatory window period of six days. Important but slowly emerging effects of occupational hazards, such as eye strain and muscle strain from VDT’s, back problems or repetitive motion injuries may appear after weeks or months of work. Such injuries are not attributable to a particular incident or set of circumstances, and may therefore elude injury and illness reporting. A sensible system of in-house safety and health record-keeping will develop methods to capture such crucial data. It should also be noted that OSHA’s prior use of the terms “he” or “his” on its forms may fall under Title VII scrutiny after International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW v. Johnson Controls, Inc.,6 which requires gender-neutral policies. Employers may therefore prefer alternative forms that use gender-neutral language, such as internal record forms produced by the enterprise so long as the forms require at least the same information as OSHA No. 101 Forms or the OSHA 200 log.
Determining Whether Injury is Work-Related
OSHA’s Chart, Guidelines for Establishing Work Relationship illustrates the essential elements of determining whether an injury or illness is work-related. If the injured individual is
6International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 55 Fair Empl. Prac. Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H. Dec. (CCH) P 29256 (1991).
considered to be an employee, the employer must determine whether the injury or illness must be recorded. OSHA recommends that checks and balances exist in the recording system to ensure complete and accurate reporting and penalties for failure to report. In order to develop the most comprehensive records possible, procedures should be established that will enable injured employees, witnesses or supervisory personnel to add new information to the records. These procedures must be carefully followed, so that they do not sacrifice confidentiality of personnel files. Injury and illness statistics for the enterprise must also be compiled annually and posted in the month of February in a prominent location, such as a safety bulletin board, at the workplace.
Work-Related Fatalities and Multiple Hospitalization Accidents
Work-related fatalities and multiple hospitalization accidents must be reported by all covered employers even if they are exempt from record-keeping requirements.8 Multiple hospitalizations are defined as those involving five or more employees. Note that such reportable events need not include any fatalities. A report must be made to the nearest office of the Area Director of OSHA, United States Department of Labor (or the state agency designated to receive reports in state-plan states) within 48 hours after either the accident or the fatality. The report may be either oral or written, and may be delivered by telephone or telegraph. The information provided must include the circumstances surrounding the accident, the number of fatalities and the extent of any injuries. The OSHA Area Director has the authority to request additional information about the accident, prior to ordering an investigation.
2:11. OSHA’s recording and reporting requirements– Recordkeeping: Includes employer response to OSHA surveys
In Eastern Bridge, LLC v. Chao,1 several complaining companies failed to establish that they were entitled to pre-enforcement judicial review of their challenges to the validity of a survey used by the Occupational Safety and Health Administration (OSHA) to collect injury and illness data from businesses. The companies had brought an action for declaratory and injunctive relief against OSHA officials who tried to collect injury and illness data from companies. The plaintiffs sought a declaration that such data collection was ultra vires. Had there been such a declaration, use of data collected through such surveys would have been enjoined.2 Instead, the Court of Appeals’ decision can be summarized as finding: (1) presumption in favor of administrative review applied to companies’ complaints; (2) pre-enforcement review was not required because judicial review was not precluded; (3) Fourth Amendment claims did not provide basis for allowing companies to avoid exhaustion of remedies; and (4) companies’ request for injunction did not provide basis for subject matter jurisdiction.
The court first attempted to determine whether Congress intended to preclude the district court review of claims in which companies challenged the OSHA’s authority to collect, via
829 C.F.R. §1904.8.
1
Eastern Bridge, LLC v. Chao, 320 F.3d 84, 19 O.S.H. Cas. (BNA) 2161 (1st Cir. 2003).
2
Eastern Bridge, LLC. v. Chao, 2002 DNH 119, 2002 WL 1332515 (D.N.H. 2002), aff’d, 320 F.3d 84 (1st Cir. 2003).
survey, injury and illness data from companies. To do so, the court was required to look for other indicia of congressional intent in light of the absence of explicit language of preclusion in the OSH Act. The court found that the OSH Act offered the opportunity for judicial review, and companies asserting challenges to the validity of the survey were not entitled to avoid the administrative review process. Using criteria from previous cases, the court found that OSHA had not acted in a blatantly lawless manner and that there was no violation of Fourth Amendment’s privacy rights.3 Furthermore, when the companies requested an injunction against OSHA’s use of information obtained through challenged surveys, that request did not provide a basis for subject matter jurisdiction over the case.
Four New Hampshire companies were the plaintiffs in this case: Eastern Bridge, LLC, Isaacson Structural Steel, Inc., Vanguard Manufacturing, Inc., and Monadnock Forest Products, Inc. (“Monadnock”). They claimed collectively and individually that OSHA acted so outside the scope of its mandate that its act of sending out mandatory surveys was ultra vires. The plaintiffs claimed that OSHA acted illegally when it mandated that plaintiffs complete a Data Collection Initiative Survey (“DCI Survey” or “Survey”).4 They argued that OSHA had not promulgated any final regulation requiring employers to maintain the information sought in the DCI Surveys. The United States District Court for the District of New Hampshire granted the defendants’ motion to dismiss, holding that it lacked subject matter jurisdiction over plaintiffs’ claims, which the Court of Appeals affirmed.
OSHA, acting on behalf of the Secretary of Labor first sent the challenged DCI Surveys to various employers in February 1996.5 By March, a consortium of employers filed suit against the Secretary of Labor under the Administrative Procedures Act (APA),6 claiming that the Secretary did not have the regulatory authority to distribute the DCI Surveys.7 The District of
3
See Occupational Safety and Health Act of 1970, §11(a), 29 U.S.C.A. §660(a); 29 C.F.R. §1904.17(a).
4
OSHA uses the DCI Survey to gather injury and illness data about specific establishments. The Survey asks for information about the number of employees at the company, the number of hours the employees worked over a specified period, and the number of injuries and illnesses the employees suffered during that period. Based on this information, OSHA calculates the workplace’s injury/illness incidence rate and decides whether to target the establishment for inspection.
5
American Trucking Associations, Inc. v. Reich, 955 F. Supp. 4, 5, 17 O.S.H. Cas. (BNA) 1881 (D.D.C. 1997).
6
Administrative Procedure Act (APA), 60 Stat. 237 (1946) (enactment repealed) (provisions are contained in revised title: 5 U.S.C.A. §§551 to 559, 701 to 706, 1305, 3105, 3344, 4301, 5335, 5372, 7521).
7
Columbia Circuit held that the OSHA’s DCI Survey violated the APA because OSHA attempted to accomplish its data collection without a final regulation that required employers to complete and return the Survey. Subsequently, the Secretary of Labor promulgated a final regulation8 that explicitly required employers to complete the DCI Survey. “In 2000, OSHA sent a DCI Survey to three of the four plaintiffs seeking information based upon 1999 data. [The] Plaintiffs completed the 2000 DCI Survey,”9 and as a result, two of them were placed on OSHA’s primary inspection list. One of those employers withdrew its consent to inspection, and OSHA then obtained an administrative search warrant from the district court. A motion to quash the warrant was denied. Subsequently, OSHA carried out the inspection and issued Eastern Bridge a citation.10
In 2001, OSHA sent all four plaintiffs a DCI Survey requesting data from 2000. All of the plaintiffs completed the Survey. OSHA placed Eastern Bridge on the primary inspection list and placed the other three plaintiffs on the supplemental inspection list. Because OSHA had already inspected Eastern Bridge that year, it deleted Eastern Bridge from its inspection list … OSHA has not subjected any of the plaintiffs on the supplemental list to an inspection, and there is no indication that any inspection is pending … In April of 2002, before they received their 2002 DCI Surveys requesting data from 2001, plaintiffs brought suit seeking to have the district court declare the DCI Survey ultra vires and the use of information gathered in the DCI Survey illegal. Plaintiffs sought declaratory and injunctive relief, arguing that the DCI Survey violated the OSH Act and the APA because it required plaintiffs to report information that they were not required by regulation to maintain, and that the Survey violated their Fourth Amendment privacy right.11
It should be noted that there is long-standing precedent supporting OSHA’s right to administrative warrants for searches without violating Fourth Amendment privacy rights.12
See discussion and briefs, American Trucking Associations, Inc. v. Reich, 955 F. Supp. 4, 5, 17 O.S.H. Cas. (BNA) 1881 (D.D.C. 1997).
8
Each employer shall, upon receipt of OSHA’s Annual Survey Form, report to OSHA or OSHA’s designee the number of workers it employed and number of hours worked by its employees for periods designated in the Survey form, and such information as OSHA may request from records required to be created and maintained pursuant to 29 C.F.R. 1904; 29 C.F.R. 1904.17(a) (1997).
9
Eastern Bridge, LLC v. Chao, 320 F.3d 84, 87, 19 O.S.H. Cas. (BNA) 2161 (1st Cir. 2003).
10
See §§3:23, 3:100 (discussing inspection schedules).
OSHA has a primary and a supplemental inspection list. Worksites on the supplemental list are only inspected after all of the worksites on the primary list are inspected. Based on the 2000 DCI Survey, Isaacson Structural Steel, Inc. was placed on the supplemental list but was not inspected.
11
Eastern Bridge, LLC v. Chao, 320 F.3d 84, 87-88, 19 O.S.H. Cas. (BNA) 2161 (1st Cir. 2003) (citations omitted).
12
See §1:112 (warrantless inspections).
Even though there is also a host of case law supporting OSHA’s statutory right to collect data in collaboration with the Bureau of Labor Statistics (BLS) and an extensive duty to record injury and illnesses under OSH Act, these plaintiffs argued that 29 C.F.R. §1904.17(b) simply required employers to “report” the information, but did not require them to record and maintain the requested information. In response, OSHA argues that the plaintiffs are required to channel and exhaust their claims administratively pursuant to the OSH Act’s statutorily provided review scheme. The district court dismissed plaintiffs’ action due to lack of subject matter jurisdiction.13
The court reviewed de novo the district court’s dismissal for lack of subject matter jurisdiction because “the question of subject matter jurisdiction in this case focuses on ‘pure (or nearly pure) questions of law.’”14
To determine whether Congress intended to preclude district court review of plaintiffs’ claims, the court examined OSH Act’s indicia of congressional intent.
Due to the similarity between the review provisions in the Mine Act and the OSH Act, we have already found Thunder Basin’s holding–that, in general, Congress intended Mine Act challenges to be initially reviewed administratively–to apply to the OSH Act.15
The court recognized that an administrative agency “may possess greater expertise with respect to the organic statute, agency review can be more informed and thus more expeditious, and scarce judicial resources can be conserved for other areas of pressing concern.” 16 It therefore found that “streamlined agency adjudication and deferential appellate review [encourages] greater compliance by ensuring that penalties are paid reasonably close in time to violations and by deterring frivolous and dilatory challenges.”17
The court also understood that a plaintiff must meet a high burden in order to qualify for one of the exceptions that might unsettle this presumption of initial administrative review, made apparent by the structure of the organic statute, and that to do so requires a strong countervailing
13
Eastern Bridge, LLC v. Chao, 320 F.3d 84, 88, 19 O.S.H. Cas. (BNA) 2161 (1st Cir. 2003) (citations omitted).
14
Eastern Bridge, LLC v. Chao, 320 F.3d 84, 88, 19 O.S.H. Cas. (BNA) 2161 (1st Cir. 2003) (citation omitted).
15
Eastern Bridge, LLC v. Chao, 320 F.3d 84, 88, 19 O.S.H. Cas. (BNA) 2161 (1st Cir. 2003) (citations omitted).
16
Eastern Bridge, LLC v. Chao, 320 F.3d 84, 89, 19 O.S.H. Cas. (BNA) 2161 (1st Cir. 2003) (citation omitted).
17
See §1:53 (Occupational Safety and Health Review Commission); cf. Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 210-11, 114 S. Ct. 771, 127 L. Ed. 2d 29, 16 O.S.H. Cas. (BNA) 1553, 127 Lab. Cas. (CCH) P 10969, 1994 O.S.H. Dec. (CCH) P 30312 (1994) (discussing the similarly worded review scheme in the Mine Act).
rationale.18 The Supreme Court has made exceptions in the past, inter alia, for situations where plaintiffs will effectively receive no review at all,19 where the administrative process is fundamentally flawed because of a pattern and practice of administrative agency abuse,20 where agency behavior is utterly lawless,21 or where further administrative exhaustion is deemed futile.22 Those cases cited by the plaintiffs as precedents, however, involved extreme examples of abuse of governmental discretion, where no notice of statutory requirements and no ground for the exercise of government authority applied. The court therefore reminded plain tiffs that the doctrine of exhaustion of remedies allows them to seek review in the appropriate federal Court of Appeals if they are dissatisfied with the outcome of proceedings. Even with ultimate judicial review, deferred review may not in reality be effective.23 Although the court agreed that one or
18
See Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 212-17, 114 S. Ct. 771, 127 L. Ed. 2d 29, 16 O.S.H. Cas. (BNA) 1553, 127 Lab. Cas. (CCH) P 10969, 1994 O.S.H. Dec. (CCH) P 30312 (1994).
19
See, e.g., Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 678-80, 106 S. Ct. 2133, 90 L. Ed. 2d 623, 13 Soc. Sec. Rep. Serv. 26 (1986) (holding that Congress did not intend to foreclose judicial review where such a finding would result in respondents being left without any forum to adjudicate statutory and constitutional challenges to agency regulations).
20
See, e.g., McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 496-98, 111 S. Ct. 888, 112 L. Ed. 2d 1005 (1991) (holding that the federal district court had jurisdiction over an action in which respondents alleged that the INS had engaged in a pattern and practice of due process violations, and where, if respondents were denied district court review, they “would not as a practical matter be able to obtain meaningful judicial review” of their claims).
21
See, e.g., Oestereich v. Selective Service System Local Bd. No. 11, Cheyenne, Wyo., 393 U.S. 233, 237-39, 89 S. Ct. 414, 21 L. Ed. 2d 402 (1968) (finding that the district court had jurisdiction where the Selective Service Board had acted in a “blatantly lawless manner” and where petitioner’s only alternative was to raise his claim through habeas corpus or in a criminal prosecution).
22
See, e.g., Heckler v. Ringer, 466 U.S. 602, 104 S. Ct. 2013, 80 L. Ed. 2d 622, 5 Soc. Sec. Rep. Serv. 3 (1984) (requiring respondents to pursue “the often lengthy administrative review process” because exhaustion would not be futile).
23
These situations also would reflect extreme circumstances such as: effective review could be cut off in two situations: (1) where the penalty for a violation is set so high that no rational person would dare test the legality of administrative action by refusing to comply, and (2) where the compliance costs are so onerous that complying with the regulation will cause irreparable harm.
both of the scenarios might justify pre-enforcement review, it would depend on the magnitude of the burden and the different review options available to the challenger. It did not find any such extraordinary circumstances applied to the matter at bar. Rather, the court was satisfied that plaintiffs had not alleged “any facts demonstrating that the potential penalty for refusing to complete the DCI Survey is such that no rational actor would test the law.”
The court also noted that the controversial DCI Survey requested information about “the number of employees at the company, the number of hours worked by the employees, and the number of injuries and illnesses the employees suffered during that period, [which] employers were already required by regulation to ‘maintain … a log and summary of all recordable occupational injuries and illnesses.’”24 Similarly, plaintiffs had not made any factual showing that the cost of completing the DCI Survey is so high that it would cause irreparable harm. OSHA conceded that the district court would have jurisdiction if OSHA sought an administrative warrant for an inspection, and plaintiffs moved to quash the warrant on the theory that the warrant was based on illegally collected Survey data. Consequently, the court viewed constitutional claims as a recharacterization of their administrative claim, and would not allow plaintiffs “to circumvent the statutory review process with an agile game of word play”25 and therefore the district court’s dismissal for lack of subject matter jurisdiction was affirmed.
2:12. OSHA 300 logs for recording injury and illness1
For the first time in decades, major changes in the Occupational Safety and Health Administration’s (OSHA’s) recordkeeping rules took effect in several stages, beginning in January 2002.2 These changes include:
24
Eastern Bridge, LLC v. Chao, 320 F.3d 84, 90, 19 O.S.H. Cas. (BNA) 2161 (1st Cir. 2003) (citations omitted). The marginal cost of maintaining the incremental data (number of employees the company employs and the number of hours worked) does not appear to create a burden that causes irreparable harm. Cf. Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (finding federal court jurisdiction because the statute’s provision for a hearing only after plaintiff was deprived of disability benefits could damage plaintiff in a way not recompensable through retroactive payments); Rhode Island Dept. of Environmental Management v. U.S., 304 F.3d 31, 43, 19 I.E.R. Cas. (BNA) 1354, 33 Envtl. L. Rep. 20044 (1st Cir. 2002) (finding subject matter jurisdiction to hear state’s sovereign immunity claim because undergoing an unconsented-to administrative adjudication would itself deprive the state of its “immunity from being haled before a tribunal by private parties”).
25
Eastern Bridge, LLC v. Chao, 320 F.3d 84, 91, 19 O.S.H. Cas. (BNA) 2161 (1st Cir. 2003).
1
The following points can be found on the Occupational Safety and Health Administration’s Web site. Occupational Safety and Health Administration, U.S. Dep’t of Labor, Major Changes to OSHA’s Recordkeeping Rule, available at http://www.osha.gov/recordkeeping/RKmajorchanges.html.
2
• In the service and retail industries, some establishments that were covered under the old rule will not be required to keep OSHA records under the new rule and some formerly exempted establishments will now have to keep records;3
• The partial exemption for employers who had 10 or fewer workers at all times is unchanged;4
• The new forms are easily discernible from older ones, because of their new format and new names: OSHA 300 (Log of Work-Related Injuries and Illnesses), 301 (Injury and Illness Incident Report and 300A (Summary of Work-Related Injuries and Illnesses). As of January 2002, the simplified OSHA 300 Log can be printed on smaller legal-sized paper. The new OSHA Form 301 (Injury and Illness Incident Report) includes more data about how the injury or illness occurred. The new OSHA Form 300A (Summary of Work-Related Injuries and Illnesses) provides additional data to make it easier for employers to calculate incidence rates;5 and
• Flexible new rules encourage employers to keep all the information on computers, at a central location, or on alternative forms, as long as the information is compatible and the data can be produced when needed.6
The most startling change in the procedures has an impact upon substance, however, rather than mere form. Under the old rules, employers were required to report all illnesses, regardless of severity. In an effort to simplify the paperwork associated with this complex reporting apparatus, OSHA eliminated certain reporting requirements, leaving for implementation through compliance programs to decide, When is an injury work-related, and therefore sufficiently severe to require reporting for OSHA recordkeeping? A “significant” degree of aggravation is required before a preexisting injury or illness becomes work-related.7
Additional changes include:
• Exceptions have been added to the geographic presumption of work relationship; cases
See Perkins Coie, Were You Ready for the New OSHA Recordkeeping Rule? Emp. L. Letter (2002).
3
29 C.F.R. §1904.2.
4
29 C.F.R. §1904.1.
5
Occupational Safety and Health Administration, U.S. Dep’t of Labor, Occupational Injury and Illness Recording and Reporting Requirements, 67 Fed. Reg. 44,037 (July 1, 2002), available at http://frwebgate.access.gpo.gov.
6
29 C.F.R. §§1904.29 & 1904.30.
7
29 C.F.R. §1904.5(a).
arising from eating and drinking of food and beverages, blood donations, exercise programs, etc. no longer need to be recorded. Common cold and flu cases also no longer need to be recorded;8
• Criteria for deciding when mental illnesses are considered work-related have been added;9
• Sections have been added clarifying work relationship when employees travel or work out of their home;10
• As of 2002, employers are required to record work-related injuries or illnesses if they result in one of the following: death; days away from work; restricted work or transfer to another job; medical treatment beyond first aid; loss of consciousness; or diagnosis of a significant injury/illness by a physician or other licensed health care professional;11
• New definitions are designed to streamline recordkeeping procedures. For the first time, first aid is defined by treatments on a finite list. Medical treatment now has an open-ended definition: all treatment not on the “First Aid” list is medical treatment;12
• “Light duty” or restricted work cases must be recorded when the injured or ill employee only works partial days or is restricted from performing their “routine job functions” (defined as work activities the employee regularly performs at least once weekly);13
• Following the bloodborne pathogens regulations and related rules, employers are required to record all needlestick and sharps injuries involving contamination by another person’s blood or other potentially infectious material;14
• Musculoskeletal disorders must be recorded if they result in days away, restricted work, transfer to another job, or medical treatment beyond first aid;15 and
8
29 C.F.R. §1904.5(b)(2).
9
29 C.F.R. §1904.5(b)(2).
10
29 C.F.R. §§1904.5(b)(6) & 1904.5(b)(7).
11
29 C.F.R. §1904.7(a).
12
29 C.F.R. §1904.7(b)(5).
13
29 C.F.R. §1904.7(b)(4).
14
29 C.F.R. §1904.8.
15
29 C.F.R. §1904.12.
• The term “lost workdays” is eliminated and the rule requires recording of days away, days of restricted work, or transfer to another job. Also, new rules for counting that rely on calendar days instead of workdays are included.16
2:29. Comparison of 300 logs with former recordkeeping procedures
As of January 2002, employers are required to record work-related injuries or illnesses if they result in one of the following: death; days away from work; restricted work or transfer to another job; medical treatment beyond first aid; loss of consciousness; or diagnosis of a significant injury/illness by a physician or other licensed health care professional.1 For the first time, first aid is defined by treatments on a finite list. Medical treatment now has an open-ended definition: all treatment not on the “First Aid” list is medical treatment.2 Employers must decide for themselves whether musculo-skeletal disorders (MSDs) fit either of these categories. MSDs are no longer a separate category on the log because the Occupational Safety and Health Administration (OSHA) maintains that it had listed them separately as method of collecting data in advance of the ergonomics standard, which is now the subject of further study, and OSHA no longer needs such statistical data.
Annual Summary, which Must be Posted in the Workplace:
(3) Employers must review the 300 Log information before it is summarized on the 300A form.5
(4) The new rule includes hours worked data to make it easier for employers to calculate incidence rates.6
(5) A company executive is required to certify the accuracy of the summary.7
(6) The annual summary must be posted for three months instead of one.8
16
29 C.F.R. §1904.7(b)(3).
1
29 C.F.R. §1904.7(a).
2
29 C.F.R. §1904.7(b)(5).
5
29 C.F.R. §1904.32(a).
6
29 C.F.R. §1904.32(b)(2).
7
29 C.F.R. §1904.32(b)(3).
8
29 C.F.R. §1904.32(b)(6).
Employee Involvement:
(7) Employers are required to establish a procedure for employees to report injuries and illnesses and to tell their employees how to report.9
(8) The new rule informs employers that the OSH Act prohibits employers from discriminating against employees who do report.10
(9) Employees are allowed to access the 301 forms to review records of their own injuries and illnesses.11
(10) Employee representatives are allowed to access those parts of the OSHA 301 form relevant to workplace safety and health.12
In a rare discussion of privacy not related to trade secrets, OSHA has moved forward with an initiative, expressed in these rules, that favors protection of the employee’s right to privacy. Employers are required to protect employee’s privacy by withholding an individual’s name on Form 300 for certain types of sensitive injuries/illnesses (e.g., sexual assaults, HIV infections, mental illnesses, etc.).13 Employers are allowed to withhold descriptive information about sensitive injuries in cases where not doing so would disclose the employee’s identity.14 Employee representatives are given access only to the portion of Form 301 that contains information about the injury or illness, while personal information about the employee and his or her health care provider is withheld.15 Employers are required to remove employees’ names before providing injury and illness data to persons who do not have access rights under the rule.16 Reporting information to the government, employers must call in all fatal heart attacks
9
29 C.F.R. §1904.35(a).
10
29 C.F.R. §1904.36.
11
29 C.F.R. §1904.35(b)(2).
12
29 C.F.R. §1904.35(b)(2).
13
29 C.F.R. §§1904.29(b)(6) to 1904.29(b)(8).
14
29 C.F.R. §1904.29(b)(9).
15
29 C.F.R. §1904.35(b)(2).
16
29 C.F.R. §1904.29(b)(10).
occurring in the work environment.17 However, employers do not need to call in public street motor vehicle accidents except those in a construction work zone.18 Employers do not need to call in commercial airplane, train, subway or bus accidents.19 Employers must provide records to an OSHA compliance officer who requests them.20
Requirements to Record Hearing Loss Modified by OSHA
OSHA issued a final rule on July 1, 2002, which revised criteria for recording work related hearing loss. OSHA’s updated rule on recording hearing loss allows for 25db of hearing loss to occur before it is initially recorded on the logs. Beginning January 1, 2003, an employer need not record hearing loss until a worker has already lost 25 decibels or more of hearing. Once a loss of 25 decibels Finalization of the rules and their implementation ends a 15-year effort by OSHA to revise and update injury and illness recordkeeping requirements largely unchanged since the 1970s.22
2:30. Bureau of Labor Statistics’ reporting requirements– Annual survey of occupational injury and illness
The United States Department of Labor’s Bureau of Labor Statistics (BLS) conducts an annual survey of occupational injury and illness. Data from enterprises that are required to regularly maintain OSHA records are processed separate from records originating from enterprises that are usually exempt as small employers or employers in low-hazard industries. Employers who are contacted are required to participate. An enterprise need not qualify for regular recordkeeping requirements to be included in BLS’s demand for statistical recordkeeping.
Employers who are required to regularly maintain OSHA records are notified that they will be participating in February of the year in which their participation is required. The Occupational Injuries and Illnesses Survey Questionnaire, OSHA Form No. 200-S, utilizes information that is readily available from the log and summary information on the OSHA Form No. 200. For cases which have not been resolved, the employer should report their best estimate of final case resolution. BLS also requests information about the business in which the enterprise is engaged, the number of employees, and the hours worked during the year covered by the
17
29 C.F.R. §1904.39(b)(5).
18
29 C.F.R. §1904.39(b)(3).
19
29 C.F.R. §1904.39(b)(4).
20
29 C.F.R. §1904.40(a).
22
See, for example, Proposed Questionnaire, Draft Forms for Survey on Revised OSHA 200 Log, OSHA 201 Supplementary Record, [Under Review at Office of Management and Budget] BNA Occupational Safety and Health Reproter 3-25-92.
survey. This information is analyzed by Standard Industrial Classification (SIC) Codes to determine the average injury and illness rates, excluding occupational diseases, for key industries. Information reported on the OSHA Form No. 220-S is confidential.
Employers who have been exempted from OSHA coverage and employers in low-hazard industries that are not ordinarily subject to general OSHA inspection may also be included in a BLS survey. Such enterprises are notified in December, one year prior to the time they should report their injury and illness experience, so that they will have the opportunity to establish and maintain accurate records for the year covered by the survey. Such employers are required to keep records using the OSHA Form No. 200. Regularly exempt firms are not required to complete a Supplementary Record of Occupational Injuries and Illnesses, OSHA Form No. 101, nor are they required to post the OSHA Forms during February of the following year, but if an enterprise has been selected for participation in the BLS survey, participation is mandatory by statute. Failure to respond to the survey can result in issuance of a citation under the OSH Act.1
The information collected on the survey is used to develop incidence rates for occupational injuries and illnesses nationwide and by industry. The survey results facilitate intra-industry comparisons, trend analyses, and comparisons based on enterprise size. These results are essential to efforts designed to reduce the levels of occupational injury and illness and for measuring the effectiveness of ongoing programs pertaining to biological monitoring and medical surveillance.
III. STARTING A COMPLIANCE PROGRAM
2:31. Goals of compliance program
Although the responsibilities for developing and implementing in-house safety and health compliance programs are shared by and assigned to members of the compliance team, an effective program ultimately includes all personnel, whether in managerial decision-making and policy, compliance team development, planning training seminars, or implementation of workplace safety and health rules. When OSHA published its draft compliance guidelines it asked questions about five major areas which can serve as the primary purposes of any in-house OSHA compliance program:
(1) alerting decision-makers and subordinate staff about the nature of the risks from hazards;
(2) explaining the value of safety and health programs;
(3) reviewing the suitability of the language used in proposed safety and health management guidelines for a particular enterprise;
(4) applying the appropriate methods for educating staff; and
(5) providing personal and corporate incentives for effective occupational safety and health program management.
Accountability is the heart of managing effective safety and health protection programs. Methods to achieve purpose (5), as suggested by OSHA, include tracking employee performance by offering rewards and incentives for good performance, and corrective discipline for those who violate workplace safety and health rules.
1
29 C.F.R. §1904.9(b).
2:32. Goals of compliance program– Identification of hazards; worksite and job hazard analysis
Accomplishing important compliance goals requires the identification of hazards. OSHA suggests that compliance teams institute and develop a Worksite Analysis. This requires employers and their agents to:
(1) conduct comprehensive baseline worksite surveys for safety and health and periodic comprehensive update surveys;
(2) analyze planned and new facilities, processes, materials, and equipment; and
(3) perform routine job hazard analyses.
The worksite analysis must provide for regular safety and health site inspections, to identify new or previously unrecognized problems and potential hazards, or failures in hazard controls. Employee input regarding the location and nature of obvious hazards is invaluable for this aspect of worksite analysis.
A related analytical tool for detecting occupational safety and health hazards includes job hazard analysis. This approach enables employees, their supervisors, and a health or safety professional to follow the activities of one or more workers, using a video camera and recorder, time measurement equipment, and other basic measuring tools to identify and suggest corrections for workplace hazards.1
2:33. Goals of compliance program– Hazard prevention and control
As OSHA has often stated, hazard prevention and control requires the establishment of special procedures within the enterprise in order to correct or control hazards in a timely manner. OSHA suggests the following measures:
(1) engineering techniques where feasible;
(2) procedures for safe work which are understood and followed by all affected parties as a result of training, positive reinforcement, correction of unsafe performance, and, if necessary, enforcement through a clearly communicated disciplinary system;
(3) provision of personal protective equipment; and
(4) administrative controls, such as reducing the duration of exposure.1
OSHA’s guidelines further suggest that each set of written policies contain adequate mechanisms to follow up accident investigations, or inquire about “close call” incidents. Thoughtful hazard prevention and control will also anticipate those instances where protections do not perform as they should, and will test emergency response systems before emergencies arise. OSHA suggests that on-site medical personnel are another invaluable asset for enterprise-wide safety and health
1
Keyserling, Armstrong & Punnett, Ergonomic Job Analysis: A Structured Approach for Identifying Risk Factors Associated with Overexertion Injuries and Disorders, 6 Applied Occupational & Environmental Hygiene (May 1991).
1
The hierarchy of the measures is obviously not rigid. However, there is broad consensus regarding the primacy of engineering controls. Debate exists concerning the priority of personal protective equipment over administrative controls. Transfers to different worksites can be effective in reducing exposure.
compliance. OSHA suggests that employers establish a medical program which includes the availability of on-site first-aid and of nearby physician and emergency medical care, in addition to the safety and health training that is required by its regulations.
Ongoing programs also require excellent record-keeping so that in-house compliance team members and industrial hygiene auditors can analyze injury and illness trends over time. Gathering the information that is needed to analyze the injury and illness experience in a given enterprise can be incorporated into the routine system of facility and equipment maintenance, which must be implemented to prevent hazardous breakdowns. Oversight for these important functions should be incorporated into the tasks assigned to the in-house OSHA compliance team.
IV. INTERACTIVE COMPLIANCE FOR MODERN ENTERPRISES
2:34. Selling the program
There is a wide spectrum of reasons for developing in-house OSHA compliance programs, ranging from negative disincentives, such as tort liability, OSHA and EPA fines and penalties, and criminal sanctions, including imprisonment, to positive incentives, including cost savings associated with reduced health care costs, insurance costs, and downtime. As the United States Congress Office of Technology Assessment (OTA) noted,1 labor-saving technologies that reduce repetitive-motion injuries frequently achieve cost-savings and increase productivity. Excessive premiums and workers’ compensation costs may motivate an enterprise to develop an OSHA compliance program.2 Avoiding penalties may provide a very compelling reason for strong in-house OSHA compliance programs, but some employers also experience positive rewards as the result of improving safety.3 There are also positive reasons to establish an OSHA compliance program, although these reasons are often less obvious than the negative reasons. Additional rewards of active compliance, as documented by OSHA and in industrial hygiene literature, include improved employee morale, customer goodwill, and enhanced reputation in the business community. For example, Dupont is often cited by business schools and management professionals as an example of a major company whose strong safety record is attributed to an enterprise ethos on the cutting edge of improved OSHA compliance. Dupont reportedly saves $26 million per year in workers’ compensation, compared to the expected costs if their injury and illness record had been merely average for their industry.4 A supplemental benefit of their achievements is the ability to provide technical support and OSHA compliance
1
Preventing Injury and Illness in the Workplace, Office of Technology Assessment (1985).
2
The Washington Post, Feb. 19, 1990, at 10F, col 2. Ottenberg’s Bakers, Inc. of Washington, D.C. adopted a compliance program to reduce insurance premiums and workers’ compensation costs.
3
The Washington Post, Feb. 19, 1990, at 10F, col 2.
4
Greenfeld Management’s Safety and Health Imperative: Eight Essential Steps to Improving the Work Environment 3 (July 1989).
materials for other enterprises via a product line of training seminars, video presentations, safety equipment, and related products that are marketed worldwide.
Traditionally, enterprises with the best compliance programs also have the lowest costs for occupational injury or death, and the best safety records, according to OSHA.5 Other rewards may include reduced absenteeism and reduced employee turnover, lower insurance premiums, and improved productivity. OSHA’s recent thrust towards increased positive incentives for employer compliance has added the benefit that employers who participate in particular OSHA programs may be granted special status, exempting them from OSHA inspections from one to three years, depending upon which program they choose.6 Thus the connection between OSHA compliance and the enterprise’s overall productivity cannot be ignored, and should be brought to the attention of decision-makers throughout the enterprise.
In practice, many enterprises have embarked upon occupational safety and health incentives campaigns, with specific awards or monetary rewards for employees who participate in OSHA compliance programs, or whose work unit is free from accidents or occupational illness for a specified period of time. Everything from Sears and Montgomery Ward gift certificates, to entire catalogs of safety incentive pins, badges, certificates, jackets, and T-shirts are readily available from specialty vendors to stimulate staff participation. So too, training seminars to apprise management of the potential personal and corporate liabilities can be purchased easily to assist in selling the notion of OSHA compliance to top-level managerial staff and every other employee in the enterprise.
You have been asked to start or revamp a compliance program. Maybe it was an officer or a board member afraid of personal liability for not having a program; maybe a senior officer read that this is insurance against fines, punitive damages, and an outraged public; or maybe its the price you have to pay to settle government enforcement charges.7 But what is a compliance program, and what do you need to do?
What is a “compliance program?” A compliance program is a management commitment to play by the rules. But it is not just words; it must be backed up with solid, on-going management and organizational steps to prevent, detect, and correct wrongdoing. The most commonly used standard is in the Federal Sentencing Guidelines for Organizations (the “Guidelines”) which determine sentencing for federal crimes. The Guidelines define the elements of an “effective program to prevent and detect violations of law.” How do I go about starting one, and can I afford it? There is much work required for an effective compliance
5
See OSHA Management Guidelines introduction describing the experience of VPP, 54 Fed. Reg. 3906 (1989).
See complete text of OSHA Management Guidelines at §4:8.
6
See §§2:1 to 2:14.
7
See So They Want You To Start a Compliance Program, by Joseph E. Murphy, Compliance Systems Legal Group, used by permission. The author of this volume would like to express her profound respect and gratitude for Mr. Murphy’s indispensible contributions to this field.
program, and only the highlights can be covered here. However, creating an effective compliance program does not take a fortune or a team of lawyers. There are a number of resources available for help: there are several books, including Kaplan, Murphy & Swenson, Compliance Programs and the Corporate Sentencing Guidelines; periodicals, including Rutgers University’s Corporate Conduct Quarterly; and organizations for networking, including the Ethics Officer Association. The first step is recognizing that you do not have to reinvent things; your program should be customized for your company, but you can adapt tools that already exist in your company or are readily available elsewhere. When it makes sense to obtain special expertise, you may get that on a cost-effective basis outside. What will work best varies by company. Smaller companies generally will need less formality. The amount of effort also depends on your industry, the risks in your business, and your company’s compliance history.
Commitment, not money, is the key for a program’s success, but there are times when money will flow into compliance. After violations occur, companies hemorrhage money to investigate what went wrong and to repair the damage. This can be avoided by taking the smart management steps that constitute a compliance program. What does an effective compliance program need? The Guidelines, issued in 1991, list seven “minimum” steps that are frequently cited by commentators. These standards are a necessary starting point, but they are only part of the story. Their meaning is being fleshed out by practice in enforcement agencies and in various industries. The following are the steps Compliance Systems Legal Group has found belong in any compliance program.
Due diligence. The Guidelines require due diligence, although many lists of compliance steps overlook it. It is the keystone. If you just follow formal steps but do not put your heart into it, your program will not be diligent and will not work.
Risk assessment. Before starting a program, it makes sense to examine the risks your business faces by conducting a liability inventory. What troubles have hit other companies in your industry? Where has your own company had close calls? Some areas of the law cover almost all companies (e.g., EEO, sexual harassment, occupational health, antitrust, copyright infringement). Others are more specialized (e.g., FDA, FAA, NRC, utility regulation). Still others seem specialized, but contain traps for the unwary (e.g., money laundering, Foreign Corrupt Practices Act, Export Control).
Standards and procedures. Of the Guidelines seven steps, having standards and procedures is first on the list. The basic standard should be more than “commit no federal crime”; companies should seek to act with integrity. Companies typically start with codes of conduct, which are useful, but do little in themselves if they are mere words. You also need to examine what, if anything, you do to give such compliance and ethics policies life. What management steps can you take to make the code and policies relevant to everyday life in the business?
Senior personnel in charge. The Guidelines require a senior person or persons to take responsibility for the program. Companies typically have a compliance or ethics officer. Again, this is a starting point. The compliance officer must be respected, and should have real clout. Having the person report to an independent committee of the board helps achieve this goal. But no single person can be the entire compliance program. In addition to a compliance officer, there should be supporting structure, such as a multidepartmental compliance committee. People responsible for the day-to-day work of the compliance program must have the tools, authority and clout to do a difficult job. And at the top of any list, there is the commitment and active support of senior management. If the CEO and the top operating officers walk the talk and
support the program, it will have credibility with employees.
Get it out to the field. This one is not in the Guidelines, but it is included in a variation of the Guidelines standards adopted by the EPA in January 1996 as a measure of a company’s environmental due diligence (hereinafter “EPA standards”). There is a real risk that compliance programs will have little influence outside of headquarters. Attention must be dedicated to this concern. One technique, captured in the EPA standards, is to have managers in the field responsible for their unit’s compliance activities. Remember, too, that each acquisition, joint venture or partnership needs to be included in your compliance work.
Don’t hire or promote crooks. The Guidelines require care in who you hire and promote. For this purpose and to avoid claims of negligent hiring, companies conduct background checks on new hires, and review discipline records before promoting someone.
Communicate effectively–train and inform. Almost anyone who thinks of compliance programs thinks of written guides and classroom training. The Guidelines require something better–communications that work. Does your training give practical advice? Do your written materials get read and understood? This can be done without spending a fortune. If training puts your employees to sleep, it wastes your company’s money. Computer-based, multimedia training may prove to be one of the best potential solutions.
Check what is happening. The Guidelines require steps to ensure your program is effective. These include compliance audits and monitoring, and having a system for employees and agents to report concerns without retaliation for doing so. Under the EPA standards, the efforts must be systematic. For audits to be credible, the auditors need some degree of independence. Not listed specifically in the Guidelines, but necessary for any management program, is to measure what you are doing. Is the training working? Is the program reaching people? Companies use surveys, focus groups and other study techniques to measure the impact of their programs. As for reporting systems, some companies have internal hotlines, and others use outside professional services such as Pinkerton Services.
Consistent discipline and rewards. One glaring omission in the Guidelines standards is that they do not specifically address incentives, evaluations and rewards. They do require a disciplinary system that is consistent and strong enough to deter wrongdoing. Punishment must include failure to detect wrongdoing. Under the EPA standards, a compliance program must also provide incentives that encourage commitment to compliance. It is likely that at least some courts would read a requirement involving incentives and evaluations into the Guidelines.
Respond to violations. The Guidelines do not require perfection; despite compliance programs there will be violations. Companies must respond to those responsibly. For example, they must investigate allegations of wrongdoing, discipline the wrongdoers, stop the violation, and correct the wrongs done. They should also look for the underlying causes of the violations, and improve their preventive steps based on that input. Companies also need to know when and how to go to the government if a problem arises.
Be at least as good as industry practice. No cookie-cutter formula will work for an effective program, and neither will an isolated approach. Under the Guidelines, your program needs to be at least up to industry practice. If everyone else in your industry has a 1-800 hotline, and you do not, you need to explain why what you have works at least as well as what others in the industry have done. Participating in industry practice forums is one way to meet this test, and to obtain valuable advice from your peers. Write it down. EPA’s standards require “accurate and complete documentation” of your program. In the words of one expert, Jeffrey Kaplan, “without documentation, the program never happened.” Be prepared to prove your program to a skeptical
prosecutor.
What do I do when I’m done with these steps? A compliance program is not a model ship that is assembled from a box and put on display. The forms and methods of lawbreaking keep changing and mutating. So, too, a company’s compliance program must keep evolving with the industry and the company. When a compliance program stops developing and responding to change, it ceases to be effective. And what if you do have an effective, state-of-the-art program? Have you considered how you can turn that accomplishment to your company’s advantage? A strong program can reap substantial benefits including saving and possibly even making money.
2:35. Effective corporate compliance programs: An owner’s guide: How to get company support for a compliance training program
In their excellent presentation for the American Corporate Counsel Association (ACCA) Basri and Rosen suggest that support for in-house compliance programs requires a pro-active compliance staff that will:
Recommend training after the company has experienced a costly problem in the area; recommend training managers to comply after a new law is enacted or crisis grabs headlines and has caught senior managers attention independent of (the compliance staff’s) recommendation; volunteer to cover a topic at the next general manager’s meeting; build a dynamic entertaining program and people will want to come.1
They see the cornerstones of such activities as: (1) enthusiasm; (2) knowledge of the industry/company; and (3) knowledge of the law. “It is essential that you engender enthusiasm at all levels of your company–including, most importantly, officers and directors–for having an effective corporate compliance program. This can be done positively by stressing corporate integrity or ethics or negatively through fear of the consequences.” They further state that “Knowledge of your company is critical to creating an effective corporate compliance program. Learn about current, past and recurring problems and issues in your industry and company. Conduct informational interviews with key employees if you are unfamiliar with certain company business practices.”
2:36. Empowering internal compliance constituencies
Despite much discussion about the need for a broad-based in-house OSHA compliance program, one that will draw upon the talents and expertise from different departments within the company, few compliance experts have effectively addressed the issue of relative power within the company. Braithwaite and Murphy articulated the importance of such power, which they call “Clout,” and how that power can be used by internal compliance constituencies to make a difference in the implementation of in-house programs and to enforce in-house OSHA compliance policies.
Braithwaite and Murphy1 state:
1
Basri & Rosen, Effective Corporate Compliance Programs: An Owner’s Guide, How To Get Company Support for A Compliance Training Program at 68, in Course Materials, N.Y. American Corporate Counsel Assoc. Conference, Reengineering the Law Department for the Year 2000, NYC, May 30-31, 1996. Used by permission.
1
Braithwaite & Murphy, Clout and Internal Compliance Systems, Corporate Conduct Quarterly, reprinted in Australian Compliance Professionals Association (ACPA) Compliance News, Vol 1,
A credible compliance program ought to be able to produce a record of top management overruling line managers in favor of backing compliance staff … the CEO’s signature and picture of his or her smiling face on compliance policies are not enough. Only a history of support for compliance in the face of crunch contests between line managers and compliance staff is convincing evidence that the compliance policies will not be discounted according to the philosophy of ‘watch what the bosses do, not what they say’. Informal clout for compliance staff is as important as formal top management backing and formal clout that comes from the compliance officer having a senior position in the organization.
Informal clout can mean presumptions that safety recommendations of the safety staff or environmental recommendations of the environmental staff will be followed unless countermanded from the top. Even senior executives may be politely, but firmly, reminded by compliance staff of corporate policy limiting their intended actions. In organizations with poor compliance records, the presumption is often that compliance staff are to be given a polite hearing and then ignored unless the boss intervenes to insist. Evaluation reports from compliance staff are a written record in well-run organizations. The documentary record on each recommendation must show that it is either implemented or rejected, with specific reasons being given for the rejection, over the signature of a senior manager. The more senior the manager who must sign off on overruling compliance staff recommendations, the less likely that such overruling will occur and greater the clout that resides with the compliance staff …. Essentially, clout derives from access to power. To know how to empower the compliance staff requires understanding of where power resides in each company. It may derive not only from access to the board or CEO, but also from support by others with power in the organization. A vibrant compliance program acts as a system of checks and balances on corporate conduct. But the compliance manager’s success in this context is affected both by the major crunch contests, and by the seemingly small, day-to-day tests of their authority. Are the staff members’ recommendations second-guessed? Is their work reviewed and edited down by layers of management? Are they kept away from senior managers and from major decisions? Do they have inferior office facilities? Are meetings with compliance staff repeatedly postponed for ‘more important matters?’ If the staff is held back or viewed as a mere gadfly, this defeats its ability to act as an effective check on the business’ activities.
For managers who want to know if their compliance programs will really achieve results, and for courts who want to know whether a program is truly diligent and effective, we suggest these factors as tests of the compliance staff’s clout: resources sufficient to do the compliance auditing task; senior manager rank for the compliance officer; routes of corporate communication that work from the compliance staff; direct line to the personnel accountable for solving any particular compliance problem and direct to the chief executive and the audit committee of the board; a documented history of backing for compliance staff against line managers in tests of strength; a documented history of disciplining the managers who ignore the recommendations of compliance staff or drag the chain in acting on them; policies that require implementation of the recommendations of compliance staff unless those recommendations are overruled by the signature of a top management officer; evidence of respect for compliance staff; and a record of rewards, incentives and advancement for effective compliance staff comparable to those for production and sales personnel, and sufficient to attract the best and brightest managers.
2:37. Empowering internal compliance constituencies– Attorneys as compliance officers
Throughout the last decade as OSHA has continually attempted to create partnerships that will balance employer education about occupational safety and health issues with the agency’s obligation to inspect and provide meaningful enforcement, “partnerships have emerged as an enforcement tool.” Further, Assistant Secretary of Labor Charles Jeffress believes there is enough science available to promulgate ergonomics rules and that safety and health personnel need to educate senior management to the hazards of ergonomics.1 Thus, it is incumbent upon
No. 1 1997. Used by permission.
1
See Shantelle Fowler, BNA Daily Labor Report, June 17, 1999. 116 DLR C-1 (199). “OSHA Head Tells Safety Professionals to Educate Managers about Job Hazards.”
the occupational health professional community, and safety professionals in particular, to educate management about the hazards of ergonomics in the workplace.
The fundamentally cost-effective improvements in working conditions that can be realized by implementing sound ergonomic preventive measures, therefore, present a unique opportunity for selling the program to staff throughout the corporation. Using this new approach to occupational health issues, compliance staff from various disciplines, including lawyers, can educate other attorneys, supervisory staff and top management about all occupational health measures in a way that can sell the rest of the in-house OSHA compliance program to corporate officials.
Many large corporations favor having attorneys as compliance officers because of the referent power that is associated with the role of lawyer. Also, there is a moral system of legal ethics that lawyers must follow, that requires them to maintain a certain level of professional ethos, even when it requires balancing obligations under law with the wishes of their clients. There are instances, therefore, when a violation of law could have been prevented by an assertive intervention by in-house counsel who is willing to be the messenger of unwanted but vital information. One example is the case of Terminix v. Byers.2 In that case, the Kentucky Court of Appeals held that the employer had discriminated against an injured employee who engaged in protected activity of filing an OSHA complaint in violation of OSH Act Section 11(c) and attendant regulations. Even though the employer had offered another explanation for the employee’s discharge, the court viewed the employer’s arguments as mere pretext for illegal retaliatory motives.
The case provides an example of where in-house counsel was ineffective, if: counsel knew about these facts, or advised the Vice President of Safety and Health and did not suggest that retaliation was illegal and that a court could scrutinize beneath the surface if it suspected termination was based on a pretext to cover improper motives. In Terminix, the employer appealed from an opinion and order of the Franklin Circuit Court affirming a decision by the Kentucky Occupational Safety and Health Review Commission (Commission). The appeal was affirmed pursuant to Kentucky Revised Statutes (KRS) 338.091(1).
The background of the case is as follows: Appellee, Stephen L. Byers, was employed by the employer in May, 1995, as a termite technician. The employer, a pest control company that provides services to residential and commercial customers, gave the injured employee the job of spraying termiticide indoors. In 1996, employee was admitted to the hospital semicomatose. The treating physician diagnosed the employee as suffering from organophosphate poisoning as the result of overexposure to termiticide used by the employer. The substance, Dursban TC, had splashed onto the injured employee as he sprayed it. When the employee was released from medical care in order to return to part-time sedentary work. Claiming that none was available, the employer placed Byers on workers’ compensation leave for approximately 30 days so that he could continue his recovery, followed by a return to work with restricted duties. The employer argued that the work restrictions due to the injured employee’s acute organophospate exposure combined with a reduced demand for termite removal in the summer made firing the injured employee inevitable. The OSHRC and subsequent reviewing courts, however, were not
2
Terminix Intern., Inc. v. Secretary of Labor, 92 S.W.3d 743 (Ky. Ct. App. 2002).
persuaded by this explanation. Instead, OSHRC and the courts relied upon the injured employee’s employment history with the employer, and the behavior of the in-house staff.
It is especially worth considering that OSHRC, the Circuit Court and even the Court of Appeals in Terminix consistently agreed that the employer acted in bad faith. In particular, the Court of Appeals pointed to actions by the Vice President of health, safety, and environmental stewardship for the employer’s parent company. The court found that the Vice President, also a physician, fully understood the effects of organophosphate poisoning. Evidence in the record showed that prior to the discriminatory termination of the injured employee, the Vice President sought a clarification from the employee’s treating physician, asking whether the work restriction would allow for future exposure to organophosphates once his blood level of cholinesterase reached an acceptable level. There was conflicting evidence in the record regarding the response to this inquiry, but the request was made one day before termination.
The notice termination of employment stated that the employee was terminated due to the absolute restriction against exposure to organophosphates, but the treating physician claimed the employee was capable of eventually returning to full duties. The employee had previously filed a complaint with the Kentucky Secretary of Labor alleging KOSHA (Kentucky Occupational Safety and Health Act) violations.3 The OSHA complaint was filed prior to the termination of employment, and it is clear that none of the reviewing courts believed the employer’s claim that it was not aware of Byers’ complaint at the time. Significantly, although the supervisor claimed that the work restriction motivated the termination, the court found that the Vice President’s “knowledge and actions counter that assertion.”4
In any situation similar to the facts of Terminix, an effective in-house compliance program would have alerted the staff, including the Vice President for Safety Health and Environmental Stewardship, to the penalties associated with discrimination against an employee who files a safety and health compliant with OSHA.
If consulted about the specific circumstances of the case, too, a lawyer would have been able to warn the staff that the employer’s bad faith was unlikely to escape the attention of a court; there are penalties, not impunity, for those employers who punish employees who complain to OSHA. A strong in-house compliance program would have averted, therefore, the citation in Terminix, by reminding staff that courts would scrutinize any dismissal, even if the employee was fired for another reason, given circumstances that bespeak a retaliatory motive. The reviewing court understood that direct evidence of a retaliatory motive is rare. Given the acute nature of his accident and the known penalties for retaliation circumstances that provided
3
The citations resulting from Byers’s complaint were eventually dismissed when the Labor Cabinet determined that it had no jurisdiction to issue the citations initially.
4
The ultimate fact-finder involving disputes such as retaliatory termination hold great discretion to disbelieve certain evidence or accord more weight to certain facts. In the court’s opinion, the employee would not have been discharged absent employer’s improper motivation. The court in Terminix v. Secretary of Labor therefore found that the employer’s articulated reason that work restriction motivated employer’s termination of employee was merely a pretext for retaliation after the employee had filed an OSHA complaint.
substantial evidence of retaliatory motives, OSHRC and two reviewing courts refused to believe the employer’s explanation for dismissal was without a retaliatory motive. And, any lawyer who serves corporate clients through a comprehensive in-house compliance program, would have understood the shortsightedness of the employer’s actions, and attempted to avert the situation that was sure to result in an OSHA citation.
2:38. Empowering internal compliance constituencies– Keep leadership involved
Keeping management adequately involved is a matter of timing, which requires balancing two interests. First, the in-house OSHA compliance committee, legal counsel (in-house and outside), board of directors or related internal oversight structures and corporate leadership must be informed of major activities including new implementation approaches and investigations into accidents, increased injury rates or programmatic changes in response to OSHA citations. At the same time, compliance staff must be careful not to involve those parties before it is necessary–either to introduce a serious, well thought-out program or to launch an internal investigation after–the fact of injury or in response to an OSHA citation.
2:39. Empowering internal compliance constituencies– Provide a consistent, clear message
Keeping executive leadership, colleagues and staff informed about in-house OSHA compliance activities is like taking medicine: Taking the right amount at the right time will improve the situation, but taking too much can kill the intended recipient just like taking too little or having none at all.
Too many compliance messages jump the gun–warning of OSHA involvement or complaining about seemingly impossible compliance deadlines, impending doom from an OSHA inspection or the Damoclean sword of new regulations reshaping existing in-house OSHA compliance structures–without offering meaningful solutions or the promise of needed help. Such crisis-oriented messages can destroy any in-house OSHA compliance program’s credibility through overreaction. They also can destroy existing in-house compliance measures by bringing the wrong message to colleagues, executive superiors and staff. In-house OSHA compliance programs should therefore refrain from mentioning, “bad actors” or targeted people, forthcoming regulation implementation deadlines or specific investigative events unless these messages are sent out to staff deliberately. Otherwise, bringing these people, concepts or activities to the attention of leadership and staff will cause them to question subsequent revelations and information that are sent out by the same in-house compliance program. Thus, thoughtless safety alerts and other messages sent out without thinking through the steps towards achieving in-house compliance with OSHA or regulations or related statutes can have a negative impact upon smooth-running, well-intended in-house compliance programs.
2:40. Empowering internal compliance constituencies– Communicate the priorities
The key to effective in-house OSHA compliance programs is communication in selected, professional contexts.
An effective in-house OSHA compliance committee should be comprised of many members who need not be involved in every decision or plan, but must be involved in the prioritization of in-house criteria and goals. Uninformed leadership caught off guard by new procedures, standards or issues for which they have not been briefed and various opinions have not been discussed tends to be less supportive when confronted with a “surprise attack.”
In addition, prioritization enables informed compliance staff, executives of the
corporation and other key leadership personnel to understand when there are few options–“no way out” or the best possible option has been selected in order to solve compliance problems. Leadership that is supportive will be more willing to accept changes in policies or programs and will be deferential to the compliance staff. People who don’t understand the system or the reasoning behind crucial choices that have been made, however, are likely to be resistant or even hostile to important internal procedures, such as post-accident investigation or even routine job-hazard analysis before periodic monitoring or inspection. They might make it their agenda’s priority to “straighten you out,” only to learn later that co-operation would have prevented additional problems.
2:41. Empowering internal compliance constituencies– Develop an investigation or job hazard assessment process
Compliance staff, colleagues throughout the corporation, and executive staff should not merely be involved in the priority-making process. They should also be informed of the procedures so that they will have confidence that compliance activities, especially investigations, will be fair, complete and approved by the corporation’s leadership.
No step should be skipped and each step should be rechecked routinely. The emphasis here is on the routine aspect of the process. Employees throughout the corporation should have the faith and comfort of knowing about the in-house OSHA compliance system, so that answering even the most probing and invasive questions feels normal, in the name of achieving OSHA’s goals of protecting individual safety and health.
2:42. Empowering internal compliance constituencies– Rechecking and cross-checking
Some in-house compliance staff fear that there is not the time, budget or financial resources to do things once, much less check by doing them twice. Of course, if something has been done wrong or incorrectly, it will need to be redone anyway–so foreseeing the need to check the components below will actually save long-term costs.
2:43. Empowering internal compliance constituencies– Rechecking and cross-checking– Key points of developing a risk management program
To develop a risk management program, the in-house OSHA compliance staff should identify and quantify all operating risks, then focus resources to manage well only those risks that are unacceptable as determined through the prioritizing process outlined above.
Process for assessing and managing risks/hazards:
Step 1. Identification of risks and hazards
• How are you really doing?
• Gap Analysis
Step 2. Detailed risk analysis of management systems, programs and specific operations
• A closer look if needed
Step 3. Recommendations for compliance with regulations and conformance to standards for unacceptable areas of risk.
• These really need to be dealt with openly and with candor!
Step 4. Design and development of programs and process to manage unacceptable risk areas in company operations
• The Cost Effective Fix
Step 5. Assistance with implementation of programs and processes and/or development
of staff to use special tools and techniques
• Fix it just once by checking it twice!
Step 6. Performance Evaluation of programs and process and assistance with corrective action where necessary
• Confirm it: The investigative process should be followed in detail. Don’t skip steps; avoid the shortcuts and recheck the results of investigations, whenever possible.
Each of the above mentioned step uses a certain method to achieve the process. For example, Step 3, the process of making recommendation for compliance with regulations and conforming to standards for unacceptable areas risk is achieved by using industry legislation and standards. Having the foresight to take this approach also allows the in-house OSHA compliance team to set the agenda for procedures including check-ups on its own terms. This avoids constantly returning to prove the team’s worth, ongoing questions about the merits of any particular individual’s work, or revisiting basic issues about the in-house OSHA compliance process as a whole. In this sense a good offense is the best defense: by empowering the in-house OSHA compliance staff to ask questions, set policies and priorities and to return to confirm findings, the team can best accomplish its tasks on its own terms.
Step 7. Renewal
Even the very best of written policies are useless if they are simply posted on the in-house Intranet or Web site, or gathering dust on some dusty shelf. Go back to the policies several times, each time considering their goals and the plain meaning of the text in light of new medical evidence and regulatory developments discussed throughout this book.
2:44. Top management involvement
OSHA guidelines indicate that the involvement of top management can be critically important to establishing a successful compliance program. OSHA Guidelines suggest,
“Provide visible top management involvement in implementing the program, so that all will understand that management’s commitment is serious … actions speak louder than words. If top management gives high priority to safety and health protection in practice, others will see and follow.”1
This is the essence of sound management, and it is crucial for developing credible safety and health programs. Effective occupational safety and health management requires visible participation by the highest eschelons of management, including corporate directors, general counsel and vice presidents. This could take the form of a Board of Directors’ Resolution or reports on in-house OSHA programs to the Board. Similarly, managerial support for safety and health programs requires effective communication from the “top” to every other member of the compliance team, and, ultimately, to each member of the staff who may encounter potential hazards. OSHA has repeatedly stated the importance of Joint Safety Committees2 in developing and maintaining effective compliance communication. To be successful, such committees must have active visible support from top decision-makers in the enterprise, as evidenced by their participation and their attention to occupational safety and health issues.
1
OSHA Management Guidelines, 54 Fed. Reg. 3904 to 3916 (1989).
2
Preventing Illness and Injury in the Workplace, Office of Technology Assessment (1985).
2:45. Establishing compliance committee or team
Establishing an interdisciplinary, dedicated in-house compliance team is the key to developing a successful occupational safety and health compliance program. Although enterprise-wide efforts ultimately involve each employee, from the top echelons of management to each member of the subordinate staff, the compliance team is the hub for compliance activities. An effective compliance team can restate OSHA’s goals, as expressed in the management guidelines, by taking action to:
(1) alert staff to the nature of workplace risks;
(2) impress them with the benefits of safety and health programs;
(3) review in-house guidelines;
(4) participate in training and education; and
(5) provide incentives for the positive results achieved through these efforts.
In-house personnel performing regular inspections should have expertise and professional competence to recognize hazards in the areas they review and to identify reasonable means to correct hazards. Joint Safety Committees are one widely accepted enterprise-wide mechanism for handling delicate internal issues affecting OSHA compliance.
The OSHA Guidelines do not suggest the departments in an enterprise which should be represented within the OSHA compliance team, but a team effort or Joint Safety Committee is clearly endorsed by OSHA. The Guidelines also do not specify whether the team should designate one member who has the assigned task of ongoing contact with OSHA. But the benefits of ongoing communication with the agency in a nonadversarial posture, as illustrated by the experience of OSHA’s Voluntary Protection Programs, render the development of interactive OSHA compliance relations implicit in OSHA’s suggested methods. OSHA Guidelines indicate that effective in-house compliance programs should be flexible, voluntary, and involve the development of a safety and health compliance team that regularly communicates with each of its members, enterprise staff and the government. OSHA’s guidelines are not enforceable regulations with penalties for failure to achieve their goals, but OSHA has cautioned employers, that publication of guidelines will not preclude the agency from undertaking regulatory action if future events so require.
2:46. Establishing compliance committee or team– Impact of Electromation on developing compliance teams
The case of Electromation, Inc. v. Brotherhood of Teamsters, (Electromation)1 is problematic for the implementation of Joint Labor and Management Safety and Health Committees (Joint Safety Committees) because of its broad prohibition against employer involvement in employee representative “labor organizations” under the National Labor Relations Act, (NLRA). Because of the National Labor Relations Board (NLRB)’s strong language condemning the type of employer activity exhibited in Electromation, this case raises several limitations to bear in mind when crafting such programs which may allow the program to enjoy permissible activities in order to achieve occupational safety and health compliance.
Electromation examined whether “Action Committees” composed, in part, of the
1
Electromation, Inc. & International Brotherhood of Teamsters, Local Union No. 1049, AFL-CIO, and “Action Committees” 309 N.L.R.B. 990 (1992).
enterprise employees constituted a labor organization within the meaning of Section 2(5) of the NLRA and whether the employer’s conduct regarding such “Action Committees” was an unfair labor practice involving employer domination of those committees under Section 8(a)(2) and (1) of the NLRA. In Electromation, the employer’s Action Committees were designed to discuss grievances about “attendance bonuses” in lieu of pay raises and other terms of employment but did not concern matters of occupational safety and health. The employer-sponsored Action Committees in that case were an outgrowth of an employee petition that protested various cutbacks within the enterprise. They later became “employer dominated” because of employer action to replace and control the original employee-based committees, in competition with a union that was organized simultaneously. The NLRB framed the pertinent issues as follows: “(1) At what point does an employee committee lose its protection as a communication device and become a labor organization? and (2) What conduct of an employer constitutes domination or interference with the employee committee? ”2
These questions hold important implications for in-house compliance programs, depending on the true purpose and structure of the relevant committees as manifested by their activities, and the lee way that they may be granted within the enterprise in order to ferret out and address forthrightly important occupational safety and health problems. First, it should be noted that Section 2(5) requires a finding that a particular entity is a “labor organization” as a threshold matter.3
There is a major difference between Joint Safety Committees and the “Action Committees” found in Electromation. There, the employer’s use of “Action Committees” offered the false pretense of employee representation, which was illegally intended to silence the union. This aspect of the committees played a key role in shaping the NLRB’s reasoning because preventing such employer activities went to the heart of the NLRA.4 The NLRB therefore found,
2
Id. at 2.
3
Id.
“Before a finding of unlawful domination can be made under Section 8(a)(2) a finding of labor organization” status under Section 2(5) is required. … the organization at issue is a labor organization if
(1) employees participate,
(2) the organization exists, at least in part, for the purpose of ‘dealing with’ employers, and
(3) these dealings concern ‘conditions of work’ or concern other statutory subjects, such as grievances, labor disputes, wages, rates of pay, or hours of employment.
Further, if the organization has as a purpose the representation of employees, it meets the statutory definition of “employee representation committee or plan” under Section 2(5) and will constitute a labor organization if it also meets the criteria of employee participation and dealing with conditions of work or other statutory subjects. Any group, including an employee representation committee, may meet the statutory definition of “labor organization” even if it lacks a formal structure, has no elected officers, constitution or bylaws, does not meet regularly, and does not require the payment of initiation fees or dues. Citing Fire Alert Co., 182 N.L.R.B. 910, 912 n.12, 75 L.R.R.M. (BNA) 1271, 1970 NLRB Dec. (CCH) P 21952, 1970 WL 25970 (1970); Armco, Inc., 271 N.L.R.B. 350, 116 L.R.R.M. (BNA) 1407, 1984-85 NLRB Dec. (CCH) P 16549, 1984 WL 36613 (1984). Electromation slip op. at 20.
4
Id. slip op. n 20 “Because we find, as explained below, that employee-members of the
“the ‘Action Committees’ were not simply ‘communication devices’ but instead constituted a labor organization within the meaning of Section 2(5) of the Act and that the Respondent’s conduct towards the Action Committees constituted domination and interference in violation of Section 8(a)(2)5 and (1)” of the NLRA.
Whether such analysis is applicable to Joint Safety Committees remains unclear. It has been incorrectly suggested that the ruling in Electromation automatically renders illegal good faith attempts by an employer to develop Joint Safety Committees.6 Such a suggestion may represent a simplistic effort to circumvent duties to provide a safe and healthful working environment, by overstating the limitations upon employer communication under NLRA. In Electromation, the NLRB left open the possibility for their approval stating, “These findings rest on the totality of the record evidence, and they are not intended to suggest that employee committees formed under other circumstances for other purposes would necessarily be deemed ‘labor organizations’ or that employer actions like some of those at issue here would necessarily be found, in isolation or in other contexts, to constitute unlawful support, interference, or domination.”7
In Dupont,8 however, the possibility left open in Electromation all but closed entirely.
Respondent’s Action Committees acted in a representational capacity, it is unnecessary to the disposition of this case to determine whether an employee group could ever be found to constitute a labor organization in the absence of a finding that it acted as a representative of the other employees.”
5
NLRA §8(a)(2) provides that it shall be an unfair labor practice for an employer to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, that subject to rules and regulations made and published by the Board pursuant to section 6, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay.
6
See §3:115.
7
Id. at 4. The fine line dividing acceptable activities and unacceptable, however, is not always clear. In Electromation, “the Action Committees constituted a labor organization within the meaning of Section 2(5). … employees, supervisors, and managerial personnel served as committee members and that their discussions concerned conditions of employment. The judge found that the Respondent dominated and assisted the committees on the basis of evidence that the Respondent organized the committees, created their nature and structure, and determined their functions. … although management did not dominate meeting discussions, meetings took place on company property, supplies and materials were provided by management, and members were paid for time spent on committee work.”
8
E.I. du Pont de Nemours & Co., 311 N.L.R.B. 893, 143 L.R.R.M. (BNA) 1121, 143 L.R.R.M. (BNA) 1268, 1993 WL 191471 (1993).
There, the NLRB ordered the disestablishment of seven joint safety committees whose activities “bypassed” duly authorized union activities in occupational safety and health. Finding antiunion animus,9 the NLRB made the threshold determination that Dupont’s seven committees were “labor organizations” within the meaning of Section 2(5) of the NLRA and that their unlawful domination by the employer violated Section 8(a)(2) of the NLRA. The decision also paid close attention to the question whether the committees were involved in “dealing with” management regarding conditions of work and whether such activity constituted “collective bargaining.” The NLRB found that the committees unlawfully acted as agents of employees and therefore were “employee representatives” under the Act for both of these purposes. NLRB noted,
“if management representatives can reject employee proposals, it makes no real difference whether they do so from inside or outside the committee. In circumstances where management members of the committee discuss proposals with employee members and have the power to reject any proposal, we find that there is “dealing” within the meaning of Section 2(5). … The mere presence, however, of management members on a committee would not necessarily result in a finding that the committee deals with the employer within the meaning of Section 2(5). For example, there would be no “dealing with” management if the committee were governed by majority decision-making, management representatives were in the minority, and the committee had the power to decide matters for itself, rather than simply make proposals to management. Similarly, there would be no “dealing” if management representatives participated on the committee as observers or facilitators without the right to vote on committee proposals.”10
For this reason, the NLRB in Dupont did not find impermissible safety conferences that carefully carved out occupational safety and health issues as distinct from other matters for collective bargaining, even though participation in the safety conferences was not always open to all employees. The NLRB rejected the committee’s ability to resolve disputes as unlawful alternatives to collective bargaining grievance mechanisms, but it indicated that it would approve a committee that exists for the purpose of sharing information, providing employee education, or that has the authority to act independently of the employer’s wishes regarding the committee’s agenda.11
9
Devaney, in his concurrence found that the employer. “attempted to use the committees to freeze the Union out of areas in which it had a vital and legally recognized interest … a textbook example of an employer’s manipulation of employee committees to weaken and undermine the employees’ freely chosen exclusive bargaining agent.” Dupont, slip op at 21.
10
Dupont, Slip op at 7-8.
11
Dupont, Slip opinion at 8-9:
For example, a ‘brainstorming’ group is not ordinarily engaged in dealing. The purpose of such a group is simply to develop a whole host of ideas. Management may glean some ideas from this process, and indeed may adopt some of them. If the group makes no proposals, the ‘brainstorming’ session is not dealing and is therefore not a labor organization. Similarly, if the committee exists for the purpose of sharing information with the employer, the committee would not ordinarily be a labor organization. That is, if the committee makes no proposals to the employer, and the employer simply gathers the information and does what it wishes with such information, the element of dealing is missing, and the committee would not be a labor organization. … In addition, if a committee exists for the sole purpose of planning educational programs, there would be no dealing.
Taken together with Electromation, the NLRB’s opinion in Dupont that “there is some room for lawful cooperation under the [National Labor Relations] Act” is perplexing. It is unclear how one could structure a Joint Safety Committee that is not a “labor organization” under the NLRB’s analysis of these two cases, but it is also possible that the NLRB’s analysis in both these cases was clouded by the presence of illegal anti-union activity which called into question the employer’s motives and in turn undermined the stated purpose of the committees. Whether the NLRB would disapprove employee and management co-operative participation in an occupational safety and health committee absent the backdrop of anti-union activity remains to be seen–if such an environment is possible.
The importance of this potential distinction between the illegal and the impermissible appears throughout the NLRB’s discussion of the Legislative History of the NLRA, in Electromation, where the NLRB paid particular attention to the long history of employer efforts to block unionization of the workforce.12 Despite the NLRA’s broad language regarding the term “labor organizations”13 it could be argued that in-house compliance occupational safety and health committees that embrace employee participation in a very narrow range of activities do not represent employees, so long as they clearly state that they are not agents of employees and do not purport to represent them–a fundamental but fragile distinction that could easily be destroyed if Joint Safety committees are linked to internal employee grievance mechanisms or perceived to be part of a collective bargaining process.14
12
In Electromation, the NLRB “viewed the abolition of employer-dominated organizations as essential to the Act’s purpose, ” citing its first case, Pennsylvania Greyhound Lines, Inc., 1 N.L.R.B. 1, 1 L.R.R.M. (BNA) 303, 1935 WL 6110 (1935) because, “The manager charged with establishing the association wrote that it is to our interest to pick out employees to serve on the committee who ‘will work for the interest of the company and will not be radical.’ … Thus, Greyhound usurped from the employees their protected right to a bargaining representative of their own choosing when it set up and accorded recognition to a ‘committee’ that was in no way an agent of the employees or loyal to their interests–although Greyhound management certainly intended that the committee appear to possess both those attributes.” Id., slip op at 21-22.
13
Section 2(5) of the NLRA defines a “labor organization” as follows: “The term “labor organization” means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.”
14
The Electromation decision viewed,
outlawing company dominated labor organizations were a critical part of the Wagner Act’s purpose of eliminating industrial strife through the encouragement of collective bargaining. … The greatest obstacles to collective bargaining are employer-dominated unions, which have multiplied with amazing rapidity since the enactment of [the National Industrial Recovery Act]. Such a union makes a sham of equal bargaining power … (O)nly representatives who are not subservient to the employer with whom they deal can act freely in the interest of employees. For these reasons the very first step toward genuine collective bargaining is the abolition of the employer dominated union as an agency for dealing with grievances, labor disputes, wages,
In summary, there are important questions regarding the validity of independent internal procedures for ameliorating occupational safety and health under Electromation, and Dupont but some benefits of well-crafted in-house compliance programs with procedures or including employee participation in the manner that is suggested by OSHA remain. The narrow distinction between an unfair labor practice by an employer and permissible activity to promote occupational safety and health could be sharpened in the case of those Joint Safety Committees that not only hear employee complaints, but also have the autonomy to inspect workplaces and recommend improvements without an obligation to follow employer-determined preferences for improving occupational safety and health. The subtle complexities of these important considerations were recognized by several members of the United States Senate when drafting the proposed “Comprehensive Occupational Safety and Health Reform Act” presently before the United States Congress,15 which specifically addresses the issues raised by Electromation. That bill would require the establishment of Joint Safety Committees in every workplace with 11 or more employees, in addition to several self-policing features regarding employee training and self-inspection that would foster labor and management co-operation to promote occupational safety and health. In so doing, the proposed reform bill would also place an official imprimatur upon Joint Safety Committees as a valid instrument of promoting occupational safety and health.
2:47. Establishing compliance committee or team– Key to successful joint safety committees
One of the confusing facets of the OSH Act is its uneasy relationship with the National Labor Relations Act (NLRA).1 The NLRA governs the activities of labor organizations, including but not limited to, trade unions. Historically, the NLRA has been a major cornerstone of twentieth century employment law governing labor relations. The NLRA discusses
rates, or hours of employment. I Legislative History of the National Labor Relations Act of 1935, 15-16 (GPO 1949) (hereafter cited Leg Hist) … Member Devaney interprets the legislative history differently. He sees Congress as proscribing a narrower range of conduct, more closely tied to the historical experience recounted to the Senate, than is stated above, and would not agree that Congress defined ‘labor organization’ broadly so as to prohibit a wide range of employer conduct. But the majority agrees that, whatever weight is attached to the wording of the definition of labor organization, Congress’ goal was to preserve for employees the right to choose their bargaining representative free of employer interference or coercion … the majority agrees that analysis of an employee committee’s status under the Act must center on the group’s purpose and function in light of NLRA’s goal of protecting the right of self-organization from the specific abuse of employer-dominated organizations set up by employers.
Id. slip op. at 19.
15
See §201 of the Comprehensive Occupational Safety and Health Reform Act, which reads: “(g) a safety and health committee established under and operating in conformity with this section shall not constitute a labor organization within the meaning of Section 2(5) of the National Labor Relations Act or a representative within the meaning of Section 1, Sixth of the Railway Labor Act.”
1
National Labor Relations Act (Labor Relations Act) (NLRA) (Wagner-Connery Labor Relations Act), 49 Stat. 449 (codified 29 U.S.C.A. §§151 et seq.).
occupational health, in part, if only tangentially, by stating that safety and health aspects of working conditions may be treated as “non-negotiable” for some purposes. This language has been interpreted to create a floor for minimum protections of safety and health in the decades before the OSH Act’s passage created national standards to preserve health and human life at work. At the same time, the OSH Act’s purposes encourage a role for trade unions, in a limited context: “by encouraging joint labor-management efforts to reduce injuries and disease arising out of employment.”2
For many years, the development of Joint safety committees between labor and management in the United States has been hindered by a misconception of their role in relation to the leading National Labor Relations Board (NLRB) case of Electromation.3 As described above, that case fails to parse the difference between constructive interactions between labor and management that may be cultivated even in those worksites where there is no trade union or other “labor organization” on the one hand, and activities instigated by employers or outside agitator groups that undermine the development of labor organizations. As a result, United States law has struggled for many years with the dilemma that Joint Safety Committees which are beneficial and are permitted under OSH Act and are not preempted by the NLRA are so ill-defined that they can be mistaken for anti-union employer based organizations, which violate the NLRA. There are important questions regarding the validity of independent internal procedures for establishment of Joint Safety Committees in every workplace, self-policing features regarding employee training, and self-inspection that would foster labor and management co-operation to promote occupational safety and health.
Before a finding of unlawful domination can be made under Section 8(a)(2) a finding of “labor organization” status under the NLRA Section 2(5) is required.4 The “organization at issue is a labor organization if (1) employees participate, (2) the organization exists, at least in part, for the purpose of ‘dealing with’ employers, and (3) these dealings concern ‘conditions of work’ or concern other statutory subjects, such as grievances, labor disputes, wages, rates of pay, or hours of employment.” Further, if the organization has as a purpose the representation of employees, it meets the statutory definition of “employee representation committee or plan” under Section 2(5) and will constitute a labor organization if it also meets the criteria of employee participation and dealing with conditions of work or other statutory subjects.5
2
20 U.S.C.A. §651(b)(13).
3
Electromation, Inc., 309 N.L.R.B. 990, 142 L.R.R.M. (BNA) 1001, 1992-93 NLRB Dec. (CCH) P 17609, 1992 WL 386692 (1992).
4
Electromation, Inc., 309 N.L.R.B. 990, 142 L.R.R.M. (BNA) 1001, 1992-93 NLRB Dec. (CCH) P 17609, 1992 WL 386692 (1992).
5
Any group, including an employee representation committee, may meet the statutory definition of “labor organization” even if it lacks a formal structure, has no elected officers, constitution or bylaws, does not meet regularly, and does not require the payment of initiation fees or dues. Electromation, Inc., 309 N.L.R.B. 990, 142 L.R.R.M. (BNA) 1001, 1992-93 NLRB Dec. (CCH) P 17609, 1992 WL 386692 (1992)).
The NLRA Section 8(a)(2) provides that it shall be an unfair labor practice for an employer to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, that subject to rules and regulations made and published by the Board pursuant to section 6, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time. Ironically, the interpretation of these laws that prevents the development of joint safety committees actually undermines the purposes of promoting improved working conditions, a public policy that is consistent with the legislative purposes of both the OSH Act and the NLRA.
In this context, the major negotiated safety and health committees developed by the “Big Three” automakers in the United States along with the United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW) is worth noting. The automakers and their trade union have developed an unusual approach to improving health and safety in the auto industry. Literature distributed by UAW and posted on their Web page6 states that:
[The] UAW believes that the best way to prevent injuries and illnesses on the job is to provide workers with information about hazards and procedures to get these hazards corrected. An educated, empowered worker, who has the right to act on what he or she knows, is the best line of defense against workplace hazards. We also focus on the principle of “fix the work, not the worker.” 7
The automakers and autoworkers approach also has become a model for development of other joint safety committee projects using existing labor organizations as a vehicle for safety and health programs.8 For example, OSHA released plans in July, 2003, to join a partnership to promote worker health and safety on the Buffalo city schools construction project. The Buffalo area office of OSHA signed an agreement that contains specific objectives for the planned 10-year construction program. Also signing the agreement are representatives of the Buffalo Building and Construction Trades Council, the AFL-CIO, the consultation program of the state Labor Department’s Division of Safety and Health, and Ciminelli Management Co., which is overseeing the project. OSHA officials described it as a first-of-its-kind local partnership that brings together government, labor, and business. It’s also designed to help create a better-trained work force, they said. Daniel Boody, president of the Buffalo Building and Construction Trades Council, said he expects the partnership to improve protections. “It further enhances and enforces the awareness of health and safety on the job,” he said by raising the level of accountability.
6
See the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW)’s Web site at http://www.uaw.org.
7
UAW, Bargaining for America: Health and Safety, available at http://www.uaw.org/barg/03/barg06.cfm.
8
Press Release, OSHA, Labor, Management and Government Forge Partnership on Buffalo City Schools Construction Project (Aug. 4, 2003), available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_ table=NEWS_RELEASES&p_id=10349.
OSHA estimates that at its height, more than 150 contractors will be working on site, with about 500 to 700 employees. The joint agreement calls for a cooperative effort to create a comprehensive safety plan, site-specific safety training, and ongoing monitoring by a safety team. The joint agreement’s goals include zero fatalities, reducing injury rates by 3% for each year of the project and setting minimum training requirements for all of the project’s workers and supervisors. Incentives will be offered to contractors who meet enhanced standards for safety and health performance. Although the efficacy of incentives is controversial, the goals of zero-fatalities and progressively reducing injury rates are innovative and worthy of further attention. And contractors’ safety and health programs will be analyzed for deficiencies. Donna Brown, a communications official with Ciminelli, said it was a “step in the right direction” to have OSHA working with the other partners in this agreement. “It puts more of a focus on safety,” she said. “It keeps everything in perspective, and keeps everything up to speed.”
OSHA’s innovative step in 2003 was undoubtedly influenced by the “Big Three”-UAW model that was implemented after extensive contract negotiations in 1994.9 The UAW cites the Bureau of Labor Statistics data to demonstrate the successes of its programs in labor-represented SIC codes: the rate of illnesses and injuries has been reduced since 1994 by 36.7% in motor vehicle assembly, by 42.1% in automotive stamping, and by 39.5% in internal combustion engines. According to UAW data, there is a correlation between the reduced injury rates in sectors of the industry in which UAW membership is at its highest density. They claim that their membership in Big Three, Delphi, and Visteon plants is setting safety standards for the entire industry. UAW also claims that the rate of injuries declined 426% more rapidly in the motor vehicle sector than in all of private industry between 1994 and 2001, while illnesses were cut almost 1,100% faster. According to UAW documents, fatality rates in the auto industry, already about one-third of the national average, also fell significantly from 1973 to the present. This was accomplished by focusing on high-risk activities of the skilled trades and powered industrial vehicle operations. One major area of UAW work has been in ergonomics, the study of accommodating machinery and equipment to the specific characteristics of the user.
Most people think of ergonomics in relation to computer keyboards, ambidextrous mouse attachments and correctly fitting chairs. The principles of ergonomics hold exponentially greater benefits, however, and can mean the difference between life and death, when applied to heavy machinery where the ability to reach or control equipment comfortably for a long period of time. Given the background of the very severe underlying dangers of the highly mechanized and severely compressed production processes in foundries, stamping-fabrication plants, machining operations and vehicle assembly plants. Vehicle assembly in particular poses very difficult ergonomic challenges. For this reason, members of the Big Three and UAW Joint safety committee programs get extensive jointly developed health and safety training on key issues like chemical hazards, energy lockout, powered industrial vehicles and ergonomics, and the negotiated programs to control these hazards. Hourly workers and management counterparts typically deliver this training.
Unlike the program that was erroneously rendered illegal in Electromation, Big Three-
9
See UAW, Local 2209, Bargaining for America, available at http://www.local2209.org/contract/ (for UAW Big Three contract negotiations); Sholnn Freeman & Joseph B. White, UAW Reaches Tentative Accord With GM, Delphi, Wall St. J., Sept. 19, 2003, at A3.
UAW labor agreements, negotiated within the rubric of NLRA and fostering the goals of the OSH Act, specify that employees are provided medical exams and tests, and their exposures to chemicals are monitored. In addition, they have access to examination and test results, and ergonomic and safety hazards are evaluated periodically. Members can call for evaluation of specific problems on their jobs, including perceived imminent dangers. Failing resolution, members have access to a health and safety complaint and grievance procedure. Consistent with the notion of stewardship in-house to resolve problems and head off complaints before they become the subject of OSHA enforcement actions, the Joint Safety committee under the Big Three-UAW structure has presence in the workplace. At the individual plant level, the agreements provide for at least one, and sometimes more, full-time appointed union representatives in each worksite with more than 600 UAW-represented workers. These in-house representatives are dedicated to health, safety, and ergonomic issues. The representatives work full time to monitor workplace hazards and prevent illnesses and injuries. In a manner similar to the eight step cycle for auditing compliance in §4:20 of this volume, safety and health representatives regularly inspect the facility for safety hazards, evaluate ergonomic risk factors, and take or observe the collection of air samples for chemical exposures. Training is integrated into their duties, at least annually.
Members of the safety and health program from each “side” of the negotiating table typically work together with their respective counterparts in a technical area. Functions of such joint activities include: review of new equipment for safety and health issues before it is installed; and acting as a local joint health and safety committee. A committee consisting of the plant manager, personnel director and top local union leadership typically reviews facility health and safety at least monthly. The same infrastructure created through contract negotiations includes joint national committees on health and safety at the Big Three, Delphi and Visteon. According to the UAW, such committees meet regularly at each company to review performance, devise training, direct health and safety research and exchange data.10 The national joint committees are also empowered to develop and direct regular joint audits of facility health and safety programs by national union and management staff. When viewed in totality, the ethos conveyed by these agreements demonstrates commitment from corporate management to meet regularly with union and management representatives dedicated to health and safety to review programs and progress. Specific programs addressed by the totality of these agreements includes but is not limited to: energy lockout (a safety procedure for servicing equipment), powered industrial trucks; confined space entry, noise and hearing conservation and preventive maintenance; control of exposure to metalworking fluids beyond that required by OSHA and an extensive ergonomics program, with job analysis and modification according to strict time limits. Big Three-UAW research was also offered as a basis for the recommendation by an OSHA advisory committee to reduce and control metalworking fluids exposure levels.
Another facet of the remarkable co-operation through this series of Joint Safety Committees is their facile ability to foster research studies that require the trust created only through a good working relationship, in order for research data to be collected and research goals to be realized. Many studies have been funded and carried out under the auspices of UAW-auto
10
See online Newsletter, Safety and Health Advocate (Spring 2003), available at http://www.uaw.org.
industry joint health and safety programs. For example, joint Big Three-UAW studies on ergonomics were used in testimony to support OSHA’s attempt to regulate a standard for ergonomics. The UAW claims that their health and safety programs had influence beyond the auto industry. As evinced by the outcome of the Electromation case,11 when their union negotiated a role for workers in designing and implementing health and safety programs, the idea that workers themselves could be involved in preventing workplace injuries was considered radical. But now, through these negotiations, labor organizations recognize employee participation as equal to management commitment as a fundamental part of any rigorous effort to improve workplace safety; thus the “Big Three”-UAW agreement receives much more attention and funding than previous efforts within unions to foster the amelioration of working conditions.
The next step for such successful programs is to reach across the collective bargaining table a little further, and to venture into the realm of preventing the economic loss and social disruptions caused by failures in systems for workers’ compensation. Traditionally, the compromise between suing an employer for tort liability under the common law and forcing either an employer or an employee to bear absolute liability alone has been fraught with misunderstandings and rhetoric from both sides of the bargaining table. Many workers who are injured accept inferior care or go without care if they are denied workers compensation, or use up their annual leave and employee health benefits if the causal link between injury and the work-relatedness of the injury is unclear or unknown by science at the time. At the same time, employers and their workers’ compensation insurance carriers frequently worry about malingerers or fraudulent claims that may be filed by workers who are not really injured or workers who are injured off-the-job. One solution to this complex problem could be to involve labor organizations such as the UAW, with its ample funding, data base of excellent empirical research regarding the causes of injury and illness, understanding of methodologies for reducing injuries, and its extensive positive working relationship with employers in the realm of safety and health in an administrative role. Building on the Joint Safety committee’s experience of trust and good will, labor organizations with many members could be objective insurance carriers to fund workers’ compensation insurance programs, since the influence they hold over members and their investment in the well-being of the employer would help to sort through the rhetoric of which claims are fraudulent and which claims are valid. Such a solution would also engender the trust of members, who could be assured of swift and adequate coverage for workers’ compensation claims that are valid.
2:48. Participants and functions of compliance team; joint safety committees
An effective compliance team is much more than a cheerleader for the existing efforts within the enterprise; it must also have knowledge, power and professional expertise to constructively critique conditions. The compliance team must be able to exercise its authority to correct potential dangers. Implementing an effective in-house OSHA compliance program, therefore, requires a competent team of professionals who are dedicated to providing an integrated, interactive system for hazard communication training and response to recognized hazards throughout the enterprise. This requires, like any viable strategy, that all members of the team sing the same “song” in harmony. Orchestrating their performance, however, may require
11
Electromation, Inc., 309 N.L.R.B. 990, 142 L.R.R.M. (BNA) 1001, 1992-93 NLRB Dec. (CCH) P 17609, 1992 WL 386692 (1992).
the artful drafting of clear internal rules and procedures, in addition to the support of managerial staff and commitment of resources that are needed to implement a successful in-house OSHA compliance program.
Regardless of the official title the team bears within the enterprise, OSHA urges each employer to develop a reliable system for employees to discuss and report their safety concerns, without fear of reprisal, in order to utilize employee insight and experience in safety and health protection. The team should include.
• an in-house industrial hygienist or safety engineer;
• corporate counsel;
• supervisory personnel; and
• employees with “hands-on” experience confronting the particular hazards.
OSHA recommends that all compliance team members have special safety and health training, and that they become familiar with the relevant occupational safety and health laws and regulations. Their specialized training sessions can be used to accomplish the two-fold task of (1) informing team members about occupational safety and health hazards, and (2) previewing and refining proposed hazard communication and related training programs that may later be used throughout the enterprise. The compliance team also should have the authority to request the assistance of outside experts, when necessary, to achieve its goals. This concept is implicit in OSHA’s provision for surveys, reviews, and analyses that it recommended in the management guidelines. In addition, the invaluable benefits derived from the independent judgment of professional, outside consultants who are not necessarily integrated into the corporate culture at a given enterprise should not be underestimated. Independent industrial hygiene audits by outside consultants should therefore be incorporated into the structure of routine reports and hazard investigations that can be discussed by the safety and health compliance team.1
Joint Safety Committees
The mechanism that guides the performance of the in-house compliance team tasks is usually called a Joint Safety Committee. Joint Safety Committees, also called joint labor-management committees or safety circle teams, provide the opportunity for rotational assignment of employees into compliance functions. Joint Safety Committees are very useful because they provide a neutral focal point for compliance activity. The Committee can also serve as an effective channel to notify staff about potentially hazardous conditions, to receive timely and appropriate responses, and to encourage employees to participate in enterprise-wide safety and health compliance programs.
As the United States Congress Office of Technology Assessment (OTA) noted in 1985,2 Joint Safety Committees vary in structure, organization and the capacity for intervention. Their respective roles range from limited monitoring of workplace routines to serving as a pivotal source of internal political pressure to effectuate necessary changes. Joint Safety Committees can fulfill these differing roles because they resolve difficult occupational safety and health problems on a local level without the need for governmental intervention.
1
See chapter 3.
2
Preventing Illness and Injury in the Workplace at 315, Office of Technology Assessment (1985).
Balanced Participation
OTA also underscored the need for a balance of strengths between labor and management groups so that employee representatives will not be inhibited or intimidated in their roles and management will retain its ability to set the agenda for the enterprise. One commentator has suggested that an industrial hygienist or safety professional who has a permanent role in the in-house compliance process should accept the responsibility for identifying the staff who are interested in participating in the Joint Safety Committee or compliance team.3 To encourage greater participation, the terms of office for some team members should rotate at regular intervals, with a new designee sitting through at least one meeting as an observer before taking over any official duties.
Support for the Team Efforts
Support for the team efforts can be evidenced by a letter from management describing the role of the team and its duties for all staff, which will further development of an esprit de corps for the team and enterprise-wide interest in the progress made towards attaining its goals. Formal memos should be sent to remind managerial staff of meetings and the importance of their active attendance. Minutes from meetings should be posted on a bulletin board along with comments solicited from the rest of the staff concerning the subjects discussed by the compliance team. Additionally, team members should appoint one member to take minutes and maintain an accurate summary of team decisions, such as assignments of team-related tasks, with adequate information for follow-up of the recommendations made by team members.4
2:49. “Embedding” compliance into in-house OSHA compliance programs
Responsibilities for compliance should be built into job descriptions and included in performance appraisals, according to Sharpe.1 This approach is closer to changing corporate culture from within, compared to the mere distribution of manuals and prefabricated compliance polices. Regarding occupational health and safety in particular, Sharpe urges, “Ensure that the system is properly structured. Check periodically that the required safety committees are actually operating, are considering appropriate issues and keeping proper minutes, are looking for problems pro-actively, and are actively supported by management. Also ensure that the company has its own system, unless the safety’s committee’s role is expanded to cover all relevant items.”2
3
Shirley, Managing Safety: Getting Managers and Employees to Work as a Team, Industrial Safety & Health News 13 (Feb. 1991).
4
Shirley, Managing Safety: Getting Managers and Employees to Work as a Team, Industrial Safety & Health News 13 (Feb. 1991).
1
See Sharpe, Embedding Compliance Into Operations, in his excellent book, Making Legal Compliance Work (1996).
2
Note: in contrast to the disputes surrounding joint labor-management Safety Committees under the NLRB decision in “Electromation,” such committees are required under Australian law.
All of the above steps should be embodied in mandatory procedures and properly scheduled. This view also underscores that the “embedding approach” is actually an integral part of well-run management systems.
2:50. “Embedding” compliance into in-house OSHA compliance programs– General counsel
The role of general counsel in shaping internal compliance procedures is crucial to achieving an effective compliance program. Legal training has taught counsel the importance of clear written policies when assigning tasks. Written policies should therefore accomplish more than offering a vague pronouncement of compliance goals. A clear statement of responsibility, as it relates both to organizational goals and objectives and to the specific functions of individuals, is essential to creating a compliance team; written policies should also clearly distinguish between the responsibilities that have been assigned to the in-house safety and health compliance team, compared to the responsibilities that are assigned to an overarching, enterprise-wide system of safety and health compliance programs. Thus, those matters which lay beyond the scope of the compliance team’s delegated tasks should also be set forth with equal clarity as the scope of programs established by in-house policies.
To be effective, the in-house safety and health compliance program should be tailored to the needs of the enterprise and its corporate culture. This requires discussion with decision-makers within the enterprise in order to evaluate and resolve the precise role of the in-house compliance mechanism. General counsel will play an important role in resolving the following questions:
• Will committees or related compliance programs be used to resolve disputes pertaining to actual working conditions?
• Which questions concerning working conditions will be beyond the mechanism’s reach, and reserved for other in-house grievance mechanisms?
• Which activities by the in-house safety and health compliance team will generate written documentation beyond the routine committee meeting minutes?
• How, and to what extent, will compliance team members be involved in in-house investigations of potential hazards?
• Will the compliance team review the findings of occupational safety and health professionals, and make recommendations of their own?
• If so, will the team recommendations be binding on the enterprise, or advisory to managerial decision-makers in higher echelons of the enterprise?
• How will team members be selected?
• What qualifications must they have for their positions and how long will they serve?
• How will they be compensated for their time?
• What will be the role of the in-house compliance team be in the event of an internal investigation of a major accident or the discovery of a known, recognized health hazard?
• What will be the role of the in-house safety and health compliance team in determining the course of future in-house occupational safety and health policies?
• Does the compliance team actually formulate workplace safety and health rules?
• Does the team have any oversight of new or existing in-house occupational safety and health programs, work rules or policies? (i.e., What would be the in-house compliance team’s role in shaping a gender-neutral, nondiscriminatory reproductive health protection
policy after the Supreme Court’s decision in International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW v. Johnson Controls, Inc.?1)
The role of general counsel in resolving these fundamental questions fulfills several functions. First, the in-house safety and health compliance efforts need the general counsel’s training and experience to walk the fine line between creating documents which compromise potential litigation positions and failing to make required disclosures and warnings.
Second, the general counsel, in consultation with decision-makers within the enterprise, should determine which job descriptions must be, or are, optional as team members.
Third, the general counsel should develop a structure that is amenable to formulating necessary procedural safeguards to ensure the confidentiality of personnel files such as employee medical information.
Fourth, the essence of interactive safety and health compliance involves maintenance of good relations with in-house team members, OSHA Compliance Officers and other OSHA staff as an implicit function of the general counsel’s job.
Fifth, the general counsel serves in-house compliance efforts by fulfilling a significant informational role. This function requires more than informing in-house compliance team members about litigation and related legislative activity or calling a regulator about a particular problem after an enforcement situation has arisen; it requires ongoing attention to safety and health compliance matters. By offering the legal staff’s imprimatur and credibility to the in-house information dissemination efforts, the general counsel increases the impact of the information. This requires the ability to communicate without using legal jargon; information from the general counsel should be useable by intelligent professionals within the enterprise with unrelated expertise in medicine, business, management training, safety engineering or industrial hygiene, or by regulators in OSHA.
2:51. “Embedding” compliance into in-house OSHA compliance programs– Director/vice-president for safety and health
As noted above, OSHA’s Management Guidelines recognize the importance of top level management and encourage them to set the tone for in-house compliance. Visible participation by the highest levels of the enterprise management is vital for demonstrating management’s commitment to OSHA compliance.1
2:52. “Embedding” compliance into in-house OSHA compliance programs– Industrial hygienists
Industrial hygienists provide the front line for investigation and reporting of occupational safety and health hazards. They are responsible for implementing credible and accurate in-house
1
See §1:80 for discussion of International Union, United Auto., Aerospace and Agr. Implement Workers of America, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, 55 Fair Empl. Prac. Cas. (BNA) 365, 14 O.S.H. Cas. (BNA) 2102, 55 Empl. Prac. Dec. (CCH) P 40605, 1991 O.S.H. Dec. (CCH) P 29256 (1991).
1
See §2:44.
mechanisms which record illness, injuries and hazards in the workplace and for implementing training and administration of occupational health-related programs designed to prevent death or serious injuries and to ameliorate working conditions. It is their duty, as troubleshooters in the workplace, to ferret out major sources of harm by identifying hazards and recommending modifications in working conditions that will reduce or eliminate workplace hazards. Their recommendations may include:
(1) changes in work practices;
(2) modifications of existing facilities;
(3) suggested rotation of employees to reduce unavoidable hazardous exposures;
(4) temporary transfer of employees who exhibit the early signs of biomedical effects (such as chemical sensitivity or increased blood lead); and
(5) requests for engineering controls.
Their work also provides the foundation for sound in-house hazard communication education and training under OSHA’s standard.1
In-house industrial hygienists are agents of the employer whose full-time role within the enterprise is hazard prevention. Where feasible, hazards may be prevented by effective design of the job site or job. If hazard elimination is not feasible, hazards should be controlled to prevent unsafe and unhealthful exposure. Industrial hygienists are trained to develop the means for eliminating or ameliorating these hazards. Since their specific responsibilities concern the application of workpractice controls that will enhance occupational safety and health protections, the in-house compliance team, and corporate counsel in particular, should seek the industrial hygienist’s professional opinion regarding the accuracy of statements or information to be disseminated within the framework of hazard communication.
2:53. “Embedding” compliance into in-house OSHA compliance programs– Shop stewards and employees with “hands-on information”
It is universally agreed that effective safety and health management is the decisive factor in ensuring worker safety and health, and that employee involvement is pivotal in determining the ultimate success of in-house compliance programs. Well-informed employees in the workplace who confront direct contact with hazardous emissions or other potential hazards are an untapped resource crucial to establishing and maintaining a compliance team. Their insights about actual working conditions in the facilities at the enterprise are an invaluable source of available expertise. This view has often been expressed in industrial hygiene literature, because employee participation and cooperation is so important when shaping successful industrial hygiene programs. Industrial hygienists who conduct tests, safety inspections and other evaluations without the cooperation of the affected workers are less likely to produce a custom-made model program that provides adequate protection. Workers’ ability to foster or sabotage a program is especially critical in a worksite where use of personal protective equipment and worker participation in cleaning, checking and correcting routine problems encountered in the use of hazardous substances are key components of the industrial hygiene program. Thus, industrial hygienists and, in turn, in-house safety and health compliance initiatives, have a professional need for information that becomes available only by maintaining a rapport with
1
29 C.F.R. §1910.1200.
See chapter 3.
workers.
Joint Safety Committees or other in-house occupational safety and health compliance programs need the unique perspective of the employees as one of the foundations of an effective program. Employee participation may take any number of forms. For example, employee input can provide the system for notifying management about potentially hazardous conditions serves as a major means of initiating worksite analysis to identify hazards.1 OSHA’s own experience, reflected in its Voluntary Protection Programs, indicates a clear need for a system under which employee reports of safety and health concerns are encouraged, protected from reprisal, and given an appropriate response in a reliable and timely fashion.
Some compliance programs may also include the concept that all employees who do not meet their own responsibilities regarding health and safety may be subject to disciplinary action. In its guidelines, OSHA views enforcement of disciplinary procedures as one approach to safety and health protection. More importantly, employees must understand the hazards to which they may be exposed and the appropriate precautions in order to prevent harm to themselves and their colleagues. Forms of participation which engage employees more fully in systematic prevention include involving employees in:
(1) inspecting for hazards and recommending corrections or controls;
(2) analyzing jobs to locate potential hazards;
(3) developing or revising general rules and procedures for safe work;
(4) training newly hired employees and existing co-workers in safe work procedures and rules;
(5) providing programs and presentations for safety meetings; and
(6) assisting in accident investigations.
2:54. “Embedding” compliance into in-house OSHA compliance programs– Medical personnel
The compliance team should have access to the best and most recent information concerning biomedical testing and medical surveillance. OSHA requires medical testing under certain standards, such as the lead standard.1 Jobs that have exposure to asbestos particulates, for example, require pulmonary testing and X-rays to look for pleural plaques or other irregularities. OSHA requires blood tests to determine the absence or presence of benzene, cadmium, carbon disulfide, carbon monoxide, dimethylformanide, ethyl benzene, n-m hexane, lead, methyl chloroform, methyl ethyl ketone, organophosphorus cholinesterase inhibitors, parathion, pentachlorophenol (PCP), perchloroethylene, phenolstyrene, toluene, trichloroethylene, xylene, and other toxic or hazardous chemicals.
In order to properly make such determinations, a Board Certified occupational Health Physician, a Certified Occupational Health Nurse (COHN), or an allied health professional should serve as a resource to the in-house compliance team. If there are no health professionals on staff for the enterprise, an effort should be made to contact such health professionals in order to draw upon their expertise for the benefit of developing and implementing in-house compliance
1
OSHA Management Guidelines, 54 Fed. Reg. 3904 (1989).
1
29 C.F.R. §1910.1025.
programs.
2:55. “Embedding” compliance into in-house OSHA compliance programs– Use of interactive computer training and CD ROMs
Sitting before the awesome velvet curtains of that august body, the U.S. Supreme Court, while listening to my colleagues skillfully work their craft of oral argument, their riveting and compelling voices, their gestures, mannerisms and attire underscores the importance of live personal contact as a component of fine lawyering, even in this technological age. Some things cannot be faxed, or emailed, in this context, where the live impressions are not preserved by video or movies or available on the Web, but are only archived in the dusty recording devices of a few privileged viewer’s minds. What contrast, between the refined and ancient art of oratory, and email, fax and other computer technology that can serve as learning tools that are key components of law office management and law teaching and in training for occupational safety and health compliance programs, found in offices and classrooms just around the corner, or even within the courts themselves!
Or is it? Email and faxes are much more than mere tools for transmitting memos and letting colleagues know the date, time and location of their meetings, although such devices are indeed extremely efficient for that purpose. Email, Web sites, interactive computer training and other computer-based tools for disseminating occupational safety and health information should be part of an array of compliance training techniques. In a manner similar to electronic exams in law school, this approach has the advantage of allowing students to return to concepts they did not understand and to clearly express their ideas using word processing, although it also has the drawback that technical glitches in a system may lose text or distract from the learning process.1
Actually, the best in-house OSHA compliance programs use a multi-sensory approach that blends the advantages of these media, whether coordinating meetings or writing briefs for the U.S. Supreme Court. Some programs can use the same email system to send test scores and corrected papers to employees after training, with their scores fully recorded and available to both management who are responsible for their comp[liance] goals and to OSHA inspectors and other internal auditors. Some companies also use the in-house “intranet” to post compliance policies, maintain Materials Safety Data Sheets (MSDS) as required for Hazard Communication training, and respond to in-house compliance inquiries. Some systems can be custom tailored using intranet email combined with color and sound technology to develop interactive training for clients, on the internet, using color images, graphics, moving images, interactive capabilities and sound. Here, information can be conveyed expertly and swiftly to many employees of the same client at the same time, in a custom tailored program to meet the client’s compliance needs. In addition, managers and legal staff, can obtain reports of the training activities and scores for employees, by email. According to Kirk Jordan, President of Compliance Systems Legal Group, such information can be vital to to document a compliance program, and for follow-up of training activities. Using this approach to existing, low-cost technology will bring a new, sharper dimension to in-house compliance programs. And there will be records of these activities in software format, also accessible in hard copy.
1
See generally American Association of Law Schools, Workshop on Teaching With Technology: First Steps and Beyond, AALS, Washington, D.C., 1997.
2:56. “Embedding” compliance into in-house OSHA compliance programs– Chemists and toxicologists
The compliance team should have oversight in the development of an in-house database with the assistance of a toxicologist or a chemist, whereby special concerns such as reproductive health hazards can be tagged during the general cataloging of information. The compliance team should have access to a toxicologist, either in-house or as a consultant. Computer resources with access to major databases such as Toxline are also essential because such databases are frequently updated. A chemist or toxicologist’s input is important when confronted by mysterious new chemicals or compounds that are unlike other substances already in use. In such cases, chemists will be able to analyze the chemical structure of the substance; a toxicologist might be able to determine whether there is something toxic resulting from the chemical’s structure or biochemical reactions. The assistance of these professionals is therefore useful in preventing foreseeable harms.
2:57. Use of OSHA pamphlets and consultation
OSHA encourages voluntary amelioration of working conditions by providing pamphlets and consultation services to develop compliance programs for small enterprises and through its ongoing work with the association of VPP enterprise representatives. For this reason, the thrust of VPP and the guidelines based on the recent success of these initiatives is designed to engage enterprises in an ongoing working relationship between employers and regulators through interactive compliance1 to foster the most effective occupational safety and health programs possible. In addition, OSHA observed, many of the health professionals who answered its request for comments agreed that a significant number of worksites, particularly at medium and small businesses, often lack the professional resources to develop adequate safety and health management practices and programs on their own. In order to achieve this aspect of enhanced OSHA compliance, the agency is fostering the development of federally funded state and regional consultation programs and compiling supplementary materials to facilitate implementation of its regulatory goals without promulgating regulations, which will be available for personnel involved in the development of safety and health compliance programs.
2:58. Use of videotapes to educate compliance team and managers
Industrial Training Systems Corporation, (ITS)1 is one of several consulting companies that produces a wide range of custom-tailored and generic instructional videotapes pertaining to OSHA compliance and hazard communication. These videos may not answer all of the issues that will arise in a given enterprise, but they are an excellent starting point for discussion by members of the compliance team. ITS videos, in particular, provide succinct analysis of basic information that compliance team members and supervisors need in order to identify hazards and determine the course of action for in-house programs.
In addition to saving training time by offering participants the opportunity to review certain portions at their leisure, training videos can familiarize senior management with
1
Sigler & Murphy, Interactive Corporate Compliance (1988).
1
Industrial Training Systems Corp., 9 E. Stow Road, Marlton, N.J. 08053.
specialized terms of art, thereby facilitating the process of developing a common language for implementing safety and health policies.
Videos use the real-life experiences of front-line supervisors who describe their personal experiences with OSHA enforcement proceedings. Some videos feature renowned television journalists who have a reputation for accurate reporting of hard news to capture their viewers attention. This approach immediately makes the viewer feel comfortable with the information on the in-house television video screen. The audience’s recognition of the television journalist builds confidence in the validity and seriousness of the information contained in the video. The professional demeanor and concern exhibited in all of these videos underscores the significance of this topic for managerial staff. Its message is also clear: Managerial staff may be held accountable for the many accidental harms that can occur in the workplace. Other videos discuss OSHA’s Hazard Communication Standard by providing a self-test on key occupational safety and health terminology.
To assist managers’ understanding of the effect their own behaviors may have upon in-house compliance, videotaping demonstration programs or other multi-media outreach efforts may also be useful. Creative programs might also offer managers the opportunity to watch their staff and themselves on videotape, in order to determine which work practices are safest among their existing procedures, to identify hazards, and to prioritize their in-house compliance goals. This would use the video camera as a source of instant feedb