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Government Regulation of Safety In the Workplace

Filed under Office & HR.

Maintaining safe and healthy working conditions are required by government regulations and also make sense for business economic reasons.

There are plenty of good reasons why any business would want to maintain a safe workplace. Other than the basic human desire to avoid pain and suffering, workplace accidents can destroy your business!

Thousands of Americans are killed each year in on-the-job accidents, and many more suffer work-related disabilities or contract occupational illnesses. Some of the high monetary costs attached to workplace accidents include:

  • the inability to meet your obligations to customers
  • wages paid to sick and disabled workers
  • wages paid to substitute employees
  • damaged equipment repair costs
  • insurance claims
  • workers' compensation claims
  • administrative and recordkeeping costs

It's easy to imagine the effect that workplace accidents have on the morale of employees. Co-workers are often friends and witnessing an accident involving a co-worker can be particularly disturbing. Even if they don't seek employment elsewhere resulting in high turnover problems, it would be difficult for employees to focus on doing the best job possible if they're worried about their safety.

In addition, while both humanitarian desires and economic good sense have encouraged employers to create and maintain safer and healthier working conditions, employees, unions, and government agencies have applied pressure for greater efforts.

Federal Occupational Safety and Health Administration (OSHA) regulations govern workplace safety and no matter what business you are in, you should know and comply with the rules that apply to that business. General rules apply to just about any business and fines and penalties for violations can be severe!

Once you understand the government's role in regulating workplace safety, familiarize yourself with major workplace safety issues, including newer types of risks, such as workplace automation hazards, AIDS and biohazards, that your business may have to deal with.

With the necessary knowledge of your responsibilities and the safety issues involved, you can then access available resources to develop and document a safety program and train your employees to avoid workplace accidents.

The Occupational Safety and Health Act (OSHA)

Your legal obligations to provide a safe work environment for your employees arise primarily from a federal law known as the Occupational Safety and Health Act (OSH Act). OSHA was enacted in 1970 to address the uneven patchwork of state laws regarding workplace safety, and to respond to the growing number of serious injuries and deaths occurring in the workplace. OSHA is administered by the Department of Labor under the direction of the Assistant Secretary of Labor for Occupational Safety and Health.

Absent an accident, a small business owner isn't likely to be visited by federal health and safety inspectors very often, if at all. Unfortunately, if an accident does occur and you're found to be in violation of applicable safety rules, the consequences of the accident can be compounded. Not only must you bear the consequences of the accident (such as being unable to meet your obligations to customers), you may also have to pay government fines and other costs. So, it's worthwhile to have a general understanding of the legal underpinning of the safety standards that apply to almost every employer:

  • All businesses have a duty to comply with some general rules under what's called a general duty clause.
  • All businesses must also comply with industry-specific requirements and guidelines, known collectively as OSHA standards.

State safety regulation. Although your safety obligations originate directly at the federal level, states have the right to develop their own standards under a federally approved state plan. The standards under a state plan may differ from federal OSHA regulations, but must be at least as effective as the federal standards. Some states have established and administer their own state plans for workplace safety. If your business is in a state that has a state plan, you must comply with it. If your state does not have a state plan, you must comply with federal OSHA laws. For more information about these plans, contact your particular state labor department.

Are You an Employer Subject to OSHA?

The Occupational Safety and Health Act is a comprehensive law — it covers most employers. Unless you are sure your business is exempt, you should assume that the law applies to you.

Generally, if you have employees, you are probably covered by OSHA. If you have none, you usually aren't covered, although in some cases businesses who use workers such as independent contractors are still subject to OSHA.

Specifically an employer under the Act is a person engaged in a business affecting commerce who has employees, but does not include the United States or any state or political subdivision of a State. You are probably subject to OSHA requirements if you:

  • are in control of the actions of your employee
  • have power over the employee
  • are able to fire the employee

Some of the usual indications of an employment relationship, such as who pays the employee, are not part of the definition of an employer under OSHA. There are special circumstances if you are one of multiple employers or if you have workers other than employees.

Employers Exempt From the Act

There are some very specific exemptions to employers covered by the Act. The following employers are not covered by the OSH Act:

  • self-employed persons
  • farms at which only immediate members of the farmer's family are employed
  • those whose working conditions are regulated by other federal agencies under other federal statutes (This includes most employment in mining, nuclear energy and nuclear weapons manufacture, and many segments of the transportation industries.)
  • persons who employ others in their own homes to perform domestic services such as housecleaning and child care
  • churches and nonsecular church activities
  • states and political subdivisions (although some state plans cover public employees)
  • employers not engaged in interstate commerce

Interstate commerce is defined so broadly that it covers almost all economic activity in the United States. If you, as an employer, purchase materials that came from out of state or use the telephone or mails, you are engaging in interstate commerce for purposes of this Act.

Small business exemptions. OSHA exempts small businesses with 10 or fewer employees from injury and illness reporting. Small businesses in specified low-hazard industries are exempt from programmed inspections. The exempt categories are characterized by standard industrial classifications (SICs). Exempt categories include but are not limited to:

  • auto dealers and gasoline service stations
  • apparel and accessory stores
  • furniture, home furnishing, and equipment stores
  • eating and drinking places
  • miscellaneous retail
  • security and commodity brokers
  • insurance agents, brokers and services
  • real estate
  • holding and other investment offices
  • personal services
  • business services
  • legal services
  • educational services
  • membership organizations
  • private households
  • miscellaneous services

Multiple Employer Situations

What if you find that you are one of several employers at a job site who share authority or control over some employees? In case of an injury or violation, you need to determine who is liable for the damages or penalties. The OSH Review Commission considers many factors in determining whether the employer cited by OSHA had the responsibility for protecting the worker who was hurt or at risk:

  • Who is responsible for controlling the employee's work?
  • Who has the power to control the employee's work?
  • Who has the power to fire the employee or to modify the conditions of employment?
  • Who does the employee consider to be his employer?
  • Who pays the employee's wages?

The first three factors, related to the issue of who controls the work environment, are given particular emphasis in determining who is the employer under the Act. The employee's belief as to who his or her employer is and who pays his or her wages has some bearing on the employment relationship in these situations as well.

If OSHA doesn't apply to your business, are you home free? The answer is "no." OSHA may apply to workers you use in your business.

Are Your Workers Covered by OSHA?

In general, OSHA imposes responsibility on employers with respect to the safety of their employees. But what about workers who aren't technically your employees? The responsibility that OSHA imposes on employers for their workers' safety depends on the employment relationship between the two. Different employment relationships bring different responsibilities:

  • Loaned employees. When employees are loaned by one employer to another, the employer with control over the employees is responsible for assuring their safety.
  • Leased equipment and operators. When equipment is leased with an operator, the company providing the equipment and operator is generally held to be the employer responsible for compliance with standards relating to the use of the equipment.
  • Temporary employees. Sometimes you can be held responsible for the safety of temporary employees.

An auto parts business that used the services of warehouse workers provided by a temporary personnel referral service was the workers' employer and was subject to OSHA recordkeeping requirements for those workers. The auto parts business paid the referral service to do its personnel-related recordkeeping and paperwork, but the service had no control over the workplace and therefore, over workplace hazards.

  • Independent contractors. In determining responsibility for employee safety, OSHA goes beyond the form of an alleged independent contractor relationship and examines the substance of the working arrangements to determine whether the one who contracted for the services or a subcontractor may be considered the employer under the Act.

An electrical subcontractor, whose workers were carried on a prime contractor's payroll as a convenience until the subcontractor received its license, was the employer of the workers. On the other hand, a produce harvesting and marketing business was considered the employer of migrant farm workers rather than the crew leader with whom it contracted to provide workers.

  • Partner or employee. The formal structure of the business does not control the determination when the economic reality is that the workers are in the same position as employees.

A custom shoe making business changed from a sole proprietorship to a partnership in which the workers shared in the profits and losses. However, the business remained the employer in the relationship because the former proprietor supervised all activities and controlled all labor practices and policies. The workers continued to receive an hourly wage, could be hired and fired, were assigned duties, and were generally treated as employees.

Therefore, an employer's responsibility under OSHA for its workers' safety depends on the employment relationship between the employer and the workers.

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