What OSHA Coverage Means and Workers’ Rights
Public workers in states that have federally approved OSHA programs have important rights. Many of the states with non-federally approved public employee OSHA laws also have similar rights:
The Right to a Safe Workplace
Employers must provide a workplace that does not have hazards that are known to cause death or serious harm. This is known as the “General Duty” clause in the OSHA law.
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. {Section 5.(a)(1)}
The general duty clause is the section of the OSHA law that can be used to protect workers from hazards that are known but are not covered by standards. For example, at this time there are no OSHA standards for indoor air quality, ergonomics, most infectious diseases, and violence in the workplace. It is more difficult for OSHA to cite employers under the General Duty clause than an OSHA standard.
Safety and Health Standards
OSHA standards are regulations that employers have a legal obligation to follow. There is a set of standards for construction work. There is another set for General Industry, which applies to all other covered workplaces. The standards cover a wide variety of hazards such as: chemicals, radiation, machine guarding, fire protection, trenching operations, noise, HIV, the use of respirators and other protective equipment, and many more.
Most state OSHA programs use the federal standards. Some states have standards for hazards not covered by federal OSHA. For example Minnesota has added a standard to protect workers against exposure to heat.
Inspections
Workers can have their workplaces inspected by OSHA when they think there are dangerous conditions.
The employer should not know about the inspection ahead of time!
Workers have the right to file a complaint and keep their name from their employer. Another way to protect workers from retaliation from their boss is to have the union file the complaint.
Workers or the union should request an inspection in writing after management has been made aware of a hazard and has not fixed the problem. This is called a “formal” request. Some states will accept complaints over the phone. This is called an “informal” request and the OSHA inspector may decide to contact you by phone to see if there is a way to fix the problem with the employer without actually making an inspection.
There are three steps to a worksite inspection.
1) The Opening Conference: This is a meeting between the employer, the union representative and the inspector. Employer records and policies are reviewed.
You can keep your name from your employer when you file a complaint!
2) The Walk-Around Survey: This is the physical inspection of the workplace. The inspector takes notes and photographs of hazards. The inspector may also measure noise, chemicals and other hazards.
3) The Closing Conference: This is a meeting of the inspector, employer and union representative after walking through the workplace. The inspector reports on violations of OSHA standards. The inspector also reviews what should be done to fix problems and how much time the employer has to correct these problems.
Union Representation During the Inspection
A union representative has the right to walk through the workplace with the inspector. The right of the union representative to be paid during the inspection depends on state laws.
Enforcement of Safety and Health Standards
OSHA inspectors must NOT inform the employer of an inspection ahead of time. The inspectors can enforce health and safety standards and the General Duty clause. The inspector may issue a written citation against an employer if there are violations of the standards. The citation describes the problem and what rule has been broken. The citation tells what the employer must do to fix (“abate”) the problem. It also states how much time the employer has to correct these problems.
The inspector decides if a violation is minor, serious or even willful. Depending on the state, employers can be fined thousands of dollars depending on how serious the violation is. In some states, OSHA cannot fine public employers.
The employer has the right to fight a citation. The employer can say there is no violation. The employer can also object to the size of the fine, what it will take to fix the problem, and how much time the employer will have to make changes. This process can go on for months and even years.
The workers and union have more limited rights. The union can only challenge the date by when the problem must be fixed (abatement date).
Information About Hazards
Employees and union representatives have the right to get information, including injury records, certain medical results, material safety data sheets, air or noise and other measurements. See Chapter 3 for more details on collecting information.
Protection from Discrimination and Refusing Unsafe Work
The OSHA law states that employers cannot discriminate against workers who use their rights to protect themselves. Workers: are entitled to information; should be provided with safe working conditions; and can ask for an inspection without being afraid of what the employer will do to get back at the worker.
It is important for the union to stay involved after there has been an inspection and the employer has received a citation. The union should tell OSHA they want to have "party status." This means the union will be able to attend meetings and submit infrmation when the case is heaard.
Important! What To Do If You Are Told To Do Work That You Think Might Kill or Injure You
DO NOT JUST SAY YOU WILL NOT DO A JOB! Tell the supervisor that you believe that there is a serious hazard. If the supervisor still tells you to do the job anyway, then take these other steps:
If your employer still does nothing to make the situation safe, you face a tough choice. Do not risk your life. Taking these steps will help you win a grievance or OSHA complaint if you are disciplined for refusing unsafe work.
A worker has a right to refuse to do a job if that worker feels he or she may get killed or seriously injured. There are times when workers face death or serious injury on the job. This is called an “imminent danger” situation. Workers have the right to refuse to perform work that puts them in imminent danger. This protection also applies if the worker has reasonable grounds to believe that they would be seriously injured or killed.
Using OSHA’s General Duty Clause
There are many hazards for which OSHA has no regulations. These include infectious diseases, ergonomics, workplace violence and indoor air quality. In these cases, it is sometimes possible for OSHA to cite an employer under the General Duty clause (paragraph 5(a)(1) of the federal law).
The union will need to assist OSHA in building its case in order to sustain a General Duty clause citation. OSHA must prove:
Complaints about State OSHA Programs
You have the right to complain about your state OSHA program. A Complaint About a State Program Administration (CASPA) can be filed with the nearest federal OSHA regional office.
A complaint should be about a specific problem. The problem could be a bad inspection, telling the employer of an inspection ahead of time, not enforcing standards, or not protecting workers who have been disciplined for trying to make the workplace safe. Contact your staff representative before filing a CASPA.
