Occupational Safety and Health Administration overview

Political Science

OSHA

The Occupational Safety and Health Act (OSHAct) of 1970 was passed by Congress in order to make sure that every working person in the country had safe and healthful working circumstances and to preserve human resources. Under the OSHAct, OSHA was put into place within the Department of Labor and was sanctioned to control health and safety conditions for all employers with very few exceptions. OSHA was created in order to:

persuade employers and workers to decrease workplace dangers and to put into practice new or advance existing safety and health principles make available research in occupational safety and health and build up innovative ways of dealing with occupational safety and health problems set up separate but dependent tasks and rights for employers and workers for the attainment of better safety and health circumstances uphold a reporting and recordkeeping system to watch job-related injuries and illnesses found training programs to augment the amount and competence of occupational safety and health personnel expand obligatory job safety and health standards and put them in force efficiently (Occupational Safety and Health Administration, 2010).

Under the OSH Act, employers are accountable for supplying a secure and healthful workplace. OSHA's mission is to guarantee safe and healthful workplaces by setting and implementing standards and by providing training, outreach, education and assistance. The Occupational Safety and Health Administration is dedicated to strong, reasonable and effective enforcement of safety and health necessities in the workplace. OSHA inspectors which are known as compliance safety and health officers, are knowledgeable, well-trained industrial hygienists and safety professionals whose objective is to guarantee observance of OSHA requirements and aid employers and workers decrease on-the-job dangers and avert injuries, illnesses and deaths in the workplace. Usually, OSHA carries out inspections with no advance warning. Employers have the right to call for compliance officers to get an inspection warrant before go into the worksite (OSHA Inspections, n.d.).

Since OSHA is not required to wait until a worker is injured before inspecting a particular workplace, some people have argued that OSHA inspectors should be required to have probable cause based on evidence that a particular workplace has become dangerous before the inspector can enter the premises to conduct a safety inspection. The questions being looked at in this paper is how would OSHA's effectiveness be impacted if the courts held that inspectors must have probable cause based on evidence of dangerousness before being allowed to inspect?

For over forty years, OSHA has been working to look after America's workforce as required by the OSH Act of 1970. The prime purpose has been to guarantee safe and healthy working circumstances for working men and women by sanctioning enforcement of the principles developed under the act; by supporting and supporting the states in their labors to guarantee safe and healthful working circumstances by supplying research, information, education, and training in the field of occupational safety and health (Coniglio, 2010).

In the act there is a section that deals specifically with the topics of inspections, investigations and recordkeeping. It states that in order to perform the reasons of this act, the Secretary, upon providing suitable qualifications to the owner, operator, or agent in charge, is certified:

1) to go into the business without holdup and at rational times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by a worker of an employer

2) to examine and inspect throughout regular working hours and at other rational times, and within practical limits and in a sensible manner, any such place of employment and all relevant conditions, structures, machines, equipment, devices, apparatus, and materials therein, and to question confidentially any employer, owner, operator or worker (Coniglio, 2010).

It is obvious that not all the workplaces that are part of the Act can be examined right away. The philosophy is that the worst situations would get attention first. Thus, OSHA has put into place a system of inspection priorities. Imminent danger circumstances are given top concern. An imminent danger is any situation where there is rational confidence that a hazard exists that can be anticipated to cause death or serious bodily injury right away, or before the hazard can be eradicated through usual enforcement measures. Serious physical injury is any type of damage that could cause lasting or extended harm to the body or which, while not hurtful to the body on a long-drawn-out basis, could cause such temporary disability as to require hospital treatment. Examples of everlasting or long-drawn-out damage include: a part of the body being crushed or severed; an arm, leg or finger being amputated; or sight in one or both eyes is lost. This type of damage also comprises that which makes a part of the body either functionally ineffective or considerably abridged in competence on or off the job. Temporary disability necessitates hospital treatment includes injuries such as simple fractures, concussions, burns, or wounds involving considerable loss of blood and necessitating widespread suturing or other healing aids. Injuries or illnesses that are hard to detect are categorized as serious if they restrain a person in performing standard functions, lead to lessening in physical or mental efficiency or shorten life (OSH Act, OSHA Standards, Inspections, Citations and Penalties, 1996).

Health dangers may comprise imminent danger circumstances when they present a serious and instant threat to life or health. For a health danger to be measured an imminent danger, there must be a realistic anticipation that toxic substances such as hazardous fumes, dusts or gases are present, and that contact with them will cause direct and irreparable harm to such an extent as to shorten life or cause decrease in physical or mental competence, even though the ensuing harm is not instantly obvious. Workers should tell the manager or employer right away if they detect or even think there is an imminent danger situation in the workplace. If the employer takes no action to get rid of the danger, a worker or the certified worker representative may inform the nearest OSHA office and ask for an inspection. The demand should name the workplace location, specify the danger or condition and include the workers name, address and telephone number. Even though the employer has the right to observe a copy of the complaint if an inspection takes place, the name of the worker is withheld if the worker so requests (OSH Act, OSHA Standards, Inspections, Citations and Penalties, 1996).

Upon inspection, if a pending dangerous situation is found, the compliance officer will ask the employer to willingly stop the hazard and to take away endangered workers from contact. Should the employer fail to do this, OSHA, by way of a regional solicitor, may apply to the nearest Federal District Court for suitable legal action to right the situation. Prior to the OSHA inspector leaving the workplace, they will counsel all affected workers of the hazard and post an imminent danger notice. Judicial action can create a temporary restraining order or immediate shutdown of the operation or section of the workplace where the imminent hazard exists. Should OSHA randomly or erratically decline to bring court action, the affected workers may sue the Secretary of Labor to force the Secretary to do so (OSH Act, OSHA Standards, Inspections, Citations and Penalties, 1996).

Walking off the job for the reason that there is a potentially dangerous workplace condition is not normally a worker right. To do so, may consequence in punitive action by the employer. Nevertheless, a worker does have the right to decline to be exposed to a looming hazard. OSHA rules guard workers from prejudice if:

Where probable, they requested the employer to get rid of the hazard, and the employer failed to do so The hazard is so immediate that there is not adequate time to have the hazard eradicated through usual enforcement measures

The hazard facing the worker is so bad that a reasonable person in the same circumstances would conclude there is a real hazard of death or serious bodily harm

The worker has no sensible option to refusing to work under these circumstances (OSH Act, OSHA Standards, Inspections, Citations and Penalties, 1996).

Second priority is given to the investigation of deaths and catastrophes resulting in hospitalization of three or more workers. Such circumstances must be told to OSHA by the employer within eight hours. Investigations are made to establish if OSHA principles were violated and to stay away from repetition of similar accidents (OSH Act, OSHA Standards, Inspections, Citations and Penalties, 1996).

Third priority is given to worker complaints of supposed violation of principles or of dangerous or unhealthful working circumstances. Also included in this group are serious referrals of dangerous or harmful working circumstances from other sources, such as local or state agencies or departments. The Act gives each worker the right to ask for an OSHA inspection when the worker feels that they are in impending danger from a danger or when they feel that there is an infringement of an OSHA rule that threatens bodily harm. OSHA will uphold privacy if asked for, will tell the worker of any action it takes concerning the complaint and, if asked for, will hold an unofficial review of any judgment not to inspect. Just as in circumstances of impending hazard, the workers name will be withheld from the employer, if the worker so asks (OSH Act, OSHA Standards, Inspections, Citations and Penalties, 1996).

Next in priority are automatic, or intended, inspections intended at precise high danger industries, jobs or health materials. Industries are chosen for inspection on the source of factors such as the death, injury and illness occurrence rates, and worker contact with toxic substances. Special emphasis may be local or nationwide in scope, depending on the allocation of the workplaces concerned. States with their own occupational safety and health programs may use rather dissimilar systems to recognize high danger industries for inspection (OSH Act, OSHA Standards, Inspections, Citations and Penalties, 1996).

The next inspections that are done are follow-up ones. A follow-up inspection establishes whether formerly cited breaches have been fixed. If an employer has failed to stop a breach, the compliance officer notifies the employer that they are subject to notification of failure to abate alleged violations and may face added planned daily penalties while such failure or breaches persist (OSH Act, OSHA Standards, Inspections, Citations and Penalties, 1996).

Even though the governing OSHA statutes allow workplace inspections without search warrants, the United States Supreme Court has affirmed that provision unconstitutional; ruling that if the employer objects to a search, the OSHA inspector must get a search warrant. This has led to many confusing and inconsistent practices taking place across the country. In the case of Marshall v. Barlow's, Inc., 436U.S. 307,56L Ed. 2d305 (1978), the court ruled that the search warrant must be obtained from a court, but the process and requirements for obtaining search warrants permitting inspection by OSHA inspectors continues to be unclear. In the Tenth Circuit Federal Court the rule is that search warrants may be obtained ex-parte, that is, without giving the employer prior notice or a chance to oppose the issuance of the warrant in court. Marshall v. W and W. Steel Co., Inc., 604 F.2d 1322 (10th Cir. 1979), however, courts will sufficient cause grant warrants only upon proof that there is a strong probability that a violation is taking place (OSHA Inspections, 2011).

In other federal jurisdictions, the rule is something different. In the Third Circuit Federal Court the courts require that employers whose workplaces are to be searched must be given prior notice and have an occasion to object to the issuance of search warrants to permit inspections of their workplaces. Yet, the basis for that requirement seems to rest upon inappropriate rule-making procedures by the Secretary of Labor, who has since tried to comply with appropriate procedures by inviting required public comment before accepting regulations permitting ex-parte warrants. A mixture of employer groups, including the Associated General Contractors, has been active in challenging the planned new regulation (OSHA Inspections, 2011).

Another unresolved issue has to do with what confirmation the OSHA people must provide to the courts with their applications for search warrants. In the United States Supreme Court decision mentioned above, five Justices joined in the majority, and three Justices dissented The majority decision suggests that a presentation of administrative need for inspection would be sufficient instead of the probable cause of violation required for criminal warrants. On the other hand, since OSHA violations may also consequence in criminal prosecutions, the same showing necessary to obtain criminal search warrants may be needed. In any event, the majority opinion does consent that the warrants counsel the employer of the scope and substance of the search. That would at least limit the inspector's search to a degree (OSHA Inspections, 2011).

It is clear that criminal probable cause is not necessary for an OSHA inspection warrant, even though criminal penalties may be levied for willful violations of safety and health standards. For reasons of an administrative search, probable cause justifying the issuance of a warrant may be founded either on detailed evidence of a present OSHA violation, or on a showing that realistic legislative or administrative principles for performing an inspection are fulfilled with respect to a particular company. A warrant presenting that a precise business has been chosen for an OSHA search on the foundation of a basic administrative plan for the enforcement of the Act resulting from unbiased sources such workers within a variety of types of industries across a given area, and the preferred occurrence of searches in any of the lesser divisions of an area, would guard an employer's Fourth Amendment rights. Probable cause is not necessary if an employer without restraint voluntarily consents to an inspection (Connolly & Crowell, 2005).

"Administrative probable cause may arise on the basis of any of three broad types of information:

1. General information about the employer's industry

2. General information about the employer

3. Specific information about he employer's work place.

Employee complaints are the most common source of specific information about the employer's workplace. General information about the employer's industry and the employer' own establishment is gathered by OSHA and includes industry-wide statistics on injury and accident rates and OSHA violations as well as information about the products and material handled by industry employees" (Connolly & Crowell, 2005).

If the courts eventually decided that strict probable cause will be required before OSHA inspectors can go into a workplace there will be many violations that will not be discovered before major harm is done. Some examinations of OSHA have understood that the injuries barred by inspections are restricted to those that are cited by compliance officers. In all probability, the device here is that inspectors recognize and cite infringements of standards; employers right the infringements in order to steer clear of potentially large penalties for failure to abate; and the abating of the breach decreases the amount of harms caused by that particular kind of danger. The inspection decreases harms first and foremost by making the cost of non-fulfillment with a potentially harm causing danger exceed the advantage of non-fulfillment (Mendeloff & Gray, 2005).

A rather broader model believes that inspections, particularly those that impose penalties, encourage a larger overall compliance endeavor by the business. In this case, one might anticipate a decline in harms that are caused by any kind of breach of OSHA standards, not just the kind or kinds cited in the inspection. In the above example, the inspection may augment the company's approximation of the likelihood of a potential inspection; whether it augments its anticipation about potential penalties probably depends on the consequences it gets relative to its anticipation. In the end in both views the inspection reminds companies of their lawful obligations and moral responsibilities to obey (Thornton, Gunningham & Kagan 2005).

When looked at according to OSHA enforcement by Scholz and Gray (1990), an inspection that finds grave issues at a workplace may surprise executives and lead them to pay more attention to safety matters. Being required to pay a fine for the breach may draw further attention to safety issues. It is further supposed that when executives pay more attention to safety issues this is done in a general way, and could include dangers that are exterior to the scope of those dealt with by existing OSHA principles (Mendeloff & Gray, 2005).

There are many cases that can be made for the continuance of surprise inspections by OSHA. One example is in the case of Lakeland Enterprises of Rhinelander, Inc. v. Chao, 402 F.3d 739 (7th Cir. 2005). In this case a sewer and water contractor (Lakeland) in northern Wisconsin was doing excavation work at an industrial park when an OSHA inspector, driving by, decided to stop and carry out an unplanned inspection. After walking past traffic cones that were restricting street traffic from the project site, the inspector saw a Lakeland worker excavating a trench with a backhoe while another worker worked at the bottom of the trench. The trench was about eighteen feet deep and six feet wide at the bottom and did not contain a ladder or trench box (Farrell, 2006).

When the contractor's project superintendent started talking with the OSHA inspector, the employee in the trench climbed up one of the walls to get out, which resulted in loose dirt falling back into the trench. The worker performing the excavation work confessed that he knew that the other worker was not supposed to be working in the trench and that he had not removed him. OSHA gave out three citations and assessed a forty-nine thousand dollar civil penalty against the contractor, including a willful violation for allowing a worker to work in an unprotected trench. During the evidentiary hearing, the contractor moved to suppress the evidence attained from the inspection on the foundation that the OSHA inspector's warrantless search of the excavation site violated the Fourth Amendment. The administrative law judge denied the motion, saying that the contractor had no right of privacy at the excavation site because the land was located on a public road. Additionally, the administrative law judge concluded that any Fourth Amendment claim was waived since the contractor failed to object to the inspection or ask for a warrant at the time (Farrell, 2006).