Workers’ Rights Under the OSH Act

Although workers have many rights under the OSH Act, we discuss only the two most basic ones in this article.

First, workers have a right to complain to OSHA about safety or health conditions without being penalized for doing so. Retaliating against employees who have made such complaints is a violation of OSH Act provisions.

Second, in some situations, workers have a right to refuse to work if they think the workplace is unsafe. The legal test is this: Does the worker have a reasonable and good faith belief that there’s an immediate risk of serious injury or death? If so, the worker can walk off the job and refuse to work until you’ve corrected the problem or you’ve determined, after an investigation, that there’s no imminent danger. While you investigate or correct the problem, you can place the worker temporarily in another job at equal pay. It’s usually unwise to react by demoting or firing the complaining employee—that can be another violation of the OSH Act if the complaint is determined to be well-founded.

Example: Mildred runs a local delivery service. One afternoon, Arlene, one of the drivers, hears that the brakes locked that morning on one of the business vans. She refuses to drive that van until the brakes are checked out by a qualified mechanic. Mildred, believing that the brake problem was caused by careless driving, orders Arlene to use the van. When Arlene says no, Mildred fires her. Arlene sues. Even though the brakes are later found to be adequate, Arlene wins because the court determines that, based on the information she had, Arlene had a reasonable and good faith belief that she’d be exposed to an immediate risk of serious injury or death if she used the truck. Mildred is ordered to reinstate Arlene and to pay her for the time she missed since being fired.

Getting Help

Your eyes will probably glaze over at the thought of poring over pages of federal regulations on health and safety in the workplace. Fortunately, there are easier ways to learn what you must do to comply with OSHA requirements—and doing your homework will cost you little or nothing.

Worksite Consultations

Each state has an agency (funded mostly by the federal office of OSHA) that offers free, on-site consultations. For information about the agency in your state, go to www.osha.gov/dcsp/smallbusiness/consult_directory.html.

As in a formal OSHA inspection, you and the consultant will tour the workplace together. The consultant will point out safety and health risks and then, at a closing conference, give you practical advice on how to eliminate hazards. The consultant won’t issue citations or propose penalties, however. Nor will the consultant provide information about your workplace to the OSHA inspection staff, except in extreme circumstances.

Although OSHA encourages employees to participate in the consultant’s walk-through, you’re free to exclude employees from the consultation process—unless a union contract gives employee representatives the right to take part.

Caution: Opening the door to enforcement action. If the consultant finds a serious condition—one from which it’s reasonably predictable that death or serious harm could result—the consultant will work with you to control or eliminate the hazard within a time period that you jointly determine. If the consultant isn’t satisfied with your progress, the consultant may report you to an OSHA official. According to OSHA, however, consultants rarely find conditions that require them to report a business.

Safety Codes

Written safety codes are a good way to let employees know that you take safety seriously. Because each workplace is different, you’ll have to make sure that your safety code is tailored to the specific needs of your business.

OSHA has suggested a safety code that you may find useful as a starting point—but you’ll undoubtedly need to make changes to make it fit. See “Safety Code of ABC, Inc.,” below, for an example of how we modified OSHA’s code. You can find OSHA’s version in the agency’s Handbook for Small Business. (See “Additional Help From OSHA,” below.)

Additional Help From OSHA

For additional help with OSHA rules and regulations, see the OSHA Handbook for Small Business—OSHA Publication 2209—available at www.osha.gov/publications/osha2209.pdf. It contains self-inspection checklists covering such topics as fire protection, personal protective equipment and clothing, walkways, floor and wall openings, stairs and stairways, elevated surfaces, exit doors, hand tools, and equipment. These checklists can help you and employees identify potential problems.

You can also find lots of helpful materials on OSHA’s website at www.osha.gov.

Copyright © Nolo
www.nolo.com

Rate this content: