Pam Cordier, Executive Director, Pulp & Paper Safety Association
Sept. 30, 2007
In past columns, I have covered some of the more common OSHA regulations. Here, I would like to discuss regulations and agency investigations that are encountered less frequently. I will touch on two of the more obscure regulations and go more in-depth on another that is increasingly encountered in our industry.
Less common, but consequential
The first regulation I will discuss is Section 5 (a) (1) of the Occupational Safety and Health Act (OSHACT), known as the General Duty Clause. The clause simply states that every employer must furnish each employee "employment and a place of employment that are free from recognized hazards that are causing or likely to cause death or serious physical harm." OSHA will issue a citation invoking this clause when there is no specific standard to cover the alleged hazard.
Two common areas where this General Duty Clause is enforced are musculoskeletal exposures and electrical hazards that are not covered under 29 CFR 1910 electrical standards and are not in compliance with NFPA 70 E, which still remains only a consensus standard. The only relief that employers get from the threat of the General Duty Clause is that it shifts the burden of proof for the alleged hazard to OSHA.
Another inspection-type situation that a mill may encounter is a health hazard evaluation (HHE) conducted by the National Institute for Occupational Safety and Health (NIOSH). NIOSH came into existence along with OSHA in 1970 as part of the OSHACT. Unlike OSHA, NIOSH is not a regulatory agency and does not issue citations or penalties. It is part of the Centers for Disease Control and Prevention.
Although an HHE may offer helpful recommendations that reduce hazardous conditions, the downside is that OSHA can use the findings to prove that the alleged hazards were present and issue their own citations and fines. Additionally, an HHE can become an exhaustive investigation that disrupts mill production and causes manning issues, even though the NIOSH staff is usually cooperative and aware of a mill's needs and concerns.
Any current employee in the workplace of concern can request an HHE, provided signatures of two other employees accompany it. Also, a union officer or any management official may request the investigation on behalf of the employer.
Whistle blowing and working cooperatively
The predominant situation involving OSHA that is still relatively unknown is OSHA's Whistleblower Protection Program. To ensure that employees have the right to freely participate in all safety and health activities, Section 11 (c) of the OSHACT prohibits an employer from discriminating in any manner against an employee because the employee has exercised rights under the Act.
Not so many years ago, employers encountered very few OSHA discrimination charges. However, in the last several years, I have heard that some industry companies see a dozen or more 11(c) charges annually. Because the word discrimination appears on the letter, these cases are often routed to human resources, labor relations or the equal employment opportunity administrator. In your company or mill, these might be the appropriate entities to handle such situations, but 11 (c) charges are completely outside of labor law and HR regulations and draw solely from OSHA Standards.
In most cases, the 11 (c) charges are handled by the mill, assisted by the division, regional or corporate safety manager as with other OSHA citations. The discrimination type, of course, is the same as in almost all other cases in that, among others, firing, demoting, denying overtime or promotion, disciplining, intimidation and adverse reassignment are on the list.
With all the charges that are filed and all the training our industry conducts each year, it is hard to believe that we still have management who retaliate against employees for exercising their rights under the OSHA Standards. The rights include complaining to OSHA, seeking an OSHA inspection and participating in any proceeding relating to an inspection. I have frequently heard that employee unions are advising employees of their rights and even encouraging them to file charges of discrimination.
Additionally, in other regulations and letters of interpretation, it is clear that employees do have the right to refuse to work if the task poses an immediate hazard that could cause death or serious injury. On its web site, OSHA announces that it is training more discrimination investigators and that the training is now more extensive.
Knowledge of regulations avoids trouble. Working with employees and having them take ownership in safety programs stops injuries and avoids OSHA discrimination charges.
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