|Federal Statute||29 U.S.C. § 651 et seq.|
|Federal Regulations||29 C.F.R. § 1960|
|D.C. Statute||D.C. Code § 32-1101 et seq. (not enacted)|
|Federal Employees||29 U.S.C. § 668 et seq.; 29 C.F.R. § 1960.1|
|D.C. Employees||29 U.S.C. § 654; D.C. Code § 32-1101 et seq.|
Occupational safety and health laws require all employers to maintain a work environment that is safe and healthy for all workers. The main law is the federal Occupational Safety and Health Act (OSHA). See 29 U.S.C. § 651 et seq. (1999). There is currently no similar D.C. law. (The D.C. Occupational Safety and Health Act, D.C. Code § 32-1101 et seq. was never enacted.)
Administered by the federal Occupational Safety and Health Administration (a division of the U.S Department of Labor), OSHA requires employers to eliminate identified hazards from the workplace that may, or are likely to, cause death or serious physical harm or illness to workers. 29 U.S.C. § 654(a)(1). Both employers and workers are required to comply with any regulations issued under the statute that are relevant to their activities. 29 U.S.C. § 654(a)(2) & (b).
Unfortunately, there is no private right of action under OSHA. A worker’s only recourse is to complain about the unsafe or unhealthy workplace and ask OSHA to investigate. If violations are found, the employer will be fined.
Nearly every employee in the nation is covered by OSHA, with a few exceptions, such as miners, some transportation workers, many public employees, and live-in domestic workers, who are excluded from OSHA by a Department of Labor regulation. See 29 U.S.C. § 654; 29 C.F.R. § 1975.6.
State and local government employees are protected by OSHA if they work in states with OSHA-approved state plans. Maryland and Virginia have OSHA-approved state plans, both of which apply to their respective state and local government employers. D.C. falls under federal OSHA jurisdiction and public employees are not covered by federal OSHA, although they are protected under D.C. Occupational Health and Safety Act which mirror federal OSHA. Section 19 of OSHA creates a separate program for federal employees, making federal agencies responsible for federal employee occupational health and safety.
Keeping a Safe Workplace
An employer must keep the workplace “free from recognized hazards that may cause or are likely to cause death or serious physical harm or illness to the employees.” This includes complying with all OSHA rules and regulations. Workplace safety also extends to an obligation to keep a workplace free from workplace violence.
Record Keeping & Monitoring
Federal laws require employers to maintain accurate records of workers’ exposure to all potentially toxic materials or harmful physical agents, which employers are required by law to monitor and measure. See 29 U.S.C. § 657(c). Workers have the right to observe the monitoring and measuring of hazardous materials, and the right to access any related records, except for medical records of present or former employees. Id.
Workers who have been exposed to toxic or harmful physical agents in excess of the amount permitted by occupational safety and health rules should be promptly notified of the hazard and informed of the corrective action the employer is taking. See 29 U.S.C. § 657(c)(3).
Duty to Comply With OSHA Rules
A worker has the duty to comply with all OSHA rules, regulations and orders that are applicable to a worker’s actions and conduct.
Right to Request Inspection or Investigation
Workers have the right to request an inspection or investigation if they believe a violation of the statute or of occupational safety and health standards has occurred, or if they believe an imminent danger exists. See 29 U.S.C. § 657(f)(1).
To request an inspection, a worker must provide OSHA with notice (oral or written) that specifically identifies the suspected violation or danger. The employer is then provided with notice of the request for inspection. Id. Under federal law, the identity of the person(s) requesting the inspection is not included on the notice to the employer or any other related records published or released pursuant to the statute. Should the Labor Department determine that no danger or violation exists, the Labor Department must notify the worker who requested the inspection and provide a written statement explaining the decision. Id.
OSHA requires that notice of a suspected violation must be in writing, and that the identity of the worker shall be withheld only upon request of the worker. See 29 U.S.C. § 657(f)(1). Although the statute indicates that a worker’s request for inspection must be in writing, informal complaints that are not in writing may also be an adequate means of getting an inspection. See Burkart Randall Div. of Textron, Inc. v. Marshall, 625 F.2d 1313, 1321-22 (7th Cir. 1980) (informal worker’s complaint that was neither in writing nor signed nonetheless provided justification for inspection).
A worker may file a complaint with the federal OSHA’s Washington field office. The address for the Baltimore/Washington field office is 1099 Winterson Road, Suite 140, Linthicum, MD 21090. Workers can contact the office by phone at (410) 865-2055/2056 or by fax at (410) 865-2068.
OSHA applies several criteria to a hazard in order to determine whether it is an imminent danger: (1) there must be a threat of death or serious physical harm; (2) for a health hazard, there must be a reasonable expectation that toxic substances are present and exposure to them will shorten life or “cause substantial reduction in physical or mental efficiency”; and (3) the threat must be immediate – i.e., the serious physical harm or death must be impending.
Filing an OSHA Complaint
A worker may file a Notice of Alleged Safety or Health Hazards with the Federal OSHA using an OSHA-7 form, which may be downloaded in PDF format from the OSHA website: www.osha.gov/workers/file_complaint.html. The online equivalent is available at http://www.osha.gov/pls/osha7/eComplaintForm.html. Formal written complaints that are signed by workers or their representative and submitted to an OSHA area or regional office are more likely to result in on-site OSHA inspections in comparison to an informal request via telephone or email.
The notice should be delivered to the OSHA office that handles District of Columbia and Maryland complaints, which is located at 1099 Winterson Road, Suite 140, Linthicum, MD 21090. The telephone and fax numbers are (410) 865-2055/2056 (telephone) / (410) 865-2068 (fax). The regional office for Virginia is located at the federal office building, 200 Granby St., Room 614, Norfolk, VA 23510. The telephone and fax numbers are (757) 441-3820 (telephone) / (757) 441-3594 (fax).
Before an on-site investigation will take place, a “phone-and-fax” investigation will be conducted. OSHA will telephone the employer after the filing of a complaint and then follow up with a fax or a letter. The employer has five days to respond, identifying in writing any problems the employer found and noting corrective actions taken. The worker who filed the complaint will receive a copy of the employer’s written response. If the worker is not satisfied with this response, she may request an on-site investigation.
OSHA investigators will not conduct an on-site investigation unless the written complaint alleges with sufficient detail (1) that a danger exists that threatens physical harm of the workers, (2) that an “imminent danger” exists, or (3) that the complaint fits other specific circumstances, such as:
- The complaint contains an allegation that physical harm has already occurred as a result of the hazard;
- The employer is part of an industry covered by one of OSHA’s targeted programs (e.g., construction, auto repair, ship building, meat packing), or the alleged hazard is targeted by OSHA’s programs;
- The employer provided inadequate information via phone or fax in response to OSHA’s inquiries;
- The employer has an egregious past history; or
- The complaint was filed by a whistleblower investigator.
For lower-priority hazards, OSHA may telephone the employer to describe safety and health concerns, following up with a fax detailing the alleged hazards. The employer must respond in writing within five working days, noting corrective actions taken or planned.
The on-site inspection commences with the presentation of the compliance officer’s credentials and an opening conference, where the employer will select a representative to lead the compliance officer during the walk-around. During the walk-around of the facilities, the compliance officer will review worksite injury and illness records and verify that the employer has posted the official OSHA poster as well as point out apparent violations that can be corrected immediately. After the walk-around, the compliance officer discusses the findings and employee rights.
If an on-site OSHA inspection is granted, workers and their representatives have the right to talk confidentially with the OSHA inspector and participate in meetings with the inspector and the employer before and after the inspection is conducted. Where there is no union or employee representative, the OSHA inspector must talk confidentially with a reasonable number of workers during the course of the investigation. An OSHA compliance safety and health officer (CSHO) conducts an inspection (usually without advance notice) of the workplace. If there is a violation, OSHA must issue a Citation and Notification of Penalty and proposed penalty within six months of the violation’s occurrence. Employees also have the right to find out the results of the OSHA inspection and request a review if OSHA decides not to issue citations.
If a worker feels that she or co-workers are in imminent danger because of a workplace hazard, she also can call (800) 321-OSHA to report it.
The OSHA provides that the Secretary or the Secretary’s authorized representative shall issue a citation to any employer who violates any regulation, order or rule issued pursuant to the statute. See 29 U.S.C. § 658(a). An employer must post a Citation and Notification of Penalty at or near the place where each violation occurred to make employees aware of the hazards to which they may be exposed. The citation must remain posted in a place where employees can see it for three working days or until the violation is corrected, whichever is longer. The employer must comply with these posting requirements even if they contest the citation.
Contesting a Citation or Abatement Period under Federal Law
The federal statute similarly affords an employer the opportunity to contest a citation issued against it. See 29 U.S.C. § 659(a). An employer must notify the Secretary of its intent to contest the citation within 15 working days of receiving the citation. Id. The Commission conducts a hearing and makes a final determination as to the validity of the citation. Id. § 659(c).
Affected workers are provided an opportunity under the statute to participate in the hearings before the Commission, either by initiating a challenge or by participating as a party in a hearing initiated by the employer. Id. First, a worker can challenge the citation based on an unreasonable abatement period, if a worker notifies the Secretary within 15 working days of the date the citation was issued. Id. The Secretary will then advise the Commission of the notification, and the Commission will afford the worker an opportunity to participate in a hearing. Id. Second, a worker has a right to fully participate as a party in a hearing initiated by the employer to contest a citation. See Donovan v. Oil, Chem., and Atomic Workers Int’l Union, 718 F.2d 1341, 1353 (5th Cir. 1983) (holding employees may participate fully as parties when employer disputes citation and are not limited to challenging reasonableness of abatement period established in citation); OCAW v. OSHRC, 671 F.2d 643, 648 (D.C. Cir. 1982) (“The employees’ request for party status confers jurisdiction on the commission to entertain the employees’ objections on all matters relating to the citation in question.”).
Judicial review of the Commission’s decision is available in the United States Court of Appeals for the circuit in which the violation allegedly occurred or where the employer has its principal office. See 29 U.S.C. § 660(a). An aggrieved party must file a petition for review within 60 days after the Commission issues its order. Id.
Employees or authorized representatives may contest any or all of the abatement dates set by filing a written Notice of Intent to Contest with the OSHA Area Director within 15 working days after the employer receives the citation. The filing of an employee contest does not suspend the employer’s obligation to abate. Employees also have the right to object to a Petition for Modification of Abatement by sending a written objection of a PMA to the area office within 10 days of service or posting.
Under OSHA, workers are not entitled to contest the terms of a settlement agreement between the Secretary and an employer. See Donovan v. Local 962, Int’l Chem.Workers Union, 748 F.2d 1470, 1473 (11th Cir. 1984). Likewise, a Secretary’s decision to withdraw a citation against an employer is not subject to any administrative or judicial review. See Cuyahoga Valley Ry. Co. v. United Transp. Union, 474 U.S. 3, 8 (1985).
OSHA mandates that each citation be conspicuously posted at or near the location of the violation. It must remain posted for three working days or until the violation is remedied, whichever is longer. See 29 U.S.C. § 658(b).
Government Lawsuits against the Employer
Injunction to Protect Against Imminent Danger
Under federal law, United States District Courts have the authority, upon the request of the Secretary of the Department of Labor, to enjoin dangerous practices or conditions that could reasonably be expected to cause death or serious injury, either imminently, or before the danger can be eliminated by usual enforcement procedures. See 29 U.S.C. § 662(a).
Workers have a right to be immediately informed of an inspector’s conclusion that an imminent danger exists, and of an inspector’s intent to recommend that the Secretary seek an injunction. 29 U.S.C. § 662(c). Workers have recourse should the Secretary or Mayor arbitrarily and capriciously conclude that an imminent danger does not exist. Id. at § 662(d). Any worker at risk of injury as a result of a decision that no imminent danger exists may request a writ of mandamus in United States District Court to compel the Secretary to seek an order enjoining the dangerous practices. Id.
Civil and Criminal Penalties
The federal government has the authority to assess civil penalties for any violations under the relevant statutes. See 29 U.S.C. § 666. The federal law provides for an enhanced civil penalty for willful OSHA violations. See Id. at § 666(a); Conie Constr., Inc. v. Reich, 73 F.3d 382, 384 (D.C. Cir. 1995) (finding willful violation where employer was aware of OSHA requirements but chose not to comply).
Federal government officials may bring criminal charges against employers whose willful violation of occupational safety and health rules results in the death of a worker. See 29 U.S.C. § 666(e). Government officials may also bring charges against persons who give advance notice of inspections, or who make false statements, representations or certifications with regard to documents filed or maintained in accordance with statutory requirements. See 29 U.S.C. § 666(f) & (g).
Private Causes of Action
Under the Federal Statute
Employees do not have an express or implied private right of action against their employers. See Melerine v. Avondale Shipyards, Inc., 659 F.2d 706, 709 (5th Cir. 1981) (OSHA designed to require employers to provide safe work environment and does not authorize employees to bring civil cause of action against non-compliant employers); Taylor v. Brighton Corp., 616 F.2d 256, 258 (6th Cir. 1980). The specific statutory remedy authorizing the Secretary to bring a suit against the employer in federal court is the exclusive remedy under the federal statute. See Holmes v. Schneider Power Corp., 628 F. Supp. 937 (W.D. Pa. 1986), aff’d, 806 F.2d 252 (3rd Cir. 1986).
OSHA’s Non-retaliation Provisions
Workers are entitled to protection from discrimination and retaliation under federal law. See 29 U.S.C. § 660(c); see also Donovan v. R.D. Andersen Constr. Co., 552 F. Supp. 249, 253 (D. Kan. 1982) (holding that a worker’s communications with the media concerning working conditions are protected under the nondiscrimination provision). Employers may not discriminate against or discharge workers for filing a complaint, instituting or testifying in a proceeding, or exercising any right or duty afforded by the statute.
In addition, an employer cannot discharge or discipline a worker for refusing to perform work that could create a dangerous situation, or under conditions that violate federal or D.C. health, safety or environmental laws. See Donovan v. Hahner, Foreman & Harness, 736 F.2d 1421, 1428-29 (10th Cir. 1984) (finding that the worker was reasonable and justified in refusing to work where a gondola had malfunctioned several times and the employer had a callous attitude toward safety).
How to File and the Limitations Period
Employees who believe they have been discriminated against must file their complaints within 30 days of the alleged act of discrimination to their local OSHA office. The 30-day time limit is not a jurisdictional requirement; rather, it is a statute of limitations subject to equitable tolling in accordance with the remedial nature of OSHA. See Hahner, Foreman & Harness, Inc., 736 F.2d at 1424. Tolling is justified where an employer misleads the worker as to his or her employment status or conceals the grounds for discharge. See 29 C.F.R. § 1977.15(d)(3) (1999); Hahner, 736 F.2d at 1427.
To file a complaint, no form is needed; complaints may be submitted in any language. The employee must send a written letter or call the local OSHA office to report the discrimination. The date of the postmark or phone call is considered the date filed. In states with OSHA-approved state programs (including Maryland and Virginia), an employee who believes he/she has been discriminated against under Section 11(c) of the OSHA Act is entitled to file a complaint alleging discrimination under both state and federal procedures.
The Secretary of Labor does not have the authority to order reinstatement or payment of back wages. Instead, if the Secretary determines that an employer has violated the statute, the Secretary can bring an action against the employer in United States District Court, and the court can order reinstatement, back pay and issue injunctions to stop the employer’s dangerous practices. See 29 U.S.C. § 660(2). The Secretary must notify the worker of the decision concerning the complaint within 90 days of receiving it. Id.
Back pay is considered equitable relief under OSHA and is awarded at the court’s discretion. See Martin v. Sharpline Converting, Inc., 790 F. Supp. 252, 253 (D. Kan. 1992). Back pay can be reduced by the amount of income a worker earned from employment secured after an unlawful discharge. See Donovan v. Freeway Constr. Co., 551 F. Supp 869, 880 (D. R.I. 1982).
After a Complaint for Retaliation is Filed
OSHA will investigate complaints from employees who believe they have been retaliated or discriminated against. Upon receipt of a retaliation complaint, OSHA will first review it to determine whether it is valid on its face. In order for OSHA to determine retaliation, the investigation must reveal that the employee engaged in protected activity; the employer knew about or suspected the protected activity; the employer took an adverse action; and the protected activity motivated or contributed to the adverse action. If the investigation discloses probable violations of employee rights and a settlement cannot be reached, OSHA will generally issue an order, which the employer may contest. Under some jurisdictions, the employer must comply with the reinstatement order immediately. If the order is not complied with, then court action may follow.
Common Law Action for Wrongful Discharge
Some courts permit a worker to bring a common law action for wrongful discharge in violation of state public policy when a worker is discharged for exercising rights under OSHA. These claims expand the available remedies beyond those in the OSHA statutes. See Schweiss v. Chrysler Motors Corp., 922 F.2d 473, 475 (8th Cir. 1990); Sorge v. Wright’s Knitwear Corp., 832 F. Supp. 118, 121 (E.D. Pa. 1993).
A D.C. court has never expressly held that a worker has a common law cause of action for wrongful discharge against an employer who fires a worker for exercising a right under OSHA. D.C. courts have, however, recognized actions for wrongful discharge in violation of public policy based on the exercise of rights under other statutes. See Carl v. Children’s Hospital, 702 A.2d 159, 160 (D.C. 1997) (holding that employees who are discharged for exercising their statutory rights may bring a claim for wrongful discharge under the public policy exception to the terminable at will doctrine). D.C. has likewise recognized actions for wrongful discharge when a worker is fired for refusing to violate a statute, and for protesting unsafe and unlawful practices. See Washington v. Guest Servs., 718 A.2d 1071, 1080-81 (D.C. 1998) (holding that firing a worker for refusing to violate food and health regulations and persuading others not to violate the regulations stated a claim for wrongful discharge).
Listed below are summaries of some of the OSHA standards covering situations that low-wage workers are most likely to encounter.
- Conveyor – Where there is a hazard of getting caught on a conveyer, there must be a sufficient number of stop buttons. See 29 C.F.R. § 1910.263(i)(7)(iii).
- Gears – All gears must be completely enclosed. See 29 C.F.R. § 1910.263(c)(2).
- Ovens – All ovens must be located so that possible fire or explosions will not expose persons to possible injury. Ovens must not adjoin lockers, lunch or sales rooms, main passageways or exits. See 29 C.F.R. § 1910.263(l)(1)(vii).
- Pan Washing Tanks – The surface of the floor of pan washing tanks must be kept in a non-slip condition. See 29 C.F.R. § 1910.263(i)(15)(ii)
- Slicers – The cover of the knife head of reciprocating-blade slicers must be designed so that the slicer can operate only if the cover is in place. See 29 C.F.R. § 1910.263(j)(1)(iii).
- Latex gloves – OSHA does not regulate latex gloves for food preparation. However, wearing gloves during preparation of uncooked foods is part of the Food and Drug Administration’s food code. See 4/7/98 OSHA Standard Interpretation Letter, available at http://www.osha.gov/.
Janitorial & Cleaning Occupations
- Protective equipment shall be “provided, used and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards or mechanical irritants…” 29 C.F.R. § 1910.132. Protective equipment includes personal protective equipment (PPE) for face, eyes, head and extremities, protective clothing, respiratory devices and protective shields and barriers. Id. Regulations for equipment are found at §§ 1910.133 – .138.
- Handling and storage of hazardous materials – See 29 C.F.R. § 1910.101-126.
- Toxic and hazardous substances – See 20 C.F.R. § 1910.1000-1450.
- Bloodborne Pathogens – Employers that have employees with occupational exposure, meaning “reasonably anticipated skin, eye, mucous membrane, or parenteral contact with blood or other potentially infectious materials that may result from the performance of a worker’s duties,” must have a written Exposure Control Plan designed to eliminate or minimize worker exposure. See 29 C.F.R. § 1910.1030(c)(1)(i).
- Universal precautions must be observed to prevent contact with blood or other potentially infectious materials. See 29 C.F.R. § 1910.1030(d)(1).
- All permanent places of employment (except where domestic, mining or agricultural work only is performed) must keep passageways, storerooms and service rooms clean and orderly and in a sanitary condition. See 29 C.F.R. § 1910.22(a)(1).
- Every floor, working place, and passageway must be free from protruding nails, splinters, holes or loose boards. See C.F.R. § 1910.22(a)(3).
There are no special requirements or benefits for federal employees. In addition to regulating private workplaces, the Occupational Safety and Health Act of 1970 put in place federal employee occupational health and safety (FEOSH) requirements for federal agencies. Under Section 19 of the OSH Act, each federal agency must designate officials responsible for ensuring compliance with the Act, must develop plans and programs to ensure compliance, and must develop and distribute informational materials for workers affected.
Undocumented workers may make OSHA complaints. OSHA allows the identity of the complainant to remain confidential.
Guidelines and regulations issued by the U.S. Department of Health and Human Services and the U.S. Department of Labor provide that federal OSHA standards apply to welfare to work programs. See “How Workplace Laws Apply to Welfare Recipients,” U.S. Department of Labor (Feb. 1999); 64 Fed. Reg. at 17748. In addition, the D.C. welfare reform law states that D.C. and federal OSHA laws apply to welfare to work. See D.C. Code § 4-205.19j.
The federal Occupational Safety and Health Act permits a state to assume responsibility for the development and enforcement of occupational safety and health standards pursuant to a plan approved by the United States Secretary of Labor, thereby pre-empting federal OSHA laws. See 29 U.S.C. § 667. Both Maryland and Virginia have complete state plans. Although at one time the D.C. law pre-empted Federal law in accordance with that provision, see Traudt v. Potomac Elec. Power Co., 692 A.2d 1326, 1331 n. 3 (D.C. 1997) (noting Secretary of Labor’s approval of D.C. plan for enforcement of occupational safety and health standards), D.C. currently does not have an approved state plan that pre-empts the Federal Act.
Maryland operates under a complete state plan, which covers private sector and state and local government employees. Workers can file complaints with the State OSH agency or with the U.S. OSHA regional administrator.
Technically there is no statute of limitations for filing a complaint with the Maryland Occupational Safety and Health agency (MOSH); however, MOSH must have enough time to produce a finding within six months of the alleged violation. MD Lab. & Emp. Code Ann. § 5-212 (a)(2). The statute of limitations for filing a claim of discrimination or retaliation is 30 days. MD Lab. & Emp. Code Ann. § 5-604(c)(2).
The Maryland Occupational Safety and Health (MOSH) agency is located at 10946 Golden West Drive, Suite 160, Hunt Valley, MD 21031. The telephone and fax numbers are (410) 527-4499, (410) 527-2069 (for Spanish speakers), 1-888-257-MOSH (for emergency situations), fax (410) 527-4481.
The federal OSHA regional administrator’s office is located at the 1835 Market Street Mailstop OSHA-RO/19 Philadelphia, PA 19103. The telephone and fax numbers are (215) 861-4900; fax (215) 861-4904. U.S. OSHA also maintains a field office at 10946 Golden West Drive, Suite 160, Hunt Valley, MD 21031 . The telephone and fax numbers are (410) 527-4499, fax (410) 527-4481. In emergencies, call 1-800-321-OSHA.
Virginia also operates under a complete state plan, which covers both private sector and state and local government employees. Workers can file complaints with the State OSH agency or with the U.S. OSHA regional administrator.
The Virginia Occupational Safety and Health (VOSH) program can be reached at 600 East Main Street, Suite 207, Richmond, VA 23219. A complaint form is available online at http://www.doli.virginia.gov/.
VOSH Health Compliance can be reached by calling (804) 786-0574, Safety Compliance can be reached by calling (804) 786-7776, and Compliance can be reached by calling (703) 392-0900 in Manassas, Va. For training, consultation or information, call the Cooperative Programs office at (804) 786-6359. The U.S. OSHA regional administrator’s office is located at the Curtis Center, 170 S. Independence Mall West, Suite 740 West, Philadelphia, PA 19106-3309. The telephone and fax numbers are (215) 861-4900; fax (215) 861-4904. U.S. OSHA maintains an office at the Federal Office Building, 200 Granby St., Room 614, Norfolk, VA 23510. The telephone and fax numbers are (757) 441-3820, fax (757) 441-3594