1 ALI-ABA Course of Study OSHA Essentials for Corporations June 6, 2008 Telephone Seminar/Audio Webcast Occupational Safety and Health Basics By Dennis P. Duffy Baker Botts L.L.P. Houston, TX
2 2
3 I. INTRODUCTION...1 A. The Occupational Safety and Health Act ("OSH Act")...1 1. State Program...1 2. Applicability...1 3. OSHA's Authority To Regulate Employee Safety and Health...1 II. EMPLOYER RESPONSIBILITY TO ENSURE PHYSICAL HEALTH AND SAFETY OF EMPLOYEES...4 A. Special Duties Of Certain Employers....5 B. Employer Duties To Protect Employees From Particular Hazards...6 1. Lockout/Tagout Standard...6 2. Confined Space Standard...8 3. Bloodborne Pathogens Standard....10 III. INSPECTIONS...11 A. Inspection Priorities...11 1. Imminent danger inspections....11 2. Fatalities and catastrophe investigations....11 3. Employee complaint investigations....11 4. Regional programmed inspections....11 B. Authority of Inspectors....12 C. Fourth Amendment Requirements...12 D. Warrantless Searches...14 1. Consent....14 2. Plain view and open fields exceptions....14 E. Inspection Tour...15 1. Presentation of Credentials....15 2. Opening Conference....15 3. Walkaround Inspection 29 U.S.C. 657(e)....16 4. Records Review....17 i
4 5. Closing Conference...17 F. OSHA's Right to Interview Employees...17 G. "Walkaround" Rights of Employees...18 H. What To Do When Citation Received...18 I. Citations...18 IV. LITIGATION UNDER THE ACT...19 A. Issuance of Citation...19 B. Simplified Proceedings...20 C. Defenses Available to Employers...20 1. Limitations, res judicata, and collateral estoppel...20 2. A checklist of common affirmative defenses and their elements..20 D. Proceedings Prior to Trial...25 1. Pleadings...25 2. Prehearing or Pretrial Orders...25 3. Discovery...26 4. Freedom of Information Act as a potential supplement to discovery....29 5. Settlement of contested cases...29 E. Hearings...30 F. Review Commission Proceedings...31 G. Judicial Review - (OSHA section 11(a))...32 1. Conditions precedent to judicial review....32 2. Standard of review...32 ii
5 THE ENFORCEMENT OF THE OCCUPATIONAL SAFETY AND HEALTH ACT I. INTRODUCTION A. The Occupational Safety and Health Act ("OSH Act") Employers have a legal duty to assure their employees a safe and healthful workplace. Federal and state laws -- as well as the specter of civil liability -- generally require that employers take several steps to assure a safe and healthful workplace, including: (1) Identify workplace hazards; (2) Eliminate workplace hazards or minimize workplace hazards to the extent possible; (3) Warn employees about workplace hazards; and (4) Protect employees from workplace hazards. The Occupational Safety and Health Act ("OSH Act") imposes the most significant duties on employers to assure a safe and healthful workplace. 29 U.S.C. 651 et seq. 1. State Program. Pursuant to the OSH Act, the Occupational Safety and Health Administration ("OSHA") has developed comprehensive programs to assure workplace safety and health. However, the OSH Act provides that a state may submit a "State plan" if the state wants "to assume responsibility for development and enforcement... of occupational safety and health standards" promulgated by OSHA. 29 U.S.C. 667(b). The OSH Act requires that a State program, must be "at least as effective" as the Federal program developed by OSHA. 29 U.S.C. 667(c). 2. Applicability. Generally, the OSH Act covers employment performed in any state or territory of the United States. See 29 U.S.C. 653(a). Unlike many other labor or employment laws, the OSH Act applies to all employers affecting interstate commerce, regardless of the size of the employer. However, the definition of the term "employer", as used by the OSH Act, expressly exempts "the United States or any State or political subdivision of a State." 29 U.S.C. 652(5). 3. OSHA's Authority To Regulate Employee Safety and Health The purpose of the OSH Act is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions..." 29 U.S.C. 651(b). To achieve this goal, Congress authorized the Secretary of Labor to promulgate safety and health "standards". Section iii