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Overview of Occupational Safety and Health Administration and its role across the US legal market

The Chambers USA team analyze the role of Occupational Safety and Health Administration and discuss recent trends in the USA market.

Published on 12 May 2022
Written by Kush Cheema
Kush Cheema

What is Occupational Safety and Health Administration?

The right of every employee to health and safety in the workplace is a relatively new concept for the U.S. labor workforce. As late as 1922, the Labor Department’s Bureau of Labor Standards had begun to cover some work safety issues but it was not until after the Second World War, during the period of economic boom and associated workforce turnover, that workplace safety came under significant scrutiny.

Newly formed and powerful unions took on an advocacy role for employees’ workplace health and safety, and after economic expansion led to rising injury rates in the 1960s, the Occupational Safety and Health Administration (OSHA) was established. Its mission is to “assure safe and healthy working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance". In 1970, President Nixon signed the resulting OSH Act into law.

Throughout its history OSHA has helped transform America’s workplaces by reducing workplace injuries, fatalities and illnesses. The Administration’s initial decade saw it issue first standards for asbestos, lead, carcinogens, and cotton dust; the ‘80s brought a Supreme Court landmark decision affirming workers the right to refuse unsafe tasks, and over time OSHA has increased protections for workers following 9/11, Hurricane Katrina, Deepwater Horizon and now the COVID-19 pandemic.

The Administration is also responsible for training, compliance assistance, health and safety recognition programs, and is charged with enforcing a variety of whistleblower statutes and regulations.

OSH Act

The OSH Act enshrines the responsibility of an employer to provide a safe workplace for employees, a workplace that does not have serious hazards and one that follows all OSH Act safety and health standards. The onus, importantly, is on employers to find and correct health and safety problems.

The Act grants employees the right to working conditions that do not pose risk of serious harm; to file a confidential complaint; to have their workplace inspected; and to receive training and information relating to hazards, prevention and standards. Current workers or representatives may file a complaint and ask OSHA to inspect their workplace if they believe their employer isn’t following OSHA standards or there is a serious hazard.

This can be anonymous, and it is a violation of the OSH Act to discriminate against a worker who has filed a complaint. When an inspector finds a violation of the standards or a serious hazard, OSHA may issue citations or fines. Employers have the right to contest any part of the citation, including whether a violation actually exists.

The OSH Act grants OSHA the authority to issue workplace health and safety regulations, and OSHA is responsible for enforcing its standards on regulated entities. The scope of the OSH Act covers most private sector employers and their employees either through federal OSHA or an OSHA-approved state plan, some public sector employers and workers in 50 states, and certain territories and jurisdictions under federal authority.

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Overview of recent OSHA Trends in the legal market

As part of President Biden’s COVID-19 Action Plan, on November 4, 2021 the Department of Labor issued an Emergency Temporary Standard (ETS). This was in order to increase protections for 84 million workers: “immediate action” was seen as necessary to protect employees from the “grave danger from workplace exposure to coronavirus”.

Under the ETS, employers are required to develop, implement and enforce a mandatory COVID-19 vaccination policy, or adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work. ETS is effectively a “vaccinate or test” mandate for employers with 100 or more employees (firm or company-wide).

The ETS also requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects. OSHA estimated the standard would save thousands of lives and prevent more than 250,000 hospitalizations due to workplace exposure to COVID-19.

Almost immediately after the ETS came into effect, several states, private employers, labor unions, and other individual citizens immediately filed suit, challenging the OSHA’s authority to issue the ETS as well as the basis for it. As a result, two days after the ETS was issued a federal appeals court temporarily enjoined its enforcement. Although OSHA did eventually withdraw the ETS as an enforceable emergency temporary standard in January  2022), OSHA is not withdrawing the ETS as a proposed rule. Instead, OSHA has stated it will “prioritize its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.”

Chambers insights and rankings of the top legal professionals working across OSHA

After thorough research over the course of the US Guide, Chambers and Partners has compiled an OSHA table of leading experts based on client demand.

It includes 21 nationally recognised experts and five firms, including full-service firms such as Morgan Lewis and specialist employment firms like Ogletree Deakins.

Full Chambers Rankings results will be released on June 1st

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