Unit 1B, Safety, Activity 1
(Unit 1B_Act.1.PDF file) - (Unit 1B Act.1 .doc file)
Read the article on Federal Safety and Health Programs
The following article will give the Fire Program Manager the basis for Federal Regulations governing safety programs.
FEDERAL AGENCY SAFETY AND HEALTH PROGRAMS
The Occupational Safety and Health Act of 1970 was designed “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.”
Section 19 of the Act specifically charges the head of each Federal agency with the responsibility to “establish and maintain an effective and comprehensive occupational safety and health program, which is consistent with the standards” set by OSHA for private sector employees. This broad mandate is further defined by Presidential Executive Order 12196, which identifies the responsibilities of the agencies and the role of the Secretary of Labor in developing, implementing, and evaluating such programs.
The Secretary of Labor also has been assigned broad responsibilities under Section 19 of the Act. Department of Labor regulations (Title 29 Code of Federal Regulations, Part 1960) spell out in detail the responsibilities of the Secretary of Labor and of the heads of other Federal agencies under the Act and the Executive Order.
This lesson will provide an overview of Section 19 of the Act, Executive Order 12196, and Part 1960 of Title 29 so that Federal employees and managers may be informed of their rights and responsibilities under the Act.
OSH Act - Section 19
In requiring an effective and comprehensive occupational safety and health program, Section 19 of the OSH Act places a much broader requirement on Federal agency heads than that required of employers in the private sector. Private sector employers must: (1) provide a workplace free of recognized hazards; and, (2) comply with the OSHA standards. However, under Section 19, Federal agency programs must include all aspects of a comprehensive program, not just compliance with the standards. Federal programs must deal with the human element, the workplace environment, training, motivation, and attitudes.
Section 19 of the Act further requires agency heads, after consultation with employee representatives, to:
Provide safe and healthful places and conditions of employment.
Acquire, maintain, and require the use of safety equipment, devices, and personal protective equipment.
Keep appropriate injury and illness records and file an annual report of injuries and illnesses with the Secretary of Labor.
Executive Order 12196
The requirement to have a program “consistent” with OSHA standards (as required by Section 19) was expanded upon by Executive Order 12196 (February 26, 1980), which requires the agency head to:
Comply with all standards issued under Section 6 of the Act except where the Secretary approves compliance with alternative standards; and
Provide procedures for adoption of alternative standards.
Additional elements of the Executive Order apply to all agencies of the Executive Branch except unique military equipment and systems.
The Executive Order does not apply to the judicial or legislative branches of the Government. However, since Section 19 of the Act covers all Federal employees, the Secretary of Labor cooperates and consults with the agency heads of the branches to help them adopt safety and health programs.
Executive Order 12196 continued:
Incorporates a General Duty Clause similar to the one in effect in the private sector (two previous Executive Orders did not include this).
Requires an Occupational Safety and Health Program, including elements promulgated by the Secretary of Labor (i.e., 29 CFR 1960).
Requires designation of an official with authority to represent the interest and support of the agency head to be responsible for the management and administration of the agency program.
Necessitates prompt abatement (or an abatement plan) for unsafe or unhealthy working conditions.
Establishes a discrimination clause (similar to Section 11(c) in the private sector). This prohibits retribution against employees who file complaints regarding unsafe or unhealthful working conditions.
Under the Executive Order, agency heads must:
Assure periodic inspection of workplaces.
Assure prompt response to employee reports of hazardous conditions.
Assure employee representation during inspections.
Operate an occupational safety and health management information system.
Provide safety and health training for supervisors, inspectors, committee members, and other employees.
Most of these requirements are similar to those set forth in earlier Executive Orders. However, an area that was not covered previously was that of occupational safety and health committees.
Agency heads may establish certified occupational safety and health committees. If committees are established, they must be at both the national and other appropriate (e.g., regional or local) levels. The committees are to be joint labor-management committees. Agencies with certified committees do not generally receive unannounced OSHA inspections, unless half the members of the committee requests OSHA action.
Committees shall:
Have access to agency information relative to their duties.
Monitor performance of agency programs.
Consult and advise the agency on the operation of the program.
Under the Executive Order, the Secretary of Labor has specific responsibilities, including:
Leadership and guidance to agencies.
Coordination with other agencies having responsibilities related to Federal employee safety and health.
Issuance of basic program elements (29 CFR 1960, October 21, 1980).
The Secretary is also required to:
Prescribe record keeping and recording requirements.
Provide training materials and conduct training.
Evaluate programs.
Conduct inspections: when necessary if the agency does not have a certified committee; upon request of the committee; or when a committee fails to respond to an employee's imminent danger report.
Inspection results are reported to agency heads and to the safety and health committee, if any.
Executive Order 12196 includes special provisions related to the General Services Administration (GSA). GSA responsibilities include:
Establishing procedures for resolving conflicting standards for space released by GSA.
Requiring GSA personnel to accompany the OSHA inspector on inspections of facilities subject to GSA authority.
Assuring prompt attention to reports of unsafe or unhealthy conditions in facilities subject to the authority of GSA.
Providing safe supplies, devices, and equipment to other agencies and maintaining a product safety program.
29 CFR 1960
The third major reference concerning Federal agency safety and health programs is 29 CFR 1960 - Basic Program Elements for Federal Employee OSH Programs and Related Matters. Agency heads are required to operate their programs in accordance with the basic elements. However, there is flexibility so that agencies can implement their programs in a manner consistent with their mission, size, and organization.
There are 11 subparts in Part 1960, Subparts A-K, as follows:
Subpart A - General
Subpart B - Administration
Subpart C - Standards
Subpart D - Inspection and Abatement
Subpart E - General Services Administration and Other Federal Agencies
Subpart F - Occupational Safety and Health Committees
Subpart G - Allegations of Reprisal
Subpart H - Training
Subpart I - Record keeping and Reporting Requirements
Subpart J - Evaluation of Federal Occupational Safety and Health Programs
Subpart K - Field Federal Safety and Health Conditions
We will review some of the more important requirements of 29 CFR 1960 in this lesson.
In Subpart B, Agency Responsibilities (1960.8) states that each agency head is required to comply with the governmental equivalent of Sections 5(a)(1) and 5(a)(2) (The General Duty Clause and standards) and, as noted in Section 19 of the Act, develop, implement, and evaluate a comprehensive program.
The Federal program specifically extends the General Duty Clause and standards requirements to supervisors “to the extent of their authority” (1960.9). The 5(b) requirement in the private sector (regarding employee responsibilities) has its counterpart in 1960.10, with a specific addition relating to use of safety equipment.
Subpart D covers Inspection and Abatement. 1960.25 contains the important requirement relating to frequency of inspection. All areas and operations of each workplace, including offices, must be inspected annually. Where there is an increased risk of accident or illness due to the work performed, more frequent inspections are required.
The conduct of inspections, covering preparation, inspection procedures, and the written report, is dealt with in 1960.26. The guidelines for employee reporting of hazards are found in 1960.28. Section 1960.31 outlines the situations where OSHA would conduct an unannounced inspection.
Special provisions concerning GSA and NIOSH are covered in Subpart E, 1960.35.
Subpart F deals with Occupational Safety and Health Committees, their purpose, and functions. Ideally, such committees can perform a valuable function by maintaining an open channel of communication between employees and management concerning safety and health matters.
An important provision related to reprisals is contained in Subpart G. This Subpart incorporates the Federal equivalent of Section 11 (c) of the OSH Act. It provides that employees not be subject to restraint, interference, coercion, discrimination, or reprisal for their participation in the agency's safety and health program.
Subpart H deals with safety and health training. The type of training required for top management, supervisors, safety and health specialists, inspectors, employees with collateral duties, committee members, and employee representatives is spelled out in the Subpart.
Subpart I covers Record keeping and Reporting Requirements. Federal agency record keeping and posting requirements differ from private sector requirements. The Federal agency requirements are outlined in “Record keeping and Reporting Guidelines for Federal Agencies,” OSH Publication 2014.
Evaluation of Federal Occupational Safety and Health Programs is outlined in Subpart J. Agency heads are responsible for conducting self-evaluations of their safety and health programs and the Secretary of Labor - OSHA is responsible for evaluating the extent to which each agency head has developed and implemented agency programs.
The final subpart of 29 CFR 1960, Subpart K, covers Field Federal Safety and Health Councils. Guidelines for establishing councils, membership, and participation, and operating procedures are provided.
We have discussed the fact that under Title 29, Chapter XVII is set aside for the Occupational Safety and Health Administration. Under Chapter XVII, the regulations are broken down into Parts. Part 1910, for example, is the standard you are all familiar with, “Occupational Safety and Health Standards,” commonly known as the “General Industry Standards.” Under each part, such as Part 1910, major blocks of information are broken down into Subparts. The major Subparts in the 1910 standards include:
Subpart D - Walking-Working Surfaces
Subpart E - Means of Egress
Subpart F - Powered Platforms, Manlifts, and Vehicle-Mounted Work Platforms
Subpart G - Occupational Health and Environmental Control
Subpart H - Hazardous Materials
Subpart I - Personal Protective Equipment
Subpart J - General Environmental Controls
Subpart K - Medical and First Aid
Subpart L - Fire Protection
Subpart M - Compressed Gas and Compressed Air Equipment
Subpart N - Materials Handling and Storage
Subpart O - Machinery and Machine Guarding
Subpart P - Hand and Portable Powered Tools and Other Hand-Held Equipment
Subpart Q - Welding, Cutting, and Brazing
Subpart R - Special Industries
Subpart S - Electrical
Subpart Z - Toxic and Hazardous Substances
CITATIONS AND PENALTIES
Citations Issued by the Area Director
After the compliance officer reports findings, the area director determines what citations, if any, will be issued, and what penalties, if any, will be proposed.
Citations inform the employer and employees of the regulations and standards alleged to have been violated and of the proposed length of time set for their abatement. The employer will receive citations and notices of proposed penalties by certified mail. The employer must post a copy of each citation at or near the place a violation occurred for 3 days or until the violation is abated, whichever is longer.
Penalties
These are the types of violations that may be cited and the penalties that may be proposed:
Other Than Serious Violation - A violation that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm. A proposed penalty of up to $7,000 for each violation is discretionary. A penalty for an other-than-serious violation may be adjusted downward by as much as 95 percent, depending on the employer's good faith (demonstrated efforts to comply with the Act), history of previous violations, and size of business. When the adjusted penalty amounts to less than $50, no penalty is proposed.
Serious Violation - A violation where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard. A mandatory penalty of up to $7,000 for each violation is proposed. A penalty for a serious violation may be adjusted downward, based on the employer's good faith, history of previous violations, the gravity of the alleged violation, and size of business.
Willful Violation - A violation that the employer knowingly commits or commits with plain indifference to the law. The employer either knows that what he or she is doing constitutes a violation, or is aware that a hazardous condition existed and made no reasonable effort to eliminate it. Penalties of up to $70,000 may be proposed for each willful violation, with a minimum penalty of $5,000 for each violation. A proposed penalty for a willful violation may be adjusted downward, depending on the size of the business and its history of previous violations. Usually, no credit is given for good faith.
If an employer is convicted of a willful violation of a standard that has resulted in the death of an employee, the offense is punishable by a court-imposed fine or by imprisonment for up to 6 months, or both. A fine of up to $250,000 for an individual, or $500,000 for a corporation, may be imposed for a criminal conviction.
Repeat Violation - A violation of any standard, regulation, rule, or order where, upon reinspection, a substantially similar violation can bring a fine of up to $70,000 for each such violation. To be the basis of a repeat citation, the original citation must be final; a citation under contest may not serve as the basis for a subsequent repeat citation.
Failure to Correct Prior Violation - Failure to correct a prior violation may bring a civil penalty of up to $7,000 for each day the violation continues beyond the prescribed abatement date.
Additional violations for which citations and proposed penalties may be issued upon conviction:
Falsifying records, reports, or applications can bring a fine of $10,000 or up to 6 months in jail, or both.
Violations of posting requirements can bring a civil penalty of up to $7,000.
Assaulting a compliance officer, or otherwise resisting, opposing, intimidating, or interfering with a compliance officer while they are engaged in the performance of their duties is a criminal offense, subject to a fine of not more than $5,000 and imprisonment for not more than 3 years.
Citation and penalty procedures may differ somewhat in states with their own occupational safety and health programs.
The following web sites are the actual Regulations:
Federal Executive Order http://www.eh.doe.gov/feosh/resource/eo12196.htm
OSHA
http://www.osha.gov/fso/osp/faq.html#oshaprogram
29-CFR 1960 Federal Safety Program Standards
States
Section 18 of the Occupational Safety and Health Act of 1970
Click this link to see "How directives fit in the hierarchy of laws, regulations, and other direction?"
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Unit 1B, Safety, Activity 2