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The Guardian Fall Team Blog

If you missed our previous post, (or need a refresher), we are taking a look at a commonly-heard story of an OSHA inspector coming to a job site, seeing a problem, and shutting the job site down. Last week we explained how the original complaint (a supposedly non-compliant lanyard) by the OSHA inspector was not valid, and this week, we will jump into the second part of the story; whether or not an OSHA inspector can immediately shut down a job site. Here we go…

Getting Down To Brass Tacks.

The fact is that OSHA cannot come to a job site and, because of a violation, immediately shut down operations; they simply do not have the authority - they are not the police. If an inspector sees a violation, according to the OSH Act of 1970, they, “…shall with reasonable promptness issue a citation to the employer.” The Act does not state that the inspector may stop work or otherwise interrupt operations at that moment. In cases of imminent danger, where employees are at direct risk of death or serious injury, an inspector may recommend the employer remove workers from the area, but cannot go further. Referring back to the OSH Act of 1970, it states:

  
The United States district courts shall have jurisdiction, upon petition of the Secretary, to restrain any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.

Meaning that in order for OSHA to shut down a job site, the Secretary of Labor must petition a local district court for an injunction to halt operations. Which of course means the original complaint must make it all the way through the lengthy petition process before returning to the offending employer.

 

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Not Off The Hook.

Now, don’t take this fact as a reason to rebuff the regulations and carry on with dangerous work conditions just because the OSHA inspector (who, it seems, is generally perceived to be about as popular as the tax man), can’t technically shut you down. The reality is that in a way, every worker on the job site is their own OSHA inspector, and has the right to stop working in dangerous conditions. That’s right, every employee has the right to a safe work environment, and if the work environment is not safe, they can refuse to work in that unsafe environment. And just to make it clear, the right to a safe work environment isn’t just a suggestion – it’s the letter of the law. The General Duty Clause of the OSH Act of 1970 says that each employer:

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
(2) shall comply with occupational safety and health standards promulgated under this Act.

 

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Pick Your Idiom

I’m not sure how much clearer this needs to be stated; it’s all right there in black and white. To add to this, if a worker refuses to work in a dangerous environment, the employer cannot send them home for the day without pay until they “wise up” and decide to concede to the employer’s wishes. Not only is the worker protected in these cases by Whistleblower laws, there is actual case precedence for a situation just like this.


The Supreme Court case of Whirlpool v. Marshall  (1980), details an event where two workers were sent home early without pay for refusing to perform work in an area they deemed too dangerous. The work required them to walk on suspended netting designed to catch parts that might fall from overhead conveyor belts. The netting had been damaged in some places, and in fact, other workers had fallen through the netting to the floor below (some 20 feet), and one to his death a year prior.


The court’s decision held that the employees had the right to refuse dangerous work, and also that the employer could not dock their pay or send them home because of it. In short, the decision affirmed the workers’ rights to a safe workplace, and in doing so, made individual workers a kind of de facto  OSHA inspector, i.e., if they see something dangerous, they can report it and refuse to work in the environment until the risks are mitigated. So, while it is true OSHA cannot simply waltz onto your job site and close the doors, your employees can effect a similar result by (rightly) refusing to work in a dangerous environment. In the end, the employer is left with only one option: fix the problem, and don’t let it happen again.


So, in our example where an operation was supposedly shut down by OSHA, we know something is amiss. Either the person reporting the event didn’t know how to accurately portray what happened, or they chose the more hyperbolic, Henny Penny – “The sky is falling” - response for the sake of making a good story (and unfortunately further a gross misunderstanding). No matter the reason, the mistaken report helps neither OSHA do its job, nor the employer or employee know the truth of the matter. Least of all, it does not do anything to actually increase safety on the job site.


The last thing I want to do is create enmity between OSHA and employers, or employers and workers. But in the interest of helping to promote knowledge and understanding, it is valuable to know what responsibilities (and authority) each part of these relationships has, even if that seems to make OSHA less powerful and employees more powerful. And I can understand the frustration of employers as they sit squarely in the middle, trying to balance running a business and all the stresses that come along with that, and also being OSHA-aware in order to keep workers safe and avoid citations. And speaking of citations, remember that even though an OSHA inspector can’t force an employer to shut its doors, those citations come with ever-increasing fines, and those fines may very well force the employer to shut their own doors, especially in the event of repeat offenses, some of which I’ve seen reach a quarter-million bucks.


The point of going into so much detail about such a seemingly simple (and common) story, is to show once again that education is the worker-at-height’s best friend, and also that things are not always as they seem. Knowledge eliminates fear and uncertainty, and allows a person to go about their work with the confidence that they are doing the right thing. Furthermore, it empowers a worker to say something if they see something they know is wrong, and to know they cannot be retaliated against for standing up for their rights on the job.


Ongoing education should be a regular part of every worker’s life. Whether it’s reviewing pertinent OSHA regulations, re-reading (because you’ve already read them once – right?) the owner’s manuals for all of your equipment, or even sending an email asking for clarification of a confusing aspect of fall protection, constant education is an excellent way to ensure you are at the forefront of safety. The fact you have read this article means you see education as a vital part of your job – well done.


We’ll keep exploring topics like this in the future, and pull back the curtain on more of these misunderstood aspects of fall protection. If you have a specific question or example you’d like to see tackled, feel free to contact us via our twitter or Facebook social media pages; we’d love to hear from you. Until then, be educated, be vigilant, and be safe up there!

 

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