The federal Occupational Safety and Health Act (OSH Act) is aimed at reducing workplace injuries, illnesses, and deaths. The OSH Act grants the Occupational Safety and Health Administration (OSHA), an agency of the federal government, the authority to create rules, standards, and regulations governing workplace safety and health. The OSH Act authorizes states to develop and administer (with OSHA’s approval) their own state plans setting forth their own job safety and health standards that are at least as effective as the federal standards. In 1988, OSHA approved the Virginia Occupational Safety and Health (VOSH) program. The VOSH Program applies to all public and private employers in the state, but does not apply to federal employees, the U.S. Postal Service and other certain other employers coming under federal jurisdiction. The OSH Act (and OSHA’s standard and regulations) applies to the employers in Virginia not otherwise covered by the VOSH program.
Virginia’s Department of Labor and Industry (DOLI) administers and enforces the VOSH program. The Virginia Safety and Health Codes Board (Board) distributes the standards that DOLI enforces. As described in more detail within, the VOSH program contains not only the federal OSH Act standards but also a number of unique standards beyond those set forth by the OSH Act.
The OSH Act and the VOSH program have broad coverage over nearly all employers and their employees across various fields and industries, including religious employers to the extent that their workers are employed for a non-religious purpose. Certain employers and employees are, however, exempt from OSH Act coverage.
The limited exemptions from the OSH Act coverage include:
The OSH Act’s broad coverage extends to nearly all private sector employees. This includes both executives and managers. In most circumstances, however, coverage does not extend to employees whose working conditions are regulated by other provisions of federal law, such as:
In certain situations where multiple employers perform work or are otherwise affiliated with a single worksite, an employer may be liable for OSH Act violations occurring on the worksite even if not involving its own employees. One common example of a multi-employer worksite is a construction project where a general contractor and numerous subcontractors all work at the same worksite. To address safety and health violations on multi-employer worksites, both OSHA, and its Virginia counterpart, follow a multi-employer worksite doctrine, which sets forth the circumstances under which more than one employer may be cited for a hazardous condition at a worksite that violates an OSH Act or VOSH program standard.
An employer can be held liable under the multi-employer worksite doctrine under the following four circumstances:
The exact extent of a controlling employer’s duty is far from clear. However controlling employers owe a lesser duty to exercise reasonable care in that context than they do with respect to protecting their own employees. Various factors affect how frequently and closely a controlling employer must inspect the worksite to meet its standard of reasonable care, including:
More frequent inspections are typically needed if the controlling employer knows that the other employer has a history of non-compliance, or if the controlling employer has never worked with the other employer and does not know its compliance history. Less frequent inspections are appropriate where the other employer appears to have implemented effective safety and health efforts. A high level of compliance by the other employer is an important indicator of effective safety and health efforts. Other important safeguards for controlling employers include regular jobsite safety meetings and safety training. Controlling employers should also follow a system for enforcing employee compliance with safety and health requirements.
Employers affiliated with a multi-employer worksite should take steps to limit their OSH Act liability for injuries on the worksite. Suggested steps include the following:
Covered employers must adhere to a number of general requirements and specific recordkeeping and reporting requirements in order to comply with the OSH Act.
Employers are responsible for the following under the OSH Act:
All employers are required to keep records of occupational deaths, injuries, and illnesses, and to make certain reports to OSHA. Smaller employers (with 10 or fewer workers) and employers who have establishments in certain retail, service, finance, real estate, or insurance industries are not required to keep those records. Smaller employers, however, must report any occupational fatalities or catastrophes that occur in their establishments to OSHA, and they must participate in government surveys if they are asked to do so.
Within eight hours of the death of an employee from a work related incident or the inpatient hospitalization of three or more employees as a result of a work related incident, the employer must report the fatality or hospitalization by telephone to the nearest VOSH office. A listing of VOSH offices and their contact information is available at:
If the employer is attempting to report a fatality outside of normal business hours, the employer must call the designated emergency number for the appropriate VOSH office. A listing of the emergency numbers for the various VOSH offices is available at:
Employers may not report fatalities or incidents resulting in inpatient hospitalization of three or more persons by leaving a message on an office’s answering machine, faxing the office, or sending an email. Instead, employers must make the report to a live person either over the telephone or in person. If the employer does not learn of the incident right away, it must make the report within eight hours of the time the employer learns of the incident. Failure to report an incident in a timely manner may result in a fine of up to $5,000.
For each fatality or multiple hospitalization incident, the employer must provide the following information:
In addition to reporting fatalities and multiple hospitalization incidents, the employer must also prepare and maintain records of “recordable” injuries and illnesses. An injury or illness is “recordable” and records must be kept if:
Within seven calendar days of receiving information that a recordable injury or illness has occurred, the employer must enter information regarding the incident on OSHA Form 300 (injury and illness log) and must complete OSHA Form 301 (incident report). At the end of the year, employers must review the injury and illness log to verify its accuracy and summarize it on OSHA Form 300A. The Form 300A must be certified by a company executive and posted for three months, from February 1 to April 30 of the following calendar year. Employers must retain all of these forms for five years following the calendar year to which they relate, and each of the forms can be obtained at:
The flowchart on the following page is useful for determining whether an injury is recordable.
Is an injury recordable?
Records of exposure to potential toxins and related medical records must be kept for the duration of the person’s employment, plus at least 30 years. Employees exposed to potential toxins must be granted access to these records. All medical exams must be treated as confidential and kept separately from the employee’s general personnel file.
The OSH Act has two sources of standards that regulate workplace safety:
The OSH Act states:
Each employer shall furnish to each of its 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.
If the workplace condition under investigation does not violate a specific OSHA safety standard, OSHA will analyze whether the condition constitutes a violation of the general duty clause, such as whether there was a recognized hazard that was causing or is likely to cause serious physical harm.
Employers should note that the general duty standard is, by design, vague and all encompassing. Additionally, even if an employer has not discovered a particular hazard, the hazard is considered “recognized” for the purposes of the general duty clause when its existence and means of correcting it are known in the employer’s industry.
OSHA has issued hundreds of safety and health standards for specific workplace hazards, which require employers to maintain conditions and practices appropriate to protect employees. For example, OSHA requires employers to provide proper personal protective equipment to employees at no cost, with a few exceptions. The limited exceptions to this include:
Employers must familiarize themselves with applicable standards and ensure compliance with such standards. Although this list is not intended to be exhaustive, some workplace hazards to which OSHA has issued specific standards include:
The complete index for these specific regulations may be found at:
As set forth earlier, the VOSH program continues a number of unique standards that extend well beyond the scope of OSHA’s standards. These standards include, but are not limited to:
A complete list of Virginia’s unique standards may be found at:
Employers are also encouraged to consult with a Virginia industrial hygienist familiar with the employer’s type of work to audit the workplace to see if there are safety hazards and identify possible solutions. This consultation will hopefully yield a safer workplace with fewer injuries and will also demonstrate a commitment to safety that will be viewed positively by OSHA during an inspection and afterwards during the negotiations leading to a resolution if citations for safety violations were issued. That said, the consultation should only occur if there is indeed the commitment to correct on a reasonable basis the hazards identified by the consultant.
At the request of an employer, OSHA may grant permission to deviate from the requirements or timeframe of a standard by issuing a variance. Variances may be temporary, permanent, or experimental, depending on the circumstances. A temporary variance is designed to provide an employer with time to come into compliance with the requirements of an OSHA standard subsequent to the effective date of the standard. A permanent variance authorizes an alternative to a requirement to an OSHA standard as long as the applicant’s employees are provided with employment and a safe and healthy workplace. An experimental variance may be issued when OSHA determines that an experiment is designed to demonstrate or validate new and improved technology to protect employees.
Employers must meet specific requirements in order to ask OSHA for a variance. For instance, where a temporary variance is sought from a newly issued standard, the employer must demonstrate that it cannot fully comply with the effective date due to a shortage of materials, equipment, or technical or professional personnel. Where a permanent variance is sought from the requirements of a standard, the employer must demonstrate that its alternatives provide employees with protection at least as effective as the protection provided by the standard.
If any of the chemicals used in the workplace are on OSHA’s hazardous chemical list, then the employer must meet OSHA’s hazard communication standard. Many businesses are surprised to find themselves on the list simply as a result of the cleaning products they use. For instance, companies that use ammonia, bleach, lime-a-way, or most stainless steel cleaners would fall within the standard’s domain. Hence, this standard applies to most businesses. Under the standard, an employer must develop a written hazard communication program, maintain material safety data information sheets, meet certain labeling requirements, and give employees hazard communication training at least annually. Details on the hazard communications requirements are available on the OSHA website at:
In order to ensure that employers label hazardous material appropriately and provide employees with the information they need to protect themselves from hazardous materials in the workplace, OSHA also requires specific training in regard to labeling, pictograms, and providing precautionary statements. Information regarding this required hazard communication training is available at:
In addition to OSHA liability, failure to comply with OSHA standards could be used as evidence of negligent or reckless conduct. Therefore, failure to comply with specific standards could expose employers to civil liability and even criminal liability. As described herein, to mitigate such risks employers seeking to resolve citations with OSHA should always request that an “exculpatory clause” be included in any agreement with OSHA.
VOSH compliance officers are authorized to conduct on-site inspections and interviews to determine whether an employer is in compliance with the OSH Act and/or the VOSH program. Inspections typically include four stages:
At the outset, any OSHA inspection will be much easier on employers that have a demonstrated, thorough, and complete commitment to safety throughout their history. Likewise, employers are encouraged to prepare and disseminate to key employees a “response plan” setting forth instructions and logistics for any such inspection. Such a response plan will ensure that the response is not spontaneous but is instead done in a way that reduces the risk of citations and fines.
Key elements for this response plan should address the following points:
The inspector may not insist on private interviews with management or supervisory personnel, whose remarks are considered binding upon the company. Management and supervisory personnel should be accompanied by a witness during any interviews with the inspector.
Finally, employers faced with an inspection should also remember two key points throughout the process:
Violations of the OSH Act and/or the VOSH standards subject employers to the risk of civil and criminal penalties. The amount of each penalty is proposed by OSHA/VOSH and depends on the nature of the corresponding violation. Additionally, the U.S. Department of Justice may bring a criminal action against an employer in cases of willful violations leading to death and in cases of specific misconduct in dealing with OSHA. Employees are not subject to a penalty for violations of the OSH Act. Rather, employers are responsible for ensuring employee compliance.
VOSH may issue citations to employers who:
VOSH may issue a citation immediately after any inspection or by a letter to the employer. VOSH may not, however, issue a citation more than six months after the occurrence of the violation. Every citation must contain:
An employer wishing to contest the abatement date must do so within 15 days of receiving the citation. If VOSH has reasonable cause to believe that the employer failed to abate the violation by the abatement date, it may issue a citation for failure to abate. Any such violation must also set forth the proposed penalty for such failure. An employer wishing to contest this citation must do so within 15 days of receiving the citation. A description of available defenses is set forth herein.
During the 15-day period, the employer can request an informal conference with the VOSH regional office. An informal conference may be held for the purpose of discussing any issue raised by the inspection, citation, abatement order, proposed penalty, notice of contest, or any other disputed issue in an effort to reach a compromise on the citations before proceeding to litigation. This informal conference is the employer’s opportunity to show why the citation is not factually or legally correct. Employers should present, in an organized and understandable way, why the inspector was incorrect in how he/she understood the situation of the risk of harm. Employers should emphasize the abatement efforts and costs of abatement that were undertaken and completed before the citation was issued an again before the informal conference was started. After the facts are reviewed, there will be a negotiation over which violations are still maintained, which are dropped, and what the proposed penalties will be based on the new information received.
If no compromise is reached (or if the employer decides to forego the informal conference), the employer must file the written notice of contest within 15 days. When a citation is contested, VOSH must file a civil action in the appropriate circuit court asking that court to affirm, modify, or vacate the commissioner’s citation or proposed penalty.
Settlement continues to be an option at all times during this process.
It is quite common that the violation observed by the inspector can be fixed or abated right then and there (for instance, coiling a hose thought to be a tripping hazard or covering an electrical panel). If the employer can fix the situation immediately – do it. As set forth previously, abatements with abatement dates will be mentioned in the citation, which can be issued anytime within the six months after the violation.
Employers should evaluate whether to complete abatements. Although completing abatements is essentially an admission that there was a problem, it is also further evidence of a commitment to safety and may be helpful in resolving the citation later.
If an employer generally agrees with the citation but cannot meet the abatement deadline in the citation, the employer must contest the abatement date within 15 days of the citation.
VOSH is authorized to propose penalties for violations of standards, regulations, or of the general duty to provide a workplace free of recognized hazards. The amount of a penalty varies depending on the nature of the violation and may be reduced from the statutory maximum depending on the circumstances. Violations and the corresponding penalties fall into six general categories under the OSH Act.
Other than serious
This category includes violations that probably would not cause death or serious physical harm but do have a direct relationship to job safety and health. Each other than serious violation may carry a penalty of up to $7,000.
This category includes violations with a substantial probability of death or serious injury where the employer knew or should have known of the hazard. Each serious violation may carry a penalty of up to $7,000.
This category includes violations that the employer intentionally and knowingly commits as well as violations committed with a plain indifference to the law. A violation is committed with plain indifference to the law where an employer is aware of a hazard but makes no reasonable efforts to eliminate the hazard. Each willful violation may carry a penalty of up to $70,000 with a minimum penalty of $5,000. Additionally, a willful violation resulting in the death of an employee may expose an employer to criminal liability.
This category includes violations where OSHA finds a substantially similar violation upon re-inspection. However, citations under contest may not form the basis for a subsequent repeated citation. Each repeated violation may carry a penalty of up to $70,000. The punishment for a repeated violation causing death is a fine of not more than $140,000, imprisonment of not more than one year, or both.
Failure to correct cited violations
This category applies where employers fail to correct cited violations by the deadline (the abatement deadline). Each violation an employer fails to correct may carry a penalty of up to $7,000 for each day beyond the abatement deadline that the violation is not corrected.
Violating posting requirements
Violations of posting requirements may carry a penalty of up to $7,000.
The OSH Act also authorizes criminal penalties, including fines and jail time, for:
(October 1, 2014 – September 30, 2015)
Hazard communication standard
Powered industrial trucks
Electrical, wiring methods
Electrical, general requirements
VOSH may reduce the amount of a penalty depending on the circumstances. Additionally, VOSH will not propose a penalty in situations where the penalty is reduced below $100.
The factors used by VOSH to reduce penalties are:
Although not expressly stated, VOSH will also consider the perspectives of the employees on the commitment of safety by the employer as a potential basis for reducing a penalty. Employee or union representatives advocating for the employer in response to the citations can be very effective.
Employers may raise defenses to citations, penalties, abatement deadlines, and methods of abating violations. When challenging an alleged violation, the employer should raise all applicable defenses.
The following list describes some of the defenses commonly asserted by employers in response to VOSH/OSHA citations:
Incidents of workplace violence create potential liability exposure for employers. Employers may also suffer significant costs resulting from lost productivity. Thus, it is prudent for employers to take preventative steps to minimize the risk of violence in their place of work. This section outlines the various risks of liability presented by workplace violence and various strategies to minimize incidents of workplace violence.
Neither OSHA nor VOSH have issued any regulations specifically addressing workplace violence. OSHA does consider workplace violence a recognized hazard and has issued guidelines aimed at reducing workplace violence. OSHA may rely on these guidelines to issue citations for incidents of workplace violence under the general duty clause.
The following are some of these OSHA issued guidelines aimed at minimizing violence in the workplace:
OSHA recommends a team oriented approach incorporating both management and employees into committees aimed at identifying and minimizing risks of violence in the workplace. These committees should consult employees to identify security concerns, report incidents of violence, and recognize escalating situations. In addition, OSHA recommends debriefing and medical/psychological counseling for employees involved in violent incidents. OSHA further recommends that employers create a comprehensive written program to address workplace violence. Such a program should include a zero-tolerance policy for violence and threats, a no-retaliation policy, a procedure for reporting and documenting incidents, and security procedures.
OSHA recommends that employers undertake a thorough analysis of the risks of violence in their place of work. Suggested steps include analyzing prior incidents of violence, contacting other employers within the industry, surveying employees, and conducting physical inspections of the premises. When conducting this type of analysis, employers should keep the following in mind: Employers who choose to perform a worksite analysis may expose themselves to potential liability when information obtained through a worksite analysis is not acted upon by the employer.
Once hazards are identified, OSHA suggests that employers implement mechanisms to prevent and control workplace incidents. Specific hazard prevention and control mechanisms include the installation of alarms and other security devices, as well as administrative procedures for responding to incidents. Employers should implement both immediate response procedures to cool off escalating situations carefully and long term response procedures consisting of discipline and investigation.
OSHA recommends that employers educate workers to the risks of workplace violence and the specific policies and procedures in place to minimize these risks.