The Occupational Safety and Health Act (“OSHA”), 29 U.S.C §§ 651 et. seq., is a federal law that was designed to ensure a safe and healthy workplace. OSHA’s rules and regulations apply in all 50 states to most private sector employees and employers. However, OSHA does not apply to employees who work for state and local governments.
Importantly, OSHA grants employees numerous protections. As employment lawyers, we have listed some of the important employee rights under OSHA:
1. Receive Training from the employer, in language and vocabulary that is understandable. An example of such training is on chemical exposure during work and the effects that such chemicals may have on employee health.
2. Request Information from the employer, including, but not limited to:
a. OSHA standards, rules, and regulations;
b. Safety and health hazards in the workplace;
c. Chemicals used in the workplace;
d. Tests the employer has done to measure chemical exposure;
e. Noise and radiation levels; and
f. Precautions and procedures to be followed when an employee is exposed to hazardous chemicals or other toxic substances.
3. Receive Protective Equipment free of charge, including but not limited to goggles, earplugs, gloves, and harnesses.
a. Note: The employer is responsible for knowing when such equipment is required.
4. File a Complaint with OSHA and Request an On-site Inspection if there is a belief that a workplace has serious hazards or the employer is violating OSHA standards.
a. A complaint may be:
i. Filed online
ii. Mailed to the nearest OSHA office, which is a requirement if you want to request an OSHA inspector to visit your workplace, 9 C.F.R. § 1903.11
iii. Telephone (720.265.6550) or fax (720.264.6585)
b. Maintaining anonymity requires an employee to make this request in writing when a complaint is filed. 29 U.S.C. 657(8).
5. Participate in an Inspection, including, but not limited to:
a. Accompanying the inspector during the workplace tour, 29 CFR 1903.8;
b. Speaking privately with the inspector; and
c. Attending meetings with the inspector before and after the inspection.
6. Review the Results of an OSHA Inspection
a. A citation is issued when an inspector determines that an employer is in violation of an OSHA standard, regulation or requirement.
b. An employer must post the citation in a conspicuous area.
7. Appeal the Results of an OSHA Inspection
a. Workers may appeal the amount of time that is allotted to the employer to correct the violation only.
b. The appeal must be submitted in writing to the U.S. Occupational Safety and Health Review Commission, 1120 20th Street NW, 9th Floor, Washington, DC 20036
8. Receive an Explanation if no citation was issued or no inspection was conducted
a. The OSHA area director will send a letter to the complainant explaining the agency’s decision not to conduct a workplace visit.
b. If no citation was issued, but a workplace visit occurred, the reason for the non-issuance of a citation will be explained in a letter.
9. Protection from Discrimination, i.e., Whistleblower Protections, Retaliation
a. An employer cannot punish an employee for exercising his or her rights under OSHA. Employers are prohibited from exercising retaliation in the form of any adverse action taken against an employee, including but not limited to:
i. Firing or laying off;
iv. Denying overtime or promotion;
vi. Denying benefits;
vii. Failing to hire or rehire;
ix. Making threats;
x. Reassigning in a manner affecting protectors for promotion; or
xi. Reducing pay or hours.
b. When an employer retaliates against an employee, the employee must file a complaint with OSHA within 30 days of the alleged retaliation.
10. Refuse Work That Puts an Employee in Danger of Death or Serious Injury
a. In determining whether refusal is proper, the following conditions must be satisfied:
i. The employee must have a reasonable belief that there is a real, imminent danger of death or serious injury;
ii. There is no reasonable alternative; and
iii. There is not enough time to correct the hazard through normal OSHA enforcement procedures, i.e., filing a complaint.
Although some states have enacted legislation similar to OSHA, i.e., OSHA-approved state plans, Colorado has not. Unfortunately, even in cases of extreme retaliation, employees cannot directly sue pursuant to OSHA as the law provides no private cause of action. Westine v. Gonzales Const. Co., 103 F.3d 145, *1 (10th Cir. 1996). However, the law may provide other protections for employees who blow the whistle on workplace safety issues.