Employee Rights Under The Occupational Safety and Health Act (“OSHA”)

Workplace Safety

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;

ii. Black­list­ing;

iii. Demot­ing;

iv. Deny­ing over­time or promotion;

v. Dis­ci­plin­ing;

vi. Deny­ing benefits;

vii. Fail­ing to hire or rehire;

viii. Intim­i­dat­ing;

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.