This article is reprinted with permission from the September 2006 issue of TEQ magazine.
You consider the Personnel Manager or V.P. of Human Resources in your organization to be an industry savvy, well-educated person regarding issues facing your business. Then, an employee raises a concern regarding a strange chemical smell in the office, or you receive a letter from the Occupational Safety and Health Administration (OSHA) requesting information. The first reaction from this skilled member of your team is “Don’t worry, OSHA is not concerned with the office workplace.” Is this correct? Or, is OSHA concerned about your office workplace and/or has any authority to inspect it?
Although the office is not the agency’s most frequently inspected workplace, many of the Department of Labor’s OSHA standards and regulations apply to protect employees in this environment. Thus, managers cannot ignore their companies’ compliance obligations.
OSHA’s Application to the Office Environment
The Occupational Safety and Health Act applies to any “person engaged in a business affecting commerce who has employees.” The courts have held that most businesses affect commerce in some way. Thus, the Act applies to employers and their employees, with limited exceptions (e.g., self-employed persons and employees whose working conditions are controlled by other federal agencies), in industries as varied as heavy industrial manufacturing, construction, healthcare and retail. As such, employers who employ even one worker in an office environment are covered by the Act.
Employers in office environments must ensure that they are fully compliant with all applicable OSHA standards and regulations. Employers can obtain information regarding which standards and/or regulations may apply to a particular industry by visiting OSHA’s Web site at www.osha.gov. The agency has a user-friendly Web site, which contains a substantial amount of information regarding standards applicable to the employer’s industry, most frequently cited standards, and ways in which employers can comply with the same.
OSHA Recordkeeping Obligations
Employers with 10 or fewer employees are exempt from most OSHA recordkeeping requirements. Moreover, a number of industries classified as low-hazard (e.g., retail, service, finance, insurance and real estate sectors) are exempted. However, all employers, no matter the number of workers in their employ, must continue to report any workplace incident resulting in a fatality or the hospitalization of three or more employees. The inspector can examine records that employers are required to maintain under the Act, such as the log and summary of occupational illness and injuries, Material Safety Data Sheets (i.e., records revealing hazards related to chemicals used by cleaning or maintenance staff in the office) and compliance programs required by specific OSHA standards, etc. Other records, such as company accident reports and insurance company studies should not be given to OSHA without first discussing it with the company’s attorney.
OSHA Enforcement Mechanisms and Penalties
OSHA enforces its standards and regulations by conducting inspections. A compliance officer will be dispatched to a worksite in response to an employee complaint, an accident/fatality or pursuant to a randomly scheduled inspection. Office worksites are rarely inspected as a result of a randomly scheduled inspection. When they are, the issues generally involve recordkeeping or hazards that are easily abated (e.g., preparation of an emergency evacuation plan).
If a violation is found, fines are determined by the gravity of the alleged hazard. The categories of violations are:
- Willful - the employer knows of the existence of the hazard, and does not abate it. Fines up to $70,000 can be imposed and there is a minimum penalty of $5,000.
- Repeat - the employer receives a second citation for a similar hazard. Fines up to $25,000 can be imposed.
- Serious - death or serious physical harm is substantially probable and the employer knows or should know of the hazard. Fines to $7,000 can be imposed.
- Other or non-serious - less than serious injuries that the employer knows or should know about are probable. Fines up to $7,000 can be imposed.
- De Minimus - Band Aid treatment or less is involved and no fine is issued.
If OSHA has already cited an employer for failure to comply with a particular standard, and the employer continues to ignore directives to abate the situation, the Agency can issue a fine of up to $7,000 for each day the violation remains uncorrected. This is called a penalty for “failure to abate.”
Your Rights as an Employer
If OSHA inspects an office workplace, the employer has the right to:
- Obtain proper identification of the OSHA compliance officer prior to an inspection of the premises and to be given the reason for the inspection;
- Have an opening conference with the compliance officer before an inspection is conducted and have a closing conference at the end of an inspection;
- Accompany the compliance officer on the inspection and the compliance officer must maintain confidentiality of any trade secrets identified by the employer;
- Choose to file a notice of contest with the OSHA Area Director within 15 working days of receipt of the citation, if proposed citations and penalties are issued, and/or hold an informal conference with the Area Director to discuss modification or vacation of the citations and penalties.
Factors to consider in determining whether or not to contest the citation include:
- Did the employer commit the alleged violation?
- What is the cost and feasibility of abating the violation? (Can the condition be abated? Can you abate the condition in the time set forth in the citation? Is abatement feasible?);
- The classification of the violation (Was the alleged violation properly classified as willful, repeated, serious, other, de minimus or a failure to abate?); and
- The proposed penalty (Is it reasonable considering the alleged violation?).
If OSHA comes knocking on the door of your office workplace, recognize that this Agency does have the authority and interest in assuring the safety and health of all employees. Legal counsel can provide valuable assistance both during the inspection and to challenge any citation or penalty issued.