The OSH Act of 1970: Foundation of Workplace Safety

Historical Context

Prior to 1970, workplace safety in America was inconsistently regulated through a patchwork of state laws and industry-specific federal statutes. The post-World War II industrial and construction boom had led to alarming workplace injury statistics. By the late 1960s, the United States was experiencing approximately 14,000 workplace fatalities annually—nearly 38 deaths per workday. An estimated 2.5 million workers were disabled by workplace injuries each year, and countless others developed occupational diseases.

The construction industry was particularly hazardous, with injury rates significantly higher than most other sectors. Common construction hazards such as falls, trench collapses, scaffold failures, and electrocutions claimed hundreds of lives annually, often with little regulatory oversight or consequence for employers with unsafe practices.

Several high-profile workplace disasters in the 1960s brought attention to these issues. In particular, the 1968 Farmington Mine disaster in West Virginia, which killed 78 coal miners, catalyzed public demand for comprehensive federal action on workplace safety. Senator Harrison Williams of New Jersey and Representative James O'Hara of Michigan introduced legislation that would eventually become the Occupational Safety and Health Act.

After extensive debate and revision, Congress passed the Occupational Safety and Health Act, which President Richard Nixon signed into law on December 29, 1970. The Act took effect on April 28, 1971, a date now commemorated as Workers' Memorial Day.

Purpose and Scope of the OSH Act

The OSH Act's stated purpose is "to assure safe and healthful working conditions for working men and women by authorizing enforcement of the standards developed under the Act; by assisting and encouraging the States in their efforts to assure safe and healthful working conditions; by providing for research, information, education, and training in the field of occupational safety and health."

This broad mandate represented a fundamental shift in federal policy, establishing for the first time that every working person in America has the right to a workplace free from recognized hazards. The Act specifically applies to employers and employees in the 50 states, the District of Columbia, Puerto Rico, and all U.S. territories.

The OSH Act covers most private sector employers and their employees. In construction, this means virtually all contractors and subcontractors, regardless of size, fall under its jurisdiction. Notable exceptions include:

• Self-employed individuals
• Family members of farm employers
• Federal agencies (covered under a separate section of the Act with similar protections)
• State and local governments (in states without OSHA-approved state plans)
• Workplaces regulated by other federal agencies under different statutes (such as mines regulated by the Mine Safety and Health Administration)

Key Provisions of the OSH Act

Creation of OSHA

The Act established the Occupational Safety and Health Administration (OSHA) within the Department of Labor. OSHA was granted authority to:

• Promulgate workplace safety and health standards
• Conduct workplace inspections and investigations
• Issue citations and propose penalties for noncompliance
• Require employers to keep records of workplace injuries and illnesses
• Provide education, training, and compliance assistance

In the construction industry, OSHA has specific authority to develop construction-specific standards (now codified in 29 CFR 1926) that address the unique hazards of construction work environments.

The General Duty Clause

Perhaps the most significant provision of the Act is Section 5(a)(1), commonly known as the "General Duty Clause." This clause requires that each employer:

"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."

The General Duty Clause serves as a catch-all provision that allows OSHA to cite employers for hazardous conditions even when no specific standard addresses that hazard. For construction supervisors, this means responsibility extends beyond following specific OSHA standards—they must actively identify and address all recognized hazards, even if not explicitly covered in the regulations.

For a violation of the General Duty Clause to be established, four elements must be present:

1. The employer failed to keep the workplace free of a hazard
2. The hazard was recognized (by the industry or the employer)
3. The hazard was causing or likely to cause death or serious physical harm
4. There was a feasible and useful method to correct the hazard

State Plans

Section 18 of the OSH Act allows states to develop and operate their own occupational safety and health programs, known as "State Plans." To gain OSHA approval, State Plans must be "at least as effective as" federal OSHA in protecting workers and preventing work-related injuries, illnesses, and deaths.

Currently, 22 states and territories operate State Plans that cover both private sector and state/local government workers. Six additional states and territories operate plans that cover only state and local government workers.

Construction supervisors must be aware of whether their projects fall under federal OSHA jurisdiction or a State Plan, as there may be additional or different requirements. For instance, California's State Plan has numerous requirements that exceed federal OSHA standards.

Creation of NIOSH

The Act established the National Institute for Occupational Safety and Health (NIOSH) within what is now the Centers for Disease Control and Prevention. Unlike OSHA, which is a regulatory agency, NIOSH is a research agency charged with:

• Conducting research on workplace hazards and worker safety and health
• Making recommendations for new occupational safety and health standards
• Providing education and training in occupational safety and health

NIOSH research often influences OSHA standards development, including many construction-specific standards and guidelines. Construction supervisors should be familiar with relevant NIOSH publications, which often contain practical solutions to workplace hazards.

Multi-Employer Worksite Doctrine

While not explicitly stated in the Act itself, OSHA's interpretation of the Act has led to the development of the "multi-employer worksite doctrine," which is particularly relevant to construction. This doctrine recognizes that multiple employers often work simultaneously at construction sites, and assigns varying degrees of responsibility to different employers based on their roles.

Under this doctrine, OSHA classifies employers into four categories:

1. Creating Employer: The employer who created the hazardous condition
2. Exposing Employer: The employer whose employees are exposed to the hazard
3. Correcting Employer: The employer responsible for correcting the hazard
4. Controlling Employer: The employer with general supervisory authority over the worksite

Construction supervisors must understand that they may have responsibilities for hazards even if their employees did not create them or are not directly exposed to them, depending on their contractual authority and control over the worksite or specific hazards.

Employer and Employee Rights and Responsibilities

Employer Responsibilities

The OSH Act places the primary responsibility for providing a safe workplace on employers. Under the Act, construction employers must:

• Comply with all applicable OSHA standards
• Ensure workplaces are free from serious recognized hazards
• Be familiar with mandatory OSHA standards applicable to their workplaces
• Make copies of standards available to employees upon request
• Evaluate workplace conditions and minimize or eliminate potential hazards
• Provide required personal protective equipment at no cost to employees
• Provide safety training in a language workers can understand
• Keep records of work-related injuries and illnesses (if required based on company size)
• Post the OSHA poster in a prominent location
• Report to OSHA all work-related fatalities within 8 hours
• Report all work-related inpatient hospitalizations, amputations, or losses of an eye within 24 hours
• Not discriminate against workers who exercise their rights under the Act
• Post OSHA citations and abatement verification notices at or near the work area involved

Employee Rights

The Act provides workers with several important rights, including the right to:

• Receive information and training about hazards, methods to prevent harm, and the OSHA standards that apply to their workplace
• Review records of work-related injuries and illnesses
• Get copies of test results done to find hazards in the workplace
• Request an OSHA inspection if they believe there are serious hazards
• Use their rights under the law without retaliation or discrimination
• Be free from retaliation for exercising safety and health rights
• Have their name withheld from their employer when filing a complaint
• File a complaint with OSHA if they have been retaliated against

Employee Responsibilities

While the Act places primary responsibility on employers, employees also have duties under Section 5(b):

"Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct."

This means workers must:

• Follow the employer's safety and health rules and regulations
• Wear or use prescribed protective equipment
• Report hazardous conditions to the supervisor
• Report job-related injuries or illnesses
• Cooperate with OSHA compliance officers

Enforcement Mechanisms

Inspections

The Act grants OSHA the authority to enter and inspect workplaces during regular working hours. Inspections can be triggered by:

• Imminent danger situations
• Severe injuries and fatalities
• Worker complaints
• Referrals from other agencies or individuals
• Targeted inspections based on high-hazard industries or emphasis programs
• Follow-up inspections

During an inspection, OSHA compliance officers may:

• Present credentials to the employer
• Hold an opening conference
• Walk through the workplace to identify potential violations
• Interview employees privately
• Review records
• Hold a closing conference

Citations and Penalties

If violations are found during an inspection, OSHA may issue citations and propose penalties. The OSH Act establishes several types of violations:

1. De Minimis: Violations that have no direct or immediate relationship to safety or health. These don't result in citations or penalties.
2. Other-Than-Serious: Violations that have a direct relationship to job safety and health but probably would not cause death or serious physical harm.
3. Serious: Violations where there is substantial probability that death or serious physical harm could result, and the employer knew or should have known of the hazard.
4. Willful: Violations committed with intentional disregard for the law or plain indifference to employee safety and health.
5. Repeat: Violations of any standard, regulation, rule, or order where, upon reinspection, a substantially similar violation is found.
6. Failure to Abate: Prior violation that has not been corrected.

The Act provides for civil penalties for these violations, with amounts that are periodically adjusted for inflation. As of 2023, maximum penalties include:

• Serious, Other-Than-Serious, and Posting Requirements: $15,625 per violation
• Failure to Abate: $15,625 per day beyond abatement date
• Willful or Repeated: $156,259 per violation

Criminal penalties are also possible for willful violations resulting in an employee's death, for falsifying records, and for providing advance notice of inspections.

Appeals Process

Employers have the right to contest citations, penalties, and abatement dates. The appeals process includes:

1. Informal Conference: Employers can request an informal conference with the OSHA Area Director to discuss citations, penalties, abatement dates, or any other issues related to the inspection.
2. Notice of Contest: If the issues aren't resolved at the informal conference, employers have 15 working days from receipt of citations to file a written notice of contest.
3. OSHRC Review: Contested cases are forwarded to the Occupational Safety and Health Review Commission (OSHRC), an independent agency separate from OSHA, which assigns the case to an administrative law judge.
4. Administrative Hearing: The judge holds a hearing and issues a decision.
5. Commission Review: Either party may request review of the judge's decision by the full Commission.
6. Court of Appeals: Decisions of the Commission may be appealed to the U.S. Court of Appeals.

Construction supervisors should understand this process and know when to involve legal counsel in appealing citations or negotiating settlements.

Impact and Evolution of the OSH Act

The OSH Act has had a profound effect on workplace safety and health in America. Since its passage, workplace fatality rates have decreased by approximately 63%, and occupational injury and illness rates have declined by 67%, even as the workforce has more than doubled.

In the construction industry specifically, the impact has been significant. Common construction hazards such as unprotected trenches, inadequate fall protection, electrical hazards, and unsafe scaffolding have been addressed through comprehensive standards and enforcement.

Over time, the Act has been supplemented by additional legislation and significant regulatory developments:

• The 1990 Omnibus Budget Reconciliation Act increased OSHA penalties
• The 2000 Needlestick Safety and Prevention Act added requirements to protect workers from bloodborne pathogens
• The 2002 Sarbanes-Oxley Act enhanced whistleblower protections

OSHA standards themselves have evolved significantly, with construction-specific standards becoming more comprehensive and technical. Major updates have addressed hazards such as:

• Fall protection (revised in 1994)
• Scaffolding (revised in 1996)
• Steel erection (revised in 2001)
• Cranes and derricks (revised in 2010)
• Confined spaces in construction (added in 2015)
• Silica exposure (revised in 2016)

Compliance Strategies for Construction Supervisors

For construction supervisors, effective compliance with the OSH Act requires a proactive approach:

1. Know the Standards: Become familiar with construction-specific standards in 29 CFR 1926, particularly those related to your specific operations.
2. Develop Written Programs: Create comprehensive safety programs that address site-specific hazards and OSHA requirements.
3. Train Workers Thoroughly: Ensure all workers receive training on applicable standards, hazard recognition, and safe work practices.
4. Document Everything: Maintain thorough records of training, inspections, incident investigations, and hazard corrections.
5. Conduct Regular Inspections: Implement a systematic approach to workplace inspections to identify and correct hazards before they cause injuries or attract OSHA citations.
6. Establish Clear Communication: Create open channels for workers to report hazards without fear of retaliation.
7. Prepare for OSHA Inspections: Develop procedures for responding to OSHA inspections, including designating management representatives and collecting necessary documentation.
8. Stay Current: Monitor OSHA updates, new standards, and enforcement emphasis programs relevant to construction.

By understanding the OSH Act's requirements and implementing thorough compliance programs, construction supervisors can not only avoid citations and penalties but also protect their workers from injury and illness, reduce costs, and improve productivity.