4.10 OCCUPATIONAL SAFETY AND HEALTH ACTS, FEDERAL AND STATE (OSHA)
4.1001 In General.
The federal Occupational Safety and Health Act (the Act) was passed in 1970. 2294 Its purpose is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." 2295 The Occupational Safety and Health Administration (OSHA or the Agency), which enforces the Act, is part of the United States Department of Labor. 2296
4.1002 State Enforcement.
The Act allows states to adopt their own programs to administer safety and health regulations. 2297 Since 1988, 2298 the Virginia Occupational Safety and Health Division (VOSH) of the Department of Labor and Industry (DOLI) has enforced occupational safety and health laws. 2299 The Virginia Occupational Safety and Health Codes Board adopted verbatim virtually all of the federal standards, but Virginia has also enacted several additional safety and health standards.
4.1003 Employer Coverage.
The Virginia Occupational Safety and Health Act has a broad sweep, reaching all employers 2300 engaged in any business that has any employees. 2301
4.1004 Employers' Primary Obligations.
The occupational safety and health laws impose two primary duties on employers. First, employers must comply with the substantive safety and health regulations, which cover approximately 3,760 pages in the Code of Federal Regulations. These regulations are divided into general industry standards and construction industry standards. Employers must also comply with a "catchall" provision known as the "general duty clause," which requires employers to provide a place of employment that is "free from recognized hazards that are causing or are likely to cause death or serious physical harm." 2302
4.1005 Other Rights, Responsibilities, and Duties.
A. Inspections.
1. Compliance.
Employers must submit to inspections conducted by VOSH compliance officers. During these inspections, VOSH is free "to inspect, investigate, and take samples during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner." 2303 Pursuant to legislation enacted in 2015, a workplace may be exempt from inspections and investigations under section 40.1-49.4 of the Virginia Code during periods in which it is a participant in the Voluntary Protection Program established by the Virginia Safety and Health Codes Board. 2304
2. Trade Secrets.
If an inspector seeks to examine areas where trade secrets or other confidential information are located, the employer may petition the circuit court having jurisdiction over the employer to prevent the public disclosure of that information. 2305
3. Evidence Procured During Inspections.
Employers may request copies of photographs, video recordings, or environmental samples taken during an inspection, but VOSH is not obligated to furnish this information unless a proper discovery request is made after litigation begins.
B. Record-Keeping.
The federal DOL's record-keeping rule requires employers to record occupational injuries and illnesses on OSHA Form 300. Forms 301 (an injury and illness incident report) and 300A (a summary of work-related injuries and illnesses used to calculate incidence rates) are also required. 2306
Employers with ten or fewer employees are exempt from most record-keeping requirements. 2307 Low hazard employers, such as retail, service, finance, insurance, and real estate sectors, are also exempt. 2308
The rule defines "medical treatment," "first aid," "restricted work" or "light duty," and when a preexisting injury or illness becomes recordable. It also uses "calendar days" as opposed to "work days" and eliminates the term "lost work days." Employers must report needlestick and sharps injuries, in accordance with the Needlestick Safety and Prevention Act, 2309 which required OSHA to revise its bloodborne pathogens standard to address those injuries. 2310
An injury or illness is "recordable" if it results in a fatality, one or more days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or diagnosis of a significant injury or illness by a physician or other licensed health care professional. 2311
The rule promotes employee involvement in the reporting process by requiring employers to establish a procedure for employees to report injuries and illnesses and by requiring employers to inform each employee of how an illness or injury can be reported. 2312 Employee representatives have access to those parts of OSHA Form 301 relating to the employees they represent. The rule differentiates between "authorized employee representatives" under a collective bargaining agreement and "personal representatives" of an employee or former employee, authorized by the employee to act for him or her.
The rule also addresses privacy concerns of employees with protection provisions covering the log itself. 2313 For example, employers are prohibited from entering an individual's name on Form 300 for certain types of injuries or illnesses, including sexual assaults, HIV infections, and mental illnesses. Similarly, employers are given the right not to describe the nature of sensitive injuries when they would reveal the employee's identity. Further, the rule limits the right of employee representatives to be given the Form 301 Incident Report. 2314
The OSHA Form 300 log must be summarized annually for each location, 2315 and once the summary is completed, it must be posted from February 1 to April 30 in a conspicuous location. 2316
Recordkeeping requirements include (i) recording criteria for cases involving occupational hearing loss; (ii) the definition of musculoskeletal disorder (MSD) and the requirement to check the OSHA log if an employee experiences a work-related MSD; and (iii) the former regulation stating that MSDs are not considered privacy concern cases. Employers must still keep records on work-related hearing loss under the old rules.
The reporting rule requires employers in certain industries to electronically submit to OSHA injury and illness data that employers are already required to keep under existing OSHA regulations. The frequency and content of these establishment-specific submissions are set out in the rule and are dependent on the size and industry of the employer. OSHA posts the data from these submissions on a publicly accessible website, but not any information that could be used to identify individual employees.
OSHA's recordkeeping regulations contain requirements on how employers inform employees to report work-related injuries and illnesses to their employer. The rules require employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; clarify the existing implicit requirement that an employer's procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporate the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. The rules also amend OSHA's existing recordkeeping regulation to clarify the rights of employees and their representatives to access these injury and illness records. 2317
C. Duty to Report Serious Accidents.
Within eight hours, employers must report to VOSH all work-related incidents resulting in a fatality or within 24 hours any work-related incident resulting in (i) the inpatient hospitalization of one or more persons, (ii) an amputation, or (iii) the loss of an eye. 2318
D. Posting Requirements.
Virginia employers must post notices informing employees of their rights and responsibilities under the Virginia Occupational and Safety Health Act. 2319
E. Hazard Communication.
VOSH requires employers to provide information to their employees about their exposure to toxic materials or other harmful physical agents in the workplace. 2320
4.1006 Elements of an OSHA Violation.
There is very little Virginia law about VOSH's proof requirements and the defenses available to employers in these cases. However, there is an established body of federal law, and Virginia courts are likely to follow those cases.
To prove a violation of a specific safety or health standard, the government must show that: (i) the cited standard applies to the employer; (ii) the employer failed to comply with the standard; (iii) the employer's employees had access to the hazard; and (iv) the employer knew, or should have known with the exercise of reasonable diligence, of the violative condition. 2321 Employers can avoid liability if the government fails to establish all of these elements. 2322 Contrary to federal precedent, the Virginia Court of Appeals has ruled that the burden of establishing an affirmative defense, such as employee misconduct, rests on the employer and not on the Commissioner of Labor and Industry. 2323
In Department of Professional & Occupational Regulation v. Abateco Services, 2324 the Virginia Court of Appeals ruled in a divided panel decision that an employer's good faith belief is irrelevant to the question of whether a "willful" violation occurred. This panel decision was adopted by the full court on rehearing en banc. 2325 This case is a continuation of the earlier decision in Abateco Services v. Bell, 2326 which affirmed four willful violations of a contractual obligation to permit inspection of certain records relating to training and exposure on an asbestos project.
OSHA regulations are divided generally into construction safety standards and general industry standards. An employer needs to know which standards cover it before it can determine whether VOSH has issued a citation under the applicable regulations. 2327
As a general rule, VOSH must also prove that the employer had employees who were exposed to the violative condition. Exposure is shown by employee "access" to a...
