A Worker’s Guide To OR-OSHA

Part of utilizing the Oregon-Occupational Safety and Health Administration (OR-OSHA) properly is being able to understand the system.

Last December, the Labor Education and Research Center of the University of Oregon — through its Oregon Labor Safety & Health Education Program — published a comprehensive guide (in both English and Spanish) for workers to follow. This article shares some of that information, but also includes statistics and charts from the national AFL-CIO report, “Death on the Job: The Toll of Neglect,” and from the Oregon Fatality Assessment and Control Evaluation (FACE) 2003 annual report, which is the most recent data available. Statistics cited in the AFL-CIO report are for fiscal year 2004-05, the most recent data available. FACE is a division of the Center for Research on Occupational and Environmental Toxicology (CROET) at Oregon Health and Science University.

In general, if you work in the private or public sector in Oregon, you are covered by OR-OSHA under the Oregon Safe Employment Act enacted by the Legislature in 1973.

Exceptions are federal and postal employees, employees working on Indian reservations, and those workers in maritime and fishing industries. These workers fall under the jurisdiction of federal OSHA, which Congress enacted in 1970. Self-employed persons are not covered by OSHA, and mine workers are covered under the Mine Safety and Health Act.

State OSHA plans must provide standards and enforcement programs that are “at least as effective” as the federal OSHA program.

Nationally, the federal OSHA law still doesn’t cover 8.5 million state and local government employees in 26 states and the District of Columbia.

Under the OSH Act, all workers have the right to a safe workplace free from recognized hazards. This is known as the “General Duty Clause.” Before 1970, American workers did not have this right.

The OSH Act gives workers the right to participate in accident and illness prevention. “There are legal, moral and common-sense reasons for workers to be involved in their employers’ safety and health programs,” writes Braxton Chambers, author of the LERC report. “It is workers who are exposed to the hazards in their jobs and who know the day-to-day operation of their job better than anyone.”

Legally, OR-OSHA encourages participation in some ways, and requires it in others. For instance, OR-OSHA requires a safety committee composed of equal numbers of employee and employer representatives in all workplaces of 11 or more, and in smaller workplaces with injury rates in the top 10 percent for that industry.

If matters are not resolved at the workplace, OR-OSHA provides legal avenues and procedures by which employees can call in compliance officers to assess the hazard and determine if a violation of standards has occurred.

In Oregon, 63,000 workers were injured in 2004 and 69 workers were killed. Washington recorded 122,200 injuries and 98 work-related deaths.

Worker input on job safety is vital, because on its own, there simply aren’t enough OSHA inspectors to ensure safe working conditions. The AFL-CIO report estimates that in 2005 there were, at most, 2,138 federal and state OSHA inspectors to enforce the laws in 8 million places of work.

In Oregon it would take 18 years for OR-OSHA’s 83 compliance officers (28 years in Washington) to visit every workplace in the state just once. While those numbers seem incredibly high, it would take OSHA (both state and federal ) 88 years to inspect every workplace in its jurisdiction. In 19 states it would take federal OSHA between 100 and 149 years to visit each workplace, and in three states — Florida, Louisiana and Georgia — it would take more than 150 years.

Experts say the key to making OSHA more effective is doing as much as possible yourself before getting them involved.

The LERC guide says when a worker feels conditions are unsafe or unhealthful, it is their responsibility to call the employer’s attention to the problem. “If your employer does not correct the hazard or disagrees with you about the extent of the hazard, you may file a complaint with OR-OSHA.”

Workers don’t have the right to walk off the job because of unsafe conditions. “If you do and your employer fires or disciplines you, OR-OSHA may not be able to protect you. So, stay on the job until the problem can be resolved,” the LERC guide says.

Employees, however, do have the right to refuse to do a job if they believe in good faith that they are exposed to an imminent danger. “Good faith” means that even if an imminent danger is not found to exist, the worker had reasonable grounds to believe that it did exist.

Some union contracts contain “imminent danger” clauses that spell out how such situations will be handled, so call your steward immediately if there is a problem.

It is illegal for an employer to fire or harass an employee who expresses concern about a safe work environment. If you believe that you have suffered discrimination for health and safety activity, you can contact the Civil Rights Division of the Oregon Bureau of Labor and Industries. These complaints are handled in a similar way to allegations of sex, race, disability and injured worker discrimination.

Federal OSHA also has an office in Seattle to handle these complaints if for some reason an Oregon worker doesn’t want it done at the state level. With federal OSHA these are known as “11(c)” complaints because of the paragraph in the OSH Act in which this protection is found.

LERC warns, however, that while protections do exist for workers, experience has shown that workers have a very difficult time winning such claims. Workers who work under a collective bargaining agreement should always consider the union grievance procedure as an alternative or concurrent process.

The LERC guide says documentation is critical when reporting an unsafe work condition.

“Documentation does not have to be anything more than a diary or any notes that you keep where you write down what actions you have taken to try to get the problem fixed,” the LERC guide suggests.

Depending on the seriousness of the hazard, OR-OSHA will generally give the company or the safety committee representing that workplace the opportunity to abate or fix the hazard on their own.

In fiscal year 2004, Oregon had the lowest average penalty for a serious violation at $306, while Washington ranked 48th with an average penalty of $423. Nationally, the average penalty was $873. A violation is considered “serious” if it poses a substantial probability of death or serious physical harm to workers.

Killing a worker is considered a misdemeanor under the OSH Act, with a maximum sentence of six months in jail. Even for willful violations, fines typically are less than $25,000. A December 2003 series by the New York Times found that of the 170,000 workplace deaths since 1982, only 16 resulted in convictions involving jail time — although 1,242 cases were determined by OSHA to involve “willful” violations by employers (violations in which the employer knew that workers’ lives were at risk).

The Times article revealed that “companies whose willful acts kill workers face lighter sanctions than those who deliberately break environmental or financial laws.”

Deaths involving transportation, especially crashes, continued to be the top cause for job-related deaths, accounting for over 40 percent of all workplace fatalities in Oregon in 2003, according the the FACE annual report.

The logging industry continues to be the most dangerous occupation in the state, with 11 deaths recorded in 2003. Five of those fatalities involved fallers.

Friday was the deadliest day of the week for Oregon’s workforce, according to the FACE findings. The deadliest work hours were between 11 a.m. and 3 p.m. (See charts below.)

According to Liberty Mutual, the nation’s largest workers’ compensation insurance company, the direct cost of occupational injury and illness is $1 billion per week. The annual cost of these injuries is between $198.4 and $297.6 billion in direct and indirect costs.

The full LERC report, “A Worker’s Guide to OR-OSHA” can be found on line at:www.uoregon.edu/~lerc. The complete FACE report can be found online at:www.ohsu.edu/croet/face. OR-OSHA’s toll-free phone number is: 1-800-922-2689.

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