All owners and operators should familiarize themselves with the Occupational Safety and Health Act of 1970 (OSH Act). The OSH Act was enacted to ensure that US workplaces are safe and free of harmful working conditions. At its core, the OSH Act requires employers to provide their employees with a workplace free from recognized hazards that cause or are likely to cause death or serious physical harm, and to comply with occupational safety and health standards issued under the OSH Act.
Importantly, the OSH Act also established the Occupational Safety and Health Administration (OSHA) to provide an effective enforcement program. OSHA sets mandatory occupational safety and health standards and conducts workplace inspections to ensure that employers comply with the standards and provide a safe and healthful workplace. It is the responsibility of all business owners/operators to become familiar with standards applicable to their establishments, to eliminate hazardous conditions to the extent possible, and to comply with the standards.
Even in areas where OSHA has not addressed a specific hazard, employers are responsible for complying with the OSH Act’s “general duty” clause, which states that each employer “shall furnish … a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees” (29 USC § 654 (5))
North Carolina and other states with OSHA-approved job safety and health programs must set standards that are at least as effective as the equivalent federal standard.
Employers’ Responsibilities Under the OSH Act
As employers covered by the OSH Act, owners/operators must provide their employees with jobs and a place of employment free from recognized hazards that cause, or are likely to cause, death or serious physical harm. They must comply with the OSHA statutory requirements, standards, and regulations that require them to do the following:
- Provide well-maintained tools and equipment, including appropriate personal protective equipment when necessary
- Provide medical examinations in certain circumstances
- Provide training required by OSHA standards
- Report to OSHA within eight hours accidents that result in fatalities
- Report to OSHA within eight hours accidents that result in the hospitalization of three or more employees
- Prominently post the OSHA poster informing employees of their rights and responsibilities
- Provide employees access to their medical and exposure records
- Do not discriminate against employees who exercise their rights under the OSH Act
- Post OSHA citations and abatement verification notices at or near the work site
- Eliminate hazards cited in the violation within the prescribed period
- Respond to survey requests for data from the Bureau of Labor Statistics, OSHA, or a designee of either agency
Hazard Communication in the Workplace
Additionally, operators need to pay particular attention to OSHA’s “Hazard Communication Standard.” This rule requires employers who have any potentially hazardous chemical in the workplace, like cleaning solvents and pesticides, to transmit information about these chemicals to employees through labels on containers, “safety data sheets” (manufacturer-provided data sheets), and training programs.
Employees have a right to know about the chemical hazards they may face in the workplace. Consequently, under the applicable federal standards, OSHA requires that employers:
- Ensure that all containers of hazardous materials are properly labeled, which includes identifying their contents, hazard warnings, and name and address of chemical manufacturer, importer, or other responsible party
- Train all employees in the handling of hazardous materials, identifying hazards, and protecting themselves from exposure
- Maintain a Safety Data Sheet (SDS) for each hazardous substance, readily available to employees, with the following information:
- Proper identification of the chemical or the ingredients of a mixture
- Physical and chemical characteristics
- Physical hazards, including signs and symptoms of exposure and medical conditions associated with exposure to the chemical
- Reactivity data
- Primary route(s) of exposure (e.g., skin contact, inhalation)
- The OSHA permissible exposure limit
- Precautions for safe handling and use
- First aid and control measures
- Date the SDS was prepared or revised
- Develop a written hazard communication program, readily available on request of employees, their representatives, OSHA, and National Institute for Occupational Safety and Health:
- List of hazardous chemicals known to be present in the workplace
- Methods used to inform employees of the hazards associated with the chemicals
- Methods used to inform independent contractors of the hazardous chemicals their employees may be exposed to while working on the employer’s premises
OSHA’s Bloodborne Pathogens Standard
In 1991, OSHA released its Bloodborne Pathogens Standard (BPS) to eliminate or minimize employee contact with potentially infectious materials such as blood or other body fluids. Although the regulation principally applies to health care workers, in 1993, OSHA advised the National Restaurant Association that foodservice establishments with designated employees responsible for rendering first aid or medical assistance as part of their job duties are also covered. If a business has chosen to designate an employee as responsible for rendering first aid, under BPS the employer must provide the following:
- Exposure plan. Employers must provide documented operating procedures to eliminate or minimize employees’ exposure to other’s blood or other potentially infectious materials. The plan should include employee awareness, training, appropriate personal protection equipment, procedures for cleanup and disposal of contaminated material, and incident reporting. Review the plan annually and update as necessary.
- Hepatitis B vaccination. Within 24 hours after an employee is exposed to potentially infectious materials, the employer must counsel the employee and offer to provide a free post-exposure vaccination against Hepatitis B. Although this is only required for designated first-aiders, you may wish to consider offering it to any exposed employee. The vaccination need not be offered before exposure because first aid is considered a “collateral duty” for foodservice employees.
- Medical evaluation. If employees have contact with blood or other potentially infectious materials, the employer must arrange for a confidential medical evaluation.
- Recordkeeping. The employer must maintain a record of each occupational exposure.
- Training. Designated first-aiders must receive training and information on first-aid techniques and certification; how to avoid or minimize exposure; handling and removal of gloves, clothing, bandages, and laundry; hand washing; and cleanup procedures.
OSHA’s Emergency Temporary Standard – on November 5, 2021, OSHA published the Emergency Temporary Standard (ETS) for COVID-19 vaccinations for employers with 100 or more employees company-wide. The 100+ employee threshold includes temporary, seasonal workers, minors, and part-time employees. The ETS is temporary and will be in effect for 6 months. After that, OSHA will determine if the ETS should become permanent, rescinded, and/or modified to some degree.
OSHA is not currently implementing or enforcing the ETS due to a court order and pending litigation. If it does to into effect, employers must (1) require that all employees get vaccinated and show proof of vaccination status (unless the employee qualifies for a medical or religious exemption) or (2) provide a weekly testing option for those employees who do not wish to be vaccinated and require those employees to be masked in the workplace. While the ETS is in legal limbo currently, businesses should be prepared if the ETS does go into effect. To learn more here.
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