Firefighter Safety— Steps in a Legal Direction
LAWS AND LEGISLATION
The law in some states provides firefighters with a legal right to a safe work environment and to information regarding substances found in these environments. However, it is important to realize that the forces interested in controlling the cost of safety never rest, and these rights to safety can be threatened. This article is intended to motivate firefighters and other public workers to protect their rights as citizens. What happens in one state can happen anywhere.
Two laws that have been enacted in New York state within the last three years for the benefit of all workers, and especially for firefighters, have recently been the subject of actions that could have a negative influence on safety for public workers.
The Public Employees Health and Safety Law and Article 48, Toxic Substances, of the Public Health Law have the potential to bring about meaningful changes into work places throughout the state. These laws also can serve as models for other states that are interested in protecting their public workers but that have not as yet developed the necessary safety legislation.
The Public Employees Health and Safety Law has become known as DOSH (Division of Occupational Safety and Health) and the Toxic Substances Law has become known as the Right to Know Law.
DOSH
In December 1970, President Richard M. Nixon signed the Williams-Steiger Occupational Safety and Health Act into law. It went into effect on April 28, 1971. The Occupational Safety and Health Administration (OSHA) was born, and so was the granddaddy of DOSH.
OSHA received a mandate to bring safe work places to private industry. Safe work places were always required under common law but never realized. All the states were given the choice of maintaining sole sovereignty over their private industry work places or yield their control to federal OSHA. To maintain sovereignty, a state was required to produce an occupational safety effort equal to, or superior to, that provided under OSHA standards. All but a few states decided to allow federal inspectors to administer federal safety standards in private work places.
As the years went by, OSHA developed a large body of general industry standards based upon the needs dictated by new technologies and substances in our nation’s work places. Because OSHA’s jurisdiction applied only to the private sector, a growing gap developed between the attention received by workers in private industry and that received by public employees. There are many off-shoots of such a situation. For one, equipment manufacturers may consider not providing all the safety features on products designed for firefighters that a similar type of product destined to become part of a private industry work place will be equipped with. Another example is the noise and air contamination that may exist in a fire station. In many cases, such contamination levels would not be acceptable under federal OSHA, but they are in those states that do not have laws comparable to DOSH.
In New York state, the protection gap between public and private industry work places was closed when legislators enacted into law the Public Employees Safety and Health Act. This empowered the industrial commissioner of labor to, by rule, adopt all safety and health standards promulgated under the United States Occupational Safety and Health Act of 1970 which were in effect on December 29,1980. There is an underlying pre-supposed agreement that the state will continue to accept OSHA standards as they are developed when no such standard of equal quality exists in state law and to develop state standards that are equal or superior to those of OSHA. This, in effect, places the public workers of the state, firefighters included, under the same umbrella of safety protection that their private counterparts in industry have been receiving. If your state has not taken this kind of action, then perhaps it is time to consider where this leaves you as far as getting the same attention afforded private industry.
Key provisions of DOSH. Looking at the key provisions of DOSH can be helpful in getting a better grasp of the law for those who are directly under its jurisdiction and helpful to those who may seek to develop a similar type of law. Important sections of the law:
• Section 1. The scope of the law’s jurisdiction as it applies to employers is outlined in this section. An employer is defined as the state, any political subdivision, a public authority, or any governmental agency. Care should be taken by those who will develop similar laws because this section does not clearly include volunteer firefighters, since they are not employees of the state; however, they are included in New York by circuitous methods.
The concept of “Authorized Employee Representative,” is also established in this section. This is important because it allows an employee, such as a firefighter, to have his union or another employee represent him in his initiation of an action against his employer and also in the processing of future interactions with his employer and with the state. It allows a worker, who perhaps is timid, to assert and protect himself.
• Section 3. The purpose of the law is stated in this section. The purpose is the same as the first requirement of an employer under common law that has existed for hundreds of years in the United States and in England. The need to enact a law to ensure the health and safety of workers is indicative of the lack of real interest in the welfare of workers on the part of their employers. The section reads: “Every employer shall furnish to each of its employees, employment and a place of employment which is free from recognized hazards that are causing, or are likely to cause, death or serious harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees.”
It is important to realize that this statement includes not only the physical environment but everything that is in that environment including the tools, air, equipment, and stress-producing elements such as pressure, noise, heat, and toxic substances, to name a few. The equipment that a firefighter uses and the other area of employment that the firefighter occupies, the fireground, will all have to be fed into the computer for reevaluation once the equivalent of OSHA comes into the firefighter’s area of employment.
• Section 5. This section is very necessary in any law of this nature, if the law is to be effective. Under this section, firefighters and other public employees are invited to participate in making the law work by starting an action whenever there is a reason for such an action. If they do not, then, in all likelihood, their employers will not move to correct a situation that has existed for years. For example, in the last year or so, fire stations in New’ York City have been receiving ventilation equipment to deal with fumes. This helps make the fire station environment a healthier place to be in.
But other areas of concern must also receive attention. Noise is one, and until a firefighter does something about it, firefighters may continue to suffer abnormal loss of their hearing ability.
• Section 7. Injunction proceedings are outlined in this section. This section gives power to the labor commissioner to actually petition the state’s supreme court to close buildings and stop operations that are of an imminently hazardous nature. An imminently hazardous condition is one that could produce death or serious physical harm immediately or before such a danger can be eliminated through abatement procedures.
An interesting concept is introduced in this section. It deals with providing a safeguard against a failure of a state inspector to act in the face of an imminent hazard. A firefighter or his authorized representative can petition the state’s supreme court if the industrial commissioner’s inspector doesn’t petition the court within 48 hours after being notified of an imminent hazard.
• Section 10. If an employer discriminates against a firefighter or any other public worker because he exercised his rights under the public employees health and safety law, the state’s attorney general will petition the state’s supreme court to move against that employer. An employee and the union should be aware of this aspect of the law because it provides protection against any kind of unfair treatment. It can prevent sanctions against firefighters, for example, during the promotion process.
Cybernetics control. Any law designed to provide safety for its workers, if it is to be worth its salt, must be able to address current as well as future needs, and it should be able to adjust to its environment on a basis that is practically automatic. That means the law should be able to take worthy standards developed outside of its realm of authority, develop standards of its own, perform research, educate, police, provide avenues of address for those who seek appeal, require record keeping, protect those who would use the law, provide penalties for those who ignore the law, and have the right to initiate investigations to obtain data for input into the system as well as to determine if violations exist.
DOSH, created to help the commissioner of labor of New York state implement the public employees health and safety law, does approach a cybernetic status. It also represents a very real and responsible effort to protect a very valuable asset of the state, its public workers. Any other state that has already provided a plan equal to the public employees health and safety law deserves the cooperation as well as a vote of appreciation from all of its public workers.
Recent development. It is well to remember that for nearly three hundred years since the development of industrialized work places, employers have been expected to provide a safe work place. As mentioned previously, providing safe work places was, and still is, a requirement under common law. The enactment of OSHA made safe work places a form of statutory law, backed by the full weight of the federal government. However, OSHA, in general, applies only to the private sector worker, and OSHA has had a constant battle against special interest lobby groups to remain effective.
DOSH, created by New York state legislators out of concern for the state’s public workers, may now be experiencing a similar special interest battle. In November 1983, a small article appeared in a civil service newspaper saying that the state Court of Appeals had upheld a lower court decision stating that the state labor commissioner had violated a section of the New York State Constitution when she adopted the OSHA regulations. Action against this decision was brought by a coalition of public employers, and at present DOSH is in a state of limbo. It would appear that the coalition is concerned about the standards and their applicability to the public sector.
Many of the state’s public workers, including its firefighters, are unaware of this legal development. Hopefully, their step forward in safety legislation will not be taken away nor watered down to a point of ineffectiveness.
The Right to Know Law
Anyone who reads the daily newspaper has become familiar with such items as dioxin. Recently, Governor Thomas H. Kean of New Jersey asked citizens not to eat fish from the Passaic River because the river contains polychlorinated biphenyls (PCBs), dioxin and other toxic substances.
Governor Kean also stated that heavy contamination of dioxin was found in a scrap metal yard near a very heavily traveled road. It can be assumed that the workers in the metal yard knew very little or were extremely ignorant of the hazard that they were exposed to. However, in the state of New Jersey as well as in approximately eighteen other states, workers have the right to get information and to learn about substances that are in their work places because these states have the Toxic Substances Right to Know Law.
Dioxin and other toxic substances are a possibility in every place of employment, including that of firefighters.
Article 48, Toxic Substances. On June 26,1980, an act to amend the public health and labor laws of the state of New York was passed by the state’s legislative branch and became Article 48 of the department of health law. This law applies to employers in both private and public sectors. The volunteer firefighter, although not an employee of the public sector as is the paid firefighter, is covered under the Right to Know Law, but by implication rather than by a stated part of the law. Coverage by implication should be avoided when developing similar laws in other states.
The Right to Know Law was felt to be necessary because New York state was not satisfied with the progress being made by OSHA in the development of a federal right to know law. It was desired to get the law on the books and have it operating as soon as possible rather than wait for OSH A. Although in effect nearly four years, not too many people in the state, especially firefighters, know about the Right to Know Law.
What the law is really about. The Right to Know Law has one primary purpose, to let a firefighter or any other worker know what he is being subjected to in his work place. The law states: “It is hereby found and declared that there exists a danger to the health of employees and their families throughout the state because of hazardous exposure to toxic substances encountered during the course and scope of employment. Sometimes the tragic results of this exposure may not be realized for years or even for generations. Because of this, it is consistent to impose upon employers a duty to give such employee notice as to the known and suspected health hazards involved in their employment and place of employment which may cause death or serious physical harm to the employee or members of the employee’s family.
“It is further found and declared that the employees themselves are frequently in the best position to be aware of the symptoms of toxicity, provided that the employees are aware of the nature of the substances that they are working with and that, at a minimum, employees have an inherent right to know about the suspected health hazards which may result from working with toxic substances so that they may make more knowledgeable and reasoned decisions with respect to the continued personal costs of their employment and the need for corrective action. It is further found and declared that the work place often provides an early warning mechanism for the rest of the environment. Therefore, the legislature intends by this act to ensure that employees be given information concerning the nature of the toxic substances with which they are working and full information concerning the known and suspected health hazards of such toxic substances.”
“Sometimes, the tragic results of exposure may not be realized for years_ Therefore, employers have a duty to give employees notice of all known and suspected health hazards involved in their employment-“
How the law can be applied to firefighters. At this point you, as a firefighter, may be asking how this law applies to you. Well, if you are a paid firefighter in a state with a Right to Know Law, you have a right to get certain information. For example, in New York state both a paid and a volunteer firefighter can ask a superior to give them information on a substance in their work place that they suspect as being toxic. In both cases, the agency has to supply them with the information within 72 hours. If the information is not supplied, they do not have to work with that substance, and they can’t be penalized. If they are discriminated against, the state’s attorney general will defend them and, if necessary, petition the state’s supreme court in their behalf. Theoretically, that is the way it should work for a firefighter. There is a further question concerning the work place of a firefighter—the fireground. This is one of the firefighter’s work places that is expected to be studied. Just imagine the toxic substances generated there.
What kind of information is the employee entitled to know? The worker/firefighter has a right to get the following information from his employer/departmental agency head:
- The name of the substance, including the generic or chemical term,
- The trade name of the chemical,
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- The level at which exposure to the substance is hazardous, if known,
- The effects of exposures at hazardous levels,
- The symptoms of such effects,
- The potential for flammability, explosion and reactivity of the substance,
- Appropriate emergency treatment,
- Proper conditions for safe use and exposure to the substance,
- Procedures for cleanup of leaks and spills.
If a firefighter wanted such information, it would probably be related to a non-firefighting situation. However, the health department is considering methods to look at general health hazards associated with a particular occupation. Such information would be useful to a firefighter in assessing the potential for incurring an acute or chronic toxic exposure that could damage his health.
Is this law important? When you stop to think that there are 39,000 toxic substances on the National Institute of Safety and Health’s (NIOSH) registry of toxic chemicals and the list should be much larger, the answer to the question must be YES.
Firefighters can easily be exposed to these substances. It is important to know about them, and it is important to have a law that gives a right to have information provided when requested. In today’s work place, extremely dangerous substances can be present. A listing of these materials can be found in the OSHA general industry standards. New York’s Right to Know Law has considered these materials and consequently requires employers to keep records of the names and addresses of workers who handle or use extremely dangerous substances. The records must be made available upon request to the worker, his doctor, his representative, or to the state health department. These records must be kept 40 years, and if the firm ceases to operate in New York state, the records are sent to the health department.
What about the firefighter’s exposure to these substances? Who will keep the records? How will the information be obtained? Will the firefighter even be aware of being exposed? These are very real possibilities and concerns. It is time for firefighters to think about their safety, and become more familiar with the Right to Know Law.
You may ask why all the fuss over two laws that are approximately three years old. The answer is related to the fact that they are still largely unknown by firefighters.
The laws are a great step towards providing public workers with a greater measure of safety. They should be valued, and it should be realized that unless protected, these laws may gradually disappear. Both laws enable a worker to initiate a complaint or a request. If a firefighter is not aware of his rights, then nothing can be done.
In three years, not much has been done by the state to inform its workers of their rights. The action by a coalition of state employers concerning DOSH was mentioned, and now OSHA plans to place its Right to Know Law in effect sometime this year. A reason for this action, after many years of delay, has been laid to the fact that too many states are enacting their own laws, causing concern to manufacturers of chemicals who may have to satisfy many different requirements to do business in various states. The federal right to know law may have the effect of watering down state laws to meet weaker federal requirements aimed at protecting trade secrects.
In New York state, legislators have placed two very good safety laws on the books. In other states, firefighters may have to see to it that similar legislation is enacted. This article was written in the hope that an interest in such a venture can be kindled, and once kindled, will burn to a point where legislation enacted will be protected from those who want to extinguish it.
