YOUR RIGHTS UNDER THE OCCUPATIONAL SAFETY AND HEALTH ACT
When President Richard Nixon signed Public Law No. 91-596 in 1970, he declared it one of the most important pieces of legislation ever enacted. Congress said that the purpose of the Occupational Safety and Health Act was to “…assure so far as possible every working man and woman in the nation safe and health-ful working conditions to preserve our human resources.” The law established the Occupational Safety and Health Administration (OSHA) within the Department of Labor and was the first national accident prevention legislation in the United States.
One of the last groups of employees to benefit from the requirements of this occupational safety law is firefighters. Not only have firefighters been slow to receive the improved working environment, but they also have been slow to recognize the rights given to them by the legislation.
The law establishes the responsibilities of OSHA and the duties and rights of employers and employees. The spirit of the act is for employers (fire departments) and employees (volunteer and career firefighters) to establish a cooperative effort to recognize hazards, implement engineering controls, provide and use safety equipment, incorporate safety in training, and enforce regulations.
The act is a minimum occupational safety standard that all states must meet. Twenty-three states, the Virgin Islands, and Puerto Rico have final or initial approval for state-administered programs. New York has a state plan for state and local government employees only. All other states have a federally administered program.
EMPLOYEE DUTIES
Employers are required to comply with the general duty clause of the act, an all-encompassing general standard that requires employers to provide a workplace free from recognized hazards that are likely to cause death or serious physical harm to employees. Employees have to comply with the safety and health standards and all departmental rules, regulations, and orders applicable to their jobs.
Fire departments that OSHA cites for violations of specific standards or the general duty clause may be fined or face civil (and criminal) penalties. If cited, one of the best defenses for a fire department is that it fulfilled its responsibilities under the act but the firefightcr(s) did not. The key to this defense is documentation of written departmental SOPs, training records, and records of disciplinary actions taken to correct violations.
Employees cannot be cited under the act. However, they can—and should—be directed by the chief and the department staff to comply with safety standards, be trained to comply, and be disciplined when they violate standards. Firefighters must recognize that the standards are for their protection; thus they should make every effort to comply.
EMPLOYEE RIGHTS
Employees can request that OSHA adopt a new standard or revoke an existing one. Much remains to be learned about the work environment of the firefighter outside of the fire station. The never-ending evolutions of protective clothing and self-contained breathing apparatus bear witness to this fact. Firefighters who feel that a change in an existing standard will make their jobs safer should not hesitate to contact their local OSHA compliance office.
When proposed standards are published, firefighters may submit written data or comments on them, including objections. They also can appeal a final decision in court. (The International Association of Fire Chiefs and the International Association of Fire Fighters are very active in monitoring safety regulations, such as the proposed communicable disease standard, to represent the best interest of all firefighters.)
To participate in this right to comment, firefighters must know about proposed standards. Fire service trade publications frequently publish legislative updates that highlight standards affecting the fire service. There are many other pending standards (such as lockout/tagout requirements) that may appear to apply only to general industry but in fact also impact the fire service.
An employer has the right to apply for a variance from a standard either before or after a citation. Any time a fire department files an application for a variance it must notify its members in writing, usually by posting a copy of the request for variance on the bulletin board. The variance must equal or exceed what the standard requires. Once notified, firefighters have the right to participate in the variance hearing and to appeal the final decision. They should study the request carefully to make sure it does not compromise their safety.
As OSHA becomes more and more involved in the fire service, fire departments are going to be searching for cost-effective and efficient ways to provide a safe working environment on the fireground, at hazardous-materials incidents, and in the fire station.
THE RIGHT TO KNOW
First, employees have the right to access information about their rights under OSHA legislation. An OSHA poster must be prominently displayed in the workplace where notices to employees are customarily posted. This poster informs employees of their rights and responsibilities under the act.
Where firefighters may come in contact with chemicals in their work environment, they have a right to know about the precautions pertaining to the safe use of the chemicals.
Much has been written about SARA Title III as it relates to emergency response to hazardous-materials incidents. Fire departments also are required to comply with the hazard communication requirements of 29 CFR 1910 (the OSHA standard for general industry). Material safety data sheets of commonly used chemicals must be kept on file in each fire station. Firefighters should be trained in the hazards associated with cleaning fluids, diesel fuel, gasoline, leadbased paints, and so on.
Firefighters exposed to hazardous chemicals must be notified by the fire department and made eligible for free medical surveillance. Again, Title 111 addresses this for emergency responses, but exposure to chemicals in the fire station also must be included in the department’s overall safety program.
If an OSHA compliance officer inspects a fire department and determines that an imminent hazard exists, the affected firefighters are entitled to be notified of the hazard. According to OSHA, an imminent hazard is any condition where there is reasonable certainty that a danger exists that can be expected to cause death or serious physical harm immediately or before the danger can be eliminated through normal enforcement procedures. Also, they will be notified that immediate correction of the hazard is being sought, either voluntarily by the fire department management or by court order obtained by the compliance officer.
Firefighters (and all department employees) have a right to review their medical files. These files should include any history of exposure to toxic chemicals or harmful physical agents (such as communicable diseases). This right enables firefighters to help determine the cause of diseases and illnesses, which may be compensable under a state’s workers’ compensation regulations.
Some OSHA standards—ambient noise standards, for example —require monitoring or sampling to determine compliance. If the fire department establishes a monitoring program, firefighters are entitled to witness the tests. In this manner firefighters are assured that the tests arc conducted under realistic work conditions.
Firefighters have the right to information published by the National Institute of Occupational Safety and Health (NIOSFI), the research division of OSHA. NIOSH’s responsibilities include testing and certifying safety equipment (such as SCBA) as well as establishing permissible exposure limits to chemicals and other workplace hazards. Firefighters can request information from NIOSH on what materials are considered toxic, die effects of toxic or harmful physical agents, and studies regarding the effect of chronic low-level exposure to hazards. They also can ask NIOSH to determine if a particular substance used in the fire department is considered harmful.
Perhaps the most significant group of rights that firefighters should be aware of pertains to enforcement of OSHA standards. One important employee responsibility is to report hazardous working conditions to supervisors. If corrective action is not taken, firefighters may request an inspection of the department. Phis request must be in writing and must specify a hazard that threatens physical harm and is in violation of an OSHA standard. The person requesting the inspection may ask to remain anonymous. OSHA addresses these written complaints in order of importance either with an inspection or by writing the fire department, informing the department chief of the nature of the complaint and advising what corrective action to take.
Three events automatically will trigger an inspection: a job-related fatality or accident that results in the hospitalization of five or more firefighters for 24 hours, a recent history of reportable injuries in excess of the national or state average for the fire service, and an allegation of an imminent danger. Requesting an inspection is a powerful tool available to firefighters who feel that the fire department is not fulfilling its responsibility of providing a “place of employment free from recognized hazards.”
Fire department employees have .die right to confer with an OSHA compliance officer in connection with an inspection of the department. When the compliance officer actually makes the inspection, an authorized firefighter must be given the opportunity to come along. This so-called “walk-around” provision was strongly opposed by management when the original OSHA legislation was being written, because employee representatives might point out hazards and standards violations that the compliance officer would not discover otherwise. That is exactly why this provision was included in the final version of the law.
If OSHA denies a request for an inspection, the individual who requested it must be notified in writing that the inspection will not be made. If the firefighter disagrees, he may request a hearing by the Occupational Safety and Health Commission. Likewise, if an inspection is made and the compliance officer does not cite the department for the specified violation in the written complaint, OSHA must explain to the individual who filed the original allegation why no violation was found.
The fire department must post cited violation(s) at or near the location of the violation(s). This provision allows personnel to be aw are of the hazards to which they are being exposed so they can avoid them. Also, it informs firefighters about the nature of the required changes that will result from the citations.
Not all of these changes will be pleasant. Unfortunately, safety almost always has a price. Dollars that were earmarked for pay raises or an employee benefit may have to be diverted to cover the cost of OSHA-mandated improvements. Also, OSHA can levy fines up to S 10,000 per violation. Fines can be compounded if the compliance officer can substantiate that the fire department administration had prior knowledge of the violations and willfully violated the occupational safety and health law’. In 1989, 10 departments were issued proposed penalties of SI million or more.
If the fire department chooses to contest a citation, firefighters have the right to attend the hearing and to appear as witnesses. As witnesses, firefighters will be called by either the fire deparment, to help prove that it is complying with the standard, or by the compliance officer, to help prove otherwise.
Firefighters have the right to bring a civil action suit against OSHA for its arbitrary or capricious failure to seek correction of an imminent hazard. As with most any civil action, the firefighters bringing it must have suffered loss or injury as a direct result of OSHA’s alleged failure.
Every citation has an abatement period that allows the employer time to correct the deficiency. These time frames can range from immediate (imminent hazard) to months (nonserious violations). Firefighters can contest the abatement period to the review commission if they feel that the nature of the uncorrected danger allows an unreasonable safety hazard to exist.
Finally, the fire department cannot discriminate against an employee for asserting any of these rights. T he law allows a person ,A() days to file a complaint w ith OSHA. T he complaint will be investigated by OSHA, who wall bring action in I S district court to reimburse or reinstate an employee who was the victim of discrimination.
Walking off the job because of unsafe conditions is not an employee right. However, firefighters do have the right to refuse (in good faith) to do tasks that would expose them to imminent danger. For example, firefighters can refuse an order to enter a confined space prior to atmosphere testing or without proper respiratory protection. OSHA will protect them against discrimination charges if the fire department takes disciplinary action against them.
Occupational safety requires a comprehensive, cooperative effort on everyone’s part. A truly effective program includes active participation by firefighters and fire department management. NFFA 1500 requires the establishment of a safety committee for just this reason.
There are more than five million workplaces and approximately 2,500 OSHA compliance officers in this country. Your department may never be inspected. But the Occupational Safety and Health Act of 1970 is intended to protect employees from recognized hazards by adopting and enforcing standards established as law. If as a firefighter you have no other means of achieving safety, exercise your rights under the law.