Alesia J. Kantor, Kenneth W. Di Gia, Michael A. Kalish, Traycee E. Klein, Peter M. Panken, and A. Jonathan Trafimow, Editors
Epstein Becker & Green, P.C.

Vol. 15, No. 4
April 2008

OCCUPATIONAL SAFETY

O-ffices S-hould H-ave A-wareness: OSHA applies to you

Erin Carney D'Angelo

At a top-level management meeting of Unsafe Corporation, located in midtown Manhattan, the newest addition to the legal department, Eager Beaver, inquired into the company's efforts to ensure Occupational Safety and Health Act (OSH Act) compliance. Laughter was heard around the table, punctuated by the CEO chiding, "The OSH Act doesn't apply to us. Where did you get your law degree? The local convenience store?" The CFO added, "Do we look like a construction site or a manufacturing operation? We're in the business of making money. The only things we make around here besides money for ourselves are excuses and mounds of paperwork."

Eager Beaver skulked back to his office, vowing never again to raise the issue of safety and health at Unsafe Corporation. He assumed that management was right, and the OSH Act doesn't apply to office environments. But were the company's managers correct?

Don't be complacent

The answer is no. The OSH Act applies to all workplaces and requires all employers to provide their employees with employment conditions free from recognized hazards that are likely to cause death or serious physical harm. In addition to that "General Duty Clause," the Act authorizes the secretary of labor to promulgate specific safety and health standards. You're required to know which standards within your industry are applicable to your employees and workplaces.

The OSH Act is enforced by the Occupational Safety and Health Administration (OSHA). While an OSHA inspection of an office environment will almost always be triggered by an employee complaint (since offices are generally not included in programmed and targeted inspection schemes), employers in office settings are still required to comply with applicable OSH Act standards. In addition to the General Duty Clause requirement to provide a workplace free from recognized hazards, there are other safety and health standards that are applicable to office environments, including:

• Posting requirements. You are required to display in a conspicuous place a poster prepared by the U.S. Department of Labor informing employees of the OSH Act's protections.
• Prohibition against discrimination for exercising OSH Act rights. Under Section 11 (c) of the Act, employees have a right to seek safety and health in their jobs without fear of reprisal. In accordance with that section, you cannot punish or discriminate against employees for exercising their rights under the Act, including complaining to your company, OSHA, or any other government agency about job safety and health hazards or participating in OSHA inspections or other OSHA-related activities.
• Reporting of injuries, illnesses, and fatalities. Most employers are required to maintain at each establishment a log and summary of all work-related injuries and illnesses that meet recordkeeping requirements. Depending on their Standard Industrial Classification, certain low-hazard industries, such as retail, legal, advertising, engineering, computer services, financial, and real estate establishments, are exempt from the recordkeeping requirements. All employers, however, are required to report a workplace fatality or the inpatient hospitalization of three or more employees to the nearest OSHA Area Office within eight hours of the incident.
• Ergonomics. TheOSH Act doesn't have a specific regulation addressing ergonomics in the workplace. OSHA has issued citations for ergonomics violations under the General Duty Clause, however, generally in manufacturing environments and operations involving manual handling of materials. If employees in your company are complaining of or experiencing musculoskeletal problems, you may want to address any ergonomic stressors before your workers seek assistance from OSHA.
• Emergency action plan and exits. Although this requirement is generally cited in manufacturing environments, OSHA requires employers to develop an emergency action plan to ensure employees' safety in the event of a fire and other emergencies. In an office environment, having a process of reporting emergencies, identifying appropriate exit routes, and designating employees responsible for evacuation would be all that OSHA would likely expect. Moreover, the OSH Act requires that every building have exits sufficient to permit occupants' prompt escape in case of an emergency. Exits must be unobstructed, accessible at all times, and marked by readily visible illuminated exit signs.
• Electrical equipment. To the extent that your employees use electrical equipment, you're required to make sure that it's free from recognized hazards that are likely to cause death or serious physical harm. In addition, you must employ safety-related work practices to prevent electric shock or other injuries resulting from electrical contact when work is performed near or on equipment that is or may be energized.
• Fire extinguishers. If you have portable fire extinguishers in the workplace, you're responsible for inspecting, maintaining, and testing them. If you expect employees to use portable fire extinguishers, there are other requirements, including additional training.
• Hazard communication. While this is the most often cited standard in general industry, it has limited applicability to an office setting, other than to certain departments, such as reproduction, facilities management, and housekeeping. To the extent that hazardous chemicals are present in your workplace, you're required to develop, implement, and maintain a written hazard communication program. Employees must be advised that the chemicals are present and told where material safety data sheets are kept, and the chemicals must be properly labeled.
• Floors. You are required to keep all floor surfaces clean, dry, and free from protruding nails, splinters, loose boards, holes, or projections.
• Housekeeping. The OSH Act has a general housekeeping standard that requires all places of employment, including passageways and storerooms, to be "kept clean and orderly and in a sanitary condition."
• Storage areas. All stored materials must be stacked and limited in height so that they are secure against sliding or collapse. Also, storage areas must be kept free from an accumulation of materials that constitutes a tripping, fire, or explosive hazard.
• Drinking water. You are required under the OSH Act to provide potable drinking water in all places of employment.
• Food consumption. The OSH Act requires you to ensure that employees don't consume food or beverages in bathrooms or in any area exposed to toxic material.
• Bathrooms. There's an OSH Act standard that sets forth specific requirements for bathrooms. Each toilet must be located in a separate compartment with a door and walls or partitions between fixtures high enough to ensure privacy. Bathrooms also must have hot, cold, or tepid running water, hard soap or an equivalent, and hand towels, blowers, or an equivalent.

Copyright 2008 M. Lee Smith Publishers LLC

NEW YORK EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in New York employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.