|OSHSPA Reports on State Plan Activities > 2001 OSHSPA Report > State Responsibility: Providing Worker Protections|
|State Responsibility: Providing Worker Protections|
Historically, states have embraced their responsibility to protect the safety and health of their workers. State plans use a variety of activities to encourage employers to establish worker protections programs. States offer companies leadership, guidance and flexibility to help them save lives and prevent injuries and illnesses.
A comprehensive safety and health program is one of the most effective tools employers have to address workplace injuries and illnesses. Recent studies have estimated that safety and health programs save $4 to $6 for every dollar invested. States use a combination of additional penalties and criminal prosecution against employers in cases of death or serious injury. States also have specific rules to prohibit discrimination against employees who exercise their rights under the safety and health statutes.
Safety & Health Programs
Statistics show that many occupational accidents and illnesses are preventable through an effective safety and health program. For a workplace program to be effective, the employer should develop a comprehensive plan emphasizing both management commitment and employee participation. Development and conscientious implementation of such a program should result in lower injury, illness and fatality rates along with lower workers’ compensation costs.
Safety and health programs further the goal of changing the workplace environment to increase employer and worker awareness of, commitment to, and involvement in safety and health. Federal OSHA has 70 partnerships with 4,600 employers nationwide that stress the importance of employer and employee commitment to developing a safety culture which becomes an integral part of operations.
Alaska, California, Connecticut, Hawaii, Minnesota, Nevada, New Mexico, North Carolina, Tennessee, Washington
Alaska, California, Connecticut, Hawaii, Minnesota, Nevada, New Mexico, North Carolina, Tennessee and Washington require employers to develop and maintain comprehensive safety and health programs–which contain the elements of worksite analysis to identify actual and potential hazards, technical and administrative control of the hazards, and training for all personnel, including supervisors and managers.
California law requires all employers to set up effective written injury and illness prevention programs. Employers must conduct periodic worksite inspections to identify unsafe conditions and work practices, and eliminate any hazards found.
Minnesota requires employers in industries with high injury and illness incidence and severity rates to develop a written workplace safety and health program. Employers of 25 or more employees are required to establish a joint labor-management safety committee, and those with fewer than 25 employees must establish a committee if their pure premium rate is in the top 25 percent for all classes.
Washington requires every employer to develop a written plan addressing the hazards of that business. The plan must include a safety and health committee of employer and employee representatives, and employee training in safe work practices. The state’s video, Staying a Step Ahead, helps employers and their employees establish accident prevention programs on their own without waiting first for on-site consultation.
Hawaii, Nevada, North Carolina, Oregon
Hawaii requires written safety and health programs at all businesses. Nevada requires a written safety program of employers with 11 or more employees, and employers with more than 25 employees must have a safety committee. North Carolina requires employers with a high rate of workers’ compensation claims to have written safety and health programs, and to establish formal safety and health committees. Oregon requires labor-management workplace safety and health committees for most employers in the state.
Violations Causing Worker Death or Serious Injury
Arizona, California, Iowa, Maryland, Minnesota, North Carolina, Oregon and Virginia laws provide for additional penalties regarding violations that result in worker deaths or serious injuries.
Virginia law provides criminal penalties up to $70,000 or imprisonment up to six months or both for the first occurrence of any willful violation that causes the death of an employee. A second occurrence can double both the fine and length of sentence. Virginia’s policy is to recommend criminal prosecution for manslaughter against any person whose flagrant, culpable and wanton violation of VOSH laws results in the death of an employee. Virginia has successfully prosecuted a criminal willful violation and a manslaughter charge. A $7,000 penalty is assessed for a serious fatality-related violation, a $70,000 penalty is assessed for a repeat or willful fatality-related violation, and no adjustments are made.
Arizona statute directs the Industrial Commission to assess an additional $25,000 penalty against any employer for each employee who suffers permanent disability or death as the result of a willful or repeated OSH violation. The following provisions must be met: the citation was a final order; workers’ compensation benefits were paid as a result of the employee’s permanent disability or death; and the OSH violation did not result from employee disobedience. The additional penalty is paid to injured employees or their dependents.
During its 2000 session, the Legislature amended the Minnesota Occupational Safety and Health Act by increasing the minimum penalty assessed in cases where a violation causes or contributes to the death of an employee. The minimum non-negotiable fine for all citations connected to the death of an employee if there is a willful or repeat violation is $50,000. If there is no willful or repeat violation, the minimum fine is $25,000. The legislation went into effect July 2000.
In September 2001, Iowa filed criminal willful charges for the first time for a communication tower fatality when a 29-year-old employee died on his first day on the job.
Oregon law provides for a civil penalty of up to $10,000 or imprisonment up to six months or both, if a willful violation of the OSHA Act materially contributed to the death of an employee.
California law provides that if a repeat or willful violation caused death or serious injury, illness or exposure, the penalty is not reduced for any reason other than size of employer and no abatement credit is given. Legislation provides that any employer or employee who has direction or management of any place of employment or employee, and who willfully violates any occupational safety or health standard, order, special order or Section 25910 of the Health and Safety Code–and that violation caused an employee’s death or permanent/prolonged bodily impairment–is guilty of a public offense. The penalty is county jail imprisonment up to one year or a fine of up to $100,000 or both–or state prison for 16 months to three years or a fine of up to $250,000 or both. If the defendant is a corporation or limited liability company, the fine may not exceed $1,500,000.
If the conviction is for a violation committed within seven years of a conviction under subdivision (b), (c) or (d) of Section 6423 or subdivision (c) of Section 6430, the penalty is state prison for a term of 16 months to three years or a fine of up to $250,000 or both. If the defendant is a corporation or limited liability company, the fine can range from $500,000 to $2,500,000.
If the conviction is for a violation committed within seven years of a first conviction of the defendant for any crime involving violation of subdivision (a), the penalty is imprisonment in state prison for two to four years or a fine of up to $250,000 or both. If the defendant is a corporation or limited liability company, the fine can range from $1 million to $3,500,000.
In Michigan, all fatality investigations that result in willful serious citations are referred to the Attorney General for consideration regarding possible criminal liability under MIOSHA and/or the general state criminal statutes.
An employee was killed and two others seriously injured at Midland Environmental Services while removing and opening an underground petroleum storage tank. The MIOSHA investigation resulted in the issuance of several citations for willful violations of MIOSHA requirements. Criminal charges were brought by the Attorney General.
The outcome of the case was a guilty plea by the employer on behalf of himself and the corporation to two counts of attempted involuntary manslaughter and two counts of violations of Section 35a(5) of MIOSHA, which is the criminal sanction for willful violations that cause the death of an employee.
Sentencing took place on Dec. 19, 2000. The owner received five years probation and 200 hours of community service. The owner and the corporation paid the full combined statutory fine of $35,000, and were required to abide by all MIOSHA and DEQ laws. The employer also agreed to pay a reduced civil penalty and to additional conditions, including reporting worksite operations to MIOSHA.
Discrimination Against Workers Reporting Hazards
According to federal OSHA records, Michigan’s Employee Discrimination Division (EDD) has the fastest resolution time in the nation. Complaints are normally settled within three months. One case that went to the Michigan Supreme Court clearly shows the total commitment of the MIOSHA program to protect employee rights. In 1991 the case was investigated by EDD, which determined a dismissed employee should be reinstated with full seniority and back pay including interest. The company appealed the decision first to the department’s Office of Hearings, then to Wayne County Circuit Court, next to the Michigan Court of Appeals, and finally the Michigan Supreme Court. Eight and a half years later the case was finally resolved, and it was determined the company would issue to the employee two payments totaling $40,000 including interest. Though this case is not typical, during every step of the proceedings, there was judicial and administrative support for the protection of employee rights.
Kentucky’s uniquely structured system for addressing discrimination against employees who exercise their rights under the safety and health statutes includes reinstatement under order of the Secretary, pending litigation outcome. Citations and penalties up to $10,000–in addition to reinstatement and back pay to the employee–may be assessed against employers who have discriminated. Cases are appealed through the Kentucky Occupational Safety and Health Review Commission. Under Kentucky law, liens may be placed against employers who are in violation of any requirement of the Kentucky safety and health statutes, once administrative and judicial appeals have been exhausted.
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