Workplace Safety
Chapter 15
Workers’ Compensation
State law
Benefits for work-related injuries and
illnesses.
Benefits might be paid by
– Insurance company
– Employer
– State
Work-related injury or illness
Must occur within the scope of employment
Must not be intentional self-inflicted
Employee must not be drugged or
intoxicated
Workers’ Compensation statutes
began being passed in the early 1900s
Before that employers had a number of
defenses if an employee was injured
– Contributory negligence
– Assumption of risk
– Fellow-servant rule
What does Workers’ Compensation
typically cover?
Medical bills
Lost income (2/3 of salary. Not subject to
income tax.)
Recovery for loss of use of body parts.
Rehabilitation
Death benefits for dependents
Who is covered?
In some states, employers do not have to
provide coverage if they have fewer
employees than a certain number. (In GA, it
is 3.)
Some workers are covered under similar
federal laws
– Federal Employer’s Liability Act
– Longshore & Harbor Workers’ Compensation Act
– Merchant Marines Act (Jones Act)
Advantages to Workers’ Compensation
Employer is strictly liable
– Do not care who is at fault
– Less for employee to have to prove. Should be
paid faster
Disadvantages to Workers’
Compensation
Employees collect less than in a lawsuit
Workers’ Compensation is “the exclusive
remedy against the employer.” The
employer can not be sued in negligence.
What additional damages could an employee
collect if s/he could sue in negligence?
– 100% lost income (unlimited)
– Pain and suffering
– Punitive damages
Employee cannot sue the employer in
negligence, but what about a third party?
Employer/insurance carrier usually have a
right of SUBROGATION.
What defenses can an employer raise?
Worker is not an employee. S/he is an
independent contractor.
Not work related. Not within the scope of
employment.
Employee is actually able to work.
State Board of Workers’
Georgia
Compensation
Information for Georgia Employers
See SMB Stage Line, Inc. v. Leach,
204 Ga. App. 229, 418 S.E.2d 791
(1992)
See Collie Concessions, Inc. v. Bruce,
272 Ga. App. 578, 612 S.E.2d 900
(2005)
Occupational Safety & Health Act
The OSH Act is the principal federal governing the
safety of private sector workplaces.
The Act created 3 new agencies:
– OSHA, the Occupational Safety & Health Administration
(administers the OSH Act)
– OSHRC, the Occupational Safety & Health Review
Commission (independent from OSHA; hears appeals
from OSHA rulings)
– NIOSH, the National Institute of Occupational Safety &
Health (provides scientific & technical support to OSHA)
Statutory Basis
The Occupational Safety and Health Act
requires employers to provide a place of
employment free from recognized hazards
and to comply with other standards under the
act
It also requires employees to comply with
health standards and rules applicable to his
or her own actions
Safety at Work
Prior to the act in 1970 there was no
comprehensive requirement for employers to
provide safe working conditions
Three common law defenses often allowed
employers to escape liability
– Contributory negligence
– Assumption of risk
– Fellow servant rule
Act covers any employer that is in a business
affecting commerce
Requires employers to comply with
standards set by Department of Labor
– Compliance requirements
Requires employers to provide workplace
free from recognized hazards
– General duty clause
Workplace death rate cut in half since act
Excluded from Coverage
All Governments
Family business
Self-employed
Rail Roads
Mining
Nuclear
Farms employing 25 people or less
Procedure for
Enforcement
Occupational Safety and Health
Administration (OSHA) administers act
Inspects workplaces without prior notice
Penalties may be assessed
Standards set by National Institute for
Occupational Safety and Health
Managers may be held personally liable for
offenses
Compliance Provisions
Some specific regulations apply to nearly all
types of employers
– Adequate ventilation, emergency exits, safety
nets, guard rails
– Proper training for employees
Continual-training requirement
– Medical exams for exposure to toxic substances
– Driver training, seat-belt usage, vehicle inspection
When & why does OSHA inspect?
Imminent danger
A death or 5 or more employees are
hospitalized
Legitimate employee complaint
Special program or projects
Random
Re-inspection
Does OSHA need a search warrant?
Developing and enacting new standards can
take some time.
Emergency temporary standards may be set
when employees are exposed to grave
danger from exposure to substances and the
standards are necessary to protect the
employees from danger
General Duty Clause
Requires employers to provide each
employee employment and a place of
employment free from recognized hazards
that cause or are likely to cause death or
serious physical harm
Recognizable hazards may actually be
known by the employer or recognized by the
industry
“Likely to cause serious physical harm or
death” has been construed to mean
“possible”
Since OSHA has not addressed HIV/AIDS
exposure with a specific standard, the
general duty clause may apply
OSHA does not hold employers liable for
employees’ home offices, but considers cars
“virtual worksites”
Violation of the General Duty Clause
The elements necessary to prove a violation
of the general duty clause are:
1. A workplace hazard was allowed to exist.
2. The hazard was or should have been
recognized by the employer.
3. The hazard caused or was likely to cause
death or serious physical injury.
4. Feasible means exist to abate the hazard
and were not used.
Employers have been held liable for
repetitive use injuries although there are no
specific standards
Employees may refuse to work in an unsafe
work environment without fear of retaliation
OSHA has guidelines, but no rules, on
workplace violence
– General duty clause may apply
Elements of a Violation
To establish violation of a safety standard,
OSHA must show all the following:
– 1. An applicable standard exists.
– 2. The standard was not complied with.
– 3. One or more employees were exposed or
had access to the hazard.
– 4. The employer knew or should have known
of the hazard.
Just the Facts
For a company-sponsored outdoor barbecue, the employer
purchased a gas grill equipped with a 20-pound propane tank. To
ensure sufficient gas to complete the grilling, the employer then
purchased and installed a 40-pound tank. Doing so was difficult, as
the larger tank required use of a special adaptor and had to be
tipped at an angle to fit under the grill. The larger tanks have a
warning label that cautions against using them with grills ordinarily
equipped with 20-pound tanks. Several employees were assigned
to operate the grill. When it was determined that the grill was not
adequately cooking the meat, two of the employees attempted to
improve the flow of gas by checking the regulator and repositioning
the tank. This caused fuel to escape and a ball of fire to erupt from
the grill. One employee suffered severe burns to his hands and the
other had his hair singed. Did this employer violate the general duty
clause of OSHA?
– Safeway v. OSHRC, 382 F.3d 1189 (10th Cir. 2004).
How serious a fine should OSHA
impose?
OSHA will consider
– Number of same violations
– Severity of hazard
– Number of employees exposed
Penalty Adjustments: fines can be
reduced by a percentage
OSHA will consider
– Good faith
– Size of the business
– History (safety record)
– Abatement period was too short
Appeals
Employers can appeal: citation, fine or
abatement period
Employees can appeal: only abatement
period
Employer Reporting Responsibilities
and Employee Rights
OSHA has strict reporting requirements
– Work-related incidents must be reported within 6
days
– Work-related accidents resulting in hospitalization
or death must be reported within 48 hours
Employees also have rights which must be
posted or communicated to them by their
employers
Recording & Reporting Requirements
Employers not exempt from record keeping are required to
establish and communicate to their employees specific
procedures for reporting workplace injuries and illnesses.
Employers are required to record (within 6 days of their
occurrence):
– all work-related injuries or illnesses that result in death,
– days away from work,
– restricted work,
– transfer to another job,
– loss of consciousness, or
– medical treatment beyond first aid
– and any other “significant” injuries or illnesses diagnosed by
licensed health care professionals.
Violations of such requirements can be costly.
Employer Defenses
Reckless behavior by employees may
minimize employer liability
Physical or economic impossibility of
compliance may apply if OSHA has issued a
variance
Employee reduction of risk may apply if the
workplace cannot be made safe
Greater hazard defense applies when
compliance is more dangerous than
noncompliance
Guidance?
Employers should have standard procedures
for accident investigation
Efforts should be made to remove actions
leading to injury or accident
Employers should implement training
programs to teach proper usage of materials
or machines
R. Williams Construction v OSHRC
Facts: A trench collapse at sewer construction project killed
one employee and seriously injured another. A hydraulic jack
shoring system which supported the trench wall had been
removed the day before the accident, and the walls of the
trench were not sloped as required by OSHA regulations.
None of the employees had received safety training, and the
employer was unfamiliar with OSHA requirements. The on-
site supervisor had never read the safety manual. He testified
that the employees talked about safety “all the time,” but
could not recall when any specific rules were discussed.
Issue: Did the employer meet its obligations under OSHA by
relying on general work experience and common sense?
Held: No. The company violated at least four specific
provisions of the OSH Act.
Preventing Occupational Injuries
& Illnesses
Employers should focus on eliminating hazards or
reducing them to the maximum extent possible
through use of engineering and administrative
controls.
Safety rules should be clear, specific, consistent with
one another, and strictly enforced.
Employers should be proactive in identifying and
abating unsafe conditions in their workplaces.
Recommended: Establish an effective workplace
safety program.
Responding to Workplace Injuries
Employers should require that employees report all
workplace injuries as soon as possible, so that
treatment can be provided.
Employers should err on the side of caution in
referring injured employees for medical treatment.
Reports of injuries should be investigated
immediately and thoroughly.
Hazards that caused the injuries should be identified
and abated.
Workers’ compensation claims should not be
contested unless there are reasonable grounds for
doing so.
What Would You Do?
You are the production manager of a small
factory, which has been newly relocated to a new
facility. You’ve done everything you can to gear up
to full production safely. Equipment has been
installed by professionals, inspections performed,
and safety training sessions held for all, even your
experienced workers. Now, about an hour into
your first day of full production, as you stand on
the floor overlooking the line, you see employees
falling ill, some becoming unconscious, and the
equipment is still running. In fact, suddenly, you’re
not feeling well yourself. What would you do?