OSHA oversight also plagues packagers

September, 2013

Eric F. Greenberg | Attorney-at-Law

As has been noted here, it’s hard to summarize what’s meant by packaging law in a nutshell. For all the time that observers and writers spend trying to define the term “packaging law,” remember there will also be other legal obligations and responsibilities relating to a packaging business as a business, rather than as a packaging business as such.

So while the term “packaging law” may most often imply regulatory requirements from FDA and other agencies or environmental law and regulations, topics like business contracts and employment relationships are also part of the picture. This month we look at one generalized business obligation in particular: If you have employees, the safety of the workplace for workers is the subject of requirements of a federal agency, the Occupational Safety and Health Administration, or OSHA.

Packaging facilities are not immune to the coverage of OSHA requirements, or their penalties, as recent headlines can attest.

After all, packaging factories are factories, and packaging machinery that makes materials, combines them, converts them, or does any number of other things to them, needs to be safe for workers, as does the air and water the workers encounter in the facility, as does the level of noise they are subjected to, as does the physical plant’s conditions themselves.

OSHA is part of the U.S. Department of Labor, and was created under the Occupational Safety and Health Act of 1970 (OSH Act) signed by President Nixon. It’s hard to overlook. The law imposes a complex set of requirements on employers and gives specified rights to employees. The OSHA Act covers most employers in the private sector and even some in the public sector, sometimes directly and sometimes via OSHA-approved state plans.

OSHA’s stated mission is “to assure safe and healthful workplaces by setting and enforcing standards, and by providing training, outreach, education, and assistance.”

Even though the Act has been in place for more than 40 years, workplace safety continues to be a problem (though, one hopes, a smaller problem than it’d otherwise be). An OSHA web site video says, “Every day in America, 12 workers are killed on the job,” and about 3 million are seriously injured.

The Act requires employers to provide workers “with a workplace that does not have serious hazards and must follow all OSHA safety and health standards,” says an OSHA publication.

The law calls for employers to “find and correct” safety problems, and try first to “eliminate or reduce hazards by making feasible changes in working conditions” instead of relying on masks, gloves, ear protection, or other forms of personal protective equipment. Employers with more than 10 employees must keep records of accidents, injuries, and illnesses that are job-related.

Employers have other obligations, including informing their workers about chemical hazards, giving them safety training, keeping records of illnesses or injuries, and notifying OSHA promptly of a fatality or of hospitalization of three or more workers. Workers are given a series of rights, including rights to information and freedom from retaliation for reporting problems.

OSHA has created specific safety standards for a number of industries (such as asbestos, mine safety, and grain elevators) and provided for disclosure of hazardous chemicals workers are exposed to, and when no more specific standard applies, the Act also has what it calls the “General Duty Clause,” which calls for employers to “keep their workplaces free of serious recognized hazards.”

To enforce the law’s requirements, the Act gives OSHA the authority to inspect workplaces. Inspection priorities are in the following order: situations of imminent danger; catastrophes; worker complaints and referrals; targeted inspections-high injury/illness rates, severe violators; and follow-up inspections. The OSHA compliance officer reports findings to the OSHA area director who in turn determines whether citations and penalties should be issued.

Penalties are financial fines that the agency itself can impose. Penalties vary based on the type of violation (willful, serious, other than serious, or de minimis) and whether it is a repeat violation, and the amounts are not trivial.

Employers committing willful violations (those committed knowingly or with plain indifference to the law) may be assessed a civil penalty of between $5,000 and $70,000 for each violation. Serious violations are those where the employer knew or should have known that there was a substantial probability that death or serious physical harm could result, and results in a mandatory penalty of up to $7,000 per violation.

An “other than serious” violation is one where a direct relationship to job safety and health exists, but the situation would not be likely to cause death or serious physical harm. These types of violations may be assessed a civil penalty of up to $7,000 per violation.

De minimis violations have no direct relationship to health and safety and do not carry fines. Repeat violations can result in fines up to $70,000 per violation. There are also additional penalties for failure to abate previous violations within the prescribed time, with fines up to $7,000 per day for each violation that is not abated.

As noted, packaging facilities are covered by OSHA requirements and have indeed been subject to penalties for alleged violations. On the other hand, packagers on occasion have been celebrated by OSHA for success with workplace safety and health achievements. In short, OSHA’s requirements are there, for better or worse. PW

Eric Greenberg can be reached at [email protected], and visit his firm’s Web site at www.ericfgreenbergpc.com.