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Tuberculosis in the Workplace (2001) / Chapter Skim
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Appendix E OSHA in a Health Care Context
Pages 271-292

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From page 271...
... territories and guarantees workers a workplace safe from the threat of workplace accidents and exposure to toxic substances (Occupational Safety * Scott Burris, J.D., Professor of Law, Temple University Beasley School of Law, Philadelphia, Pennsylvania.
From page 272...
... Political Bodies Responsible for Administering OSHA The administration of the Act is comprised of four basic functions: research on workplace risks and risk reduction; the development of specific safety standards (called rulemaking) ; enforcement of the rules through education and technical assistance, as well as investigation and punishment of violations; and adjudication and judicial review of standards and enforcement measures.
From page 273...
... These committees may be permanent committees to advise the Secretary on safety and health in a single industry or temporary committees created to advise the Secretary on issuing a single standard (Rothstein, 1998~. Rulemaking The Act creates a duty for each covered employer to provide "to each of his employees employment and places of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees" (Occupational Safety and Health Act of 1970~.
From page 274...
... These reports help OSHA decide what industries or sites should be targeted for inspections and assess how well the Act and state plans are being implemented. Standards designed to address toxic substances also include exposure control plans.
From page 275...
... A repeated violation arises when the same employer has been cited at least once before, and a final order was issued for a substantially similar violation. OSHA may issue a willful violation when the employer has blatantly violated the Act demonstrating indifference to complying with its standards (Rothstein, 1998; Occupational Safety and Health Act of 1970~.
From page 276...
... The deterrent effect of fines and unannounced inspections makes some contribution, but the agency also uses positive methods of training and technical assistance to facilitate employer compliance with standards. Some research suggests that the cooperative approach to regulation under OSHA such as facilitation of worker involvement in safety programs actually has a greater deterrent effect on workplace hazards than do coercive measures such as fines (Rabinowitz and Shapiro, 1997; Gray and Scholz, 1997)
From page 277...
... However, appeals from the final order of OSHRC or from OSHA's decision to issue a new standard go directly to the Circuit Courts of Appeals (Occupational Safety and Health Act of 1970~. Decisions of the Courts of Appeals can be appealed to the Supreme Court, which has the discretion to hear the case or leave the lower court decision unreviewed.
From page 278...
... The plan to regulate Occupational Exposure to Tuberculosis calls for state plan jurisdictions to adopt the new rule or one at least as effective within 6 months of the rule's final approval by OSHA (Occupational Exposure to Tuberculosis, 1997~. The enforcement of standards in state plan jurisdictions does not differ substantially from that in OSHA jurisdictions (Occupational Safety and Health Act of 1970~.
From page 279...
... 1910.145 Iffy. The proposed rule to regulate occupational exposure to tuberculosis is hazard specific.
From page 280...
... Over time the implementation of certain executive orders and other acts of Congress have added more procedural steps for agencies making regulations. Procedural requirements of the statute provide that a new OSHA standard shall be adopted according to the following procedure: · A notice of proposed rulemaking is placed in the Federal Register.
From page 281...
... The cost-benefit and costs minimization analyses are discussed below in the section on substantive rulemaking requirements, as they have some impact on understanding how OSHA is tabulating the effect of its proposed standard and how OSHA developed some portions of the content of its standard. OSHA did not find that there were nonregulatory alternatives to accomplishing the same goal as the proposed standard (Occupational Exposure to Tuberculosis, 1997~.
From page 282...
... As interpreted by the courts, the phrase "the standard which most adequately assures" sets two important characteristics of OSHA standards. First, since the phrase does not specifically enumerate the means by which OSHA standards should protect employee safety and health, the Act authorizes OSHA to impose workplace practices, environmental controls, or protective equipment or any combination of the three to abate occupational exposure to toxic substances.
From page 283...
... OSHA noted the existence of this equipment in its report on the proposed rule and commented that they were already in widespread use (Occupational Exposure to Tuberculosis, 1997~. To satisfy provisions of Executive Order 12866 as well as its own economic and technological feasibility analyses, OSHA may tailor its standards to the industries it affects taking into consideration size, expertise, and resources of the businesses involved.
From page 284...
... In a number of standards, including the bloodborne pathogen and lead standards, OSHA has encompassed infections or other pre-symptomatic events antecedent to serious illness as "material impairments." The proposed rule on tuberculosis reflects this view. In the proposal, OSHA discusses the risk of death and serious disease, but regards even infection alone as a material impairment (Occupational Exposure to Tuberculosis, 1997~.
From page 285...
... For example, in ASARCO v. OSHA, members of the smelting industry challenged OSHA's standard governing exposure to airborne arsenic because it relied on studies treating duration as the key factor in determining the risks of exposure.
From page 286...
... Statutory Definitions of Employees and Employers The statute defines an employee as "an employee of an employer who is employed in a business of his employer which affects commerce" (Occupational Safety and Health Act of 1970~. An employer is "a person engaged in a business affecting commerce who has employees, but does not include the United States or any State or political subdivision of a State" (Occupational Safety and Health Act of 1970~.
From page 287...
... The Secretary of Labor's regulations delineate a two-prong test for determining whether or not an entity qualifies for the political subdivision exemption from OSHA regulation: "1) whether the entity is created directly by the state so as to constitute a department or administrative arm of government, or 2)
From page 288...
... The current scheme for federal compliance was set out in a 1980 Executive Order of President Carter, which requires federal agencies · to comply with OSHA standards unless the Secretary of Labor approves an alternative safety plan; · to comply with the general-duty clause of the Act by ridding federal workplaces of all recognized hazards that cause or are likely to cause death; · to comply with antidiscrimination requirements of the Act by allowing employees to report safety problems without fear of retaliatory action; · to establish within each agency an occupational safety and health committee consisting of an equal number of management and nonmanagement employees to monitor the agency's safety and health performance; and · to allow unannounced inspections by the Secretary of Labor under certain conditions (Executive Order 12196, 1980~. section.
From page 289...
... It is also possible to assign responsibilities for compliance by contract (Occupational Exposure to Tuberculosis, 1997~. OSHA's proposed tuberculosis standard explains how responsibility would be assigned in covered multiemployer work sites and the home health care industry (Occupational Exposure to Tuberculosis, 1997~.
From page 290...
... Of course, OSHA could also informally stop enforcing a rule that was no longer necessary to protect worker health, at least while it was moving formally to change or rescind the standard. OSHA might also use new information in setting the level of violation or fine in its enforcement scheme (Occupational Exposure to Tuberculosis, 1997~.
From page 291...
... 490 (1981~. Anonymous: Recent Case: Administrative Law—Occupational Safety and Health Act On Multiemployer Jobsite, When Employees of Any Employer Are Affected by Noncompliance with a Safety Standard, Employer in Control of Work Area Violates Act; Employer Not in Control of Work Area Does Not Violate Act, Even if his own Employees are Affected.
From page 292...
... 1989~. Unfunded Mandates Reform Act of 1995, 2 U.S.C.A.


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