Unsafe Working Conditions and Imminent Danger

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 What is the Occupational Safety and Health Administration (OSHA)?

The Occupational Safety and Health Administration, more commonly known by its acronym “OSHA”, is a federal agency that operates under the U.S. Department of Labor (“DOL”) and is responsible for ensuring that workers are afforded clean, safe, and healthy working conditions. 

Specifically, the federal agency is charged with enforcing the Occupational Safety and Health Act (the “OSH Act”), which is one of the main sources of law governing workplace conditions.

Aside from implementing and enforcing workplace safety regulations, there are several other ways that OSHA helps to ensure a safe working environment for workers in the United States, including:

  • Performing inspections in the workplace;
  • Assisting employees with issues involving health and safety in the workplace; and
  • Providing training and educational resources to both employers and workers.

In addition to prohibiting employers from adopting unsafe work practices, OSHA also provides certain rights to workers, such as protection from employer retaliation when a worker files a complaint regarding unsafe working conditions.

To learn more about the rights and requirements of workers and/or employers covered by the OSH Act, you should speak to a local employment lawyer for further advice as soon as possible.

Who is Covered by OSHA?

Whether or not an employer and employees are covered by OSHA will depend on several factors. The two most important factors in determining whether a worker has rights under OSHA or if an employer must be OSHA compliant are: 

  • The status of a worker; and 
  • The laws of the jurisdiction wherein an employer does business or an employee works.

To clarify this information, consider the following OSHA coverage classifications:

  • Federal government workers: All federal agencies are required to comply with OSHA standards. This means that federal agencies must implement a health and safety program that ensures safe working conditions and meets the same levels of protection that are afforded to workers in the private sector.
  • State and local government workers: Workers who are employed at either a state or local government agency will not be covered by the federal statute. However, they will receive protection if they work in a state that has an OSHA-approved plan.
  • Private sector workers: Most workers in the private section are covered by the federal OSH Act or via a state plan that is approved by OSHA. It should be noted that states must create plans that are either as effective as the one provided by the federal statute or even stricter (e.g., California state OSHA laws). 
    • If a state has adopted its own program, then state regulations will govern which types of workers the OSHA-approved state laws will affect. 

Regardless of how an individual is classified, OSHA coverage extends to workers at every level of an organization, including managers, shareholders, supervisors, executives, and so forth.

What Rights Do I Have Under OSHA?

Workers who are covered under either federal or state OSHA regulations will be afforded certain rights, including the right to:

  • Report an illness or injury thought to be caused by unsafe working conditions without fear of retaliation (e.g., termination, suspension, etc.);
  • Work in a place that is free from unsafe machinery, other equipment, and/or severe levels of exposure to toxic chemicals;
  • Receive work safety equipment like gloves and goggles;
  • File a request that OSHA perform an investigation of an unsafe or dangerous condition in the workplace;
  • View reports of threats or dangers that an OSHA investigator has uncovered; 
  • Refuse to work in a place of business that has unsafe or dangerous working conditions; 
  • Receive training and educational resources regarding compliance requirements with OSHA; and
  • Request that an employer fix any violations of OSHA standards.

It should be noted that since OSHA regulations may also be adopted by states, there may be additional rights that employees are entitled to under the laws of the state in which they work.

What are Unsafe Working Conditions?

An unsafe working condition can be described as a dangerous or hazardous condition in the workplace that prevents a worker from being able to do their job properly. Some unsafe working conditions examples may include:

  • Being exposed to toxic chemicals or substances at work (e.g., asbestos);
  • Having to perform daily job duties without the appropriate safety gear (e.g., goggles);
  • Being forced to use broken machinery or equipment because an employer refuses to get it fixed;
  • Working near exposed electrical wires or with hazardous materials;
  • Disabling or removing parts that would ensure that devices or equipment are safe; and
  • Not receiving the proper training or not being trained at all to use or work with potentially dangerous or hazardous work materials, machinery, or substances. 

What is an Imminent Danger?

According to Section 13(a) of the OSH Act, “imminent danger” is defined as a condition or practice in the workplace that could reasonably be expected to cause immediate serious physical harm or even death before the imminence of that danger can be removed through enforcement procedures or other remedies listed under the Act.

In order to prove that a workplace hazard has become an “imminent danger”, OSHA must find the following elements during its investigation of a particular work environment:

  • A threat of serious physical harm or death must be present;
  • This threat must be immediate or imminent (e.g., the harm could occur before OSHA has a chance to investigate an employee’s complaint); and/or
  • Alternatively, if the unsafe working condition refers to a toxic chemical or other health hazard that would cause harm or shorten the life of a worker who is exposed to it, the threat does not necessarily need to be imminent or immediate.

Additionally, if an OSHA investigation uncovers a danger or health hazard that causes the workplace to become unsafe, then the investigating officer must inform the employer and its employees that OSHA will take further steps to ban the dangerous or hazardous condition. In doing so, OSHA may request that a federal court issue an order that forces the employer to remove that imminent dangerous or hazardous condition.

What if You are Not in Imminent Danger?

Even if a worker is not or does not believe they are in imminent danger, it would still be in their best interest to report an unsafe working condition. A worker can start by discussing the issue with their supervisor or the company’s Human Resources department first. 

If the employer refuses to resolve the issue, then the worker may file a complaint with either a federal OSHA agency or a state-run program, depending on which statute takes precedence in their jurisdiction. Workers should take care to document all communications regarding their complaint in case they need to provide evidence that supports a future legal claim.

Which Laws Cover Unsafe Work Environments?

As previously discussed, both federal and state laws may provide protections against unsafe work environments. While OSHA offers protection under federal regulations, states may also adopt their own health and safety codes or other labor laws concerning unsafe work environments.

In addition, the National Labor Relations Act (“NLRA”) is another federal law that could be useful when reporting an employer for maintaining an unsafe work environment. The Act prohibits employers from retaliating against workers who engage in certain legally protected activities, such as whistleblowing. 

The NLRA also permits members of labor unions to advise employers on how to improve upon workplace conditions and ensure that employers are in compliance with safety and health standards under the relevant laws (e.g., the OSH Act).

What are the Remedies in an Unsafe Working Conditions Lawsuit?

Some remedies that a prevailing plaintiff may be able to collect in an unsafe working conditions lawsuit can include:

  • Injunctive relief to stop an employer from continuing to employ unsafe working practices;
  • A court-order that mandates an employer modify company health and safety policies;
  • Monetary damages, such as lost wages, lost benefits, back pay, front pay, etc.;
  • Reinstatement to their former position if terminated due to filing a complaint;
  • Punitive damages in extreme cases;
  • Evidence to use in a private right of action; and/or 
  • Revocation of an employer’s license or other permit.

It is important to note that the OSH Act does not currently provide for a private right of action. However, the Act also does not preclude workers from pursuing a private right of action under individual state OSHA statutes or workers’ compensation laws. Thus, an employee may report a violation of unsafe working conditions, retaliation, or whistleblowing under the OSH Act, which OSHA will then review and investigate.

If OSHA finds that an employer is in violation of the OSH Act, then the employee may use this determination as evidence to support a private lawsuit in civil court. Of course, this will depend on if a state has statutes that permit an employee to pursue such actions. Accordingly, a worker should seek advice from an employment lawyer regarding other remedies that they may or may not be able to recover in an unsafe working conditions lawsuit.

Should I Hire a Lawyer for Help with an Unsafe Working Conditions Claim?

When it comes to filing a claim for unsafe working conditions in the workplace, time is of the essence. This means that if you fail to file your claim before the statute of limitations expires, you could lose the opportunity to recover damages and/or any other legal remedies that you might be owed. This is especially true in cases that involve an element of imminent danger. 

As such, it may be in your best interest to hire a local workers compensation attorney for further assistance with your OSHA claim. An experienced employment attorney will be able to make sure that you meet all of the requisite filing deadlines as well as can help you with the overall process of filing an unsafe working conditions claim.

Your attorney can also recommend different options of legal recourse that may be available to you and can ensure you bring the claim under the proper federal or state OSHA regulation. Additionally, your lawyer can advise you of your rights under the applicable laws and can help you to protect those rights by providing representation in court or at an administrative hearing.


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