In carrying out its duties, OSHA is responsible for promulgating legally enforceable standards and regulations. The difference between a standard and a regulation is that:
Standards aim toward correction of identified hazards, while
Regulations serve general enforcement and detection purposes.
OSHA standards and regulations may require conditions, or the adoption or use of one or more practices, means, methods or processes reasonably necessary and appropriate to protect workers on the job.
It is the employers' responsibility to become familiar with the standards and regulations applicable to their establishments. Likewise, employees are responsible to comply with all rules or regulations which are applicable their own actions and conduct. Where OSHA has not promulgated specific standards, employers are responsible for following the Act's General Duty Clause.
The General Duty Clause of the Act states that each employer "shall furnish … a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."
States with OSHA-approved occupational safety and health programs must set standards and regulations which are at least as effective as the federal. Many state-plan states adopt those identical to the federal.
OSHA standards and regulations fall into four major categories — General Industry, Maritime, Construction and Agriculture.
The Federal Register is one of the best sources of information, since all OSHA standards and regulations are published there initially as proposals and notices, then as final rules, all amendments, corrections, insertions or deletions. The Federal Register is available in many public and university libraries. Annual subscriptions are available from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402. For current prices, contact the GPO.
Each year the Office of the Federal Register publishes all current regulations and standards in the Code of Federal Regulations (CFR), available at many libraries and from the Government Printing Office. OSHA's regulations are collected in Title 29 of the CFR, Part 1900–1999.
Twenty-two states plus Puerto Rico and the Virgin Islands enforce their own occupational safety and health standards which can be more stringent than federal requirements. Copies of state standards must be obtained from the individual states.
OSHA can begin standards-setting procedures on its own initiative or as the result of a Congressional mandate. The regulatory process may also be initiated in response to petitions from other parties, including the Secretary of Health and Human Services (HHS); the National Institute for Occupational Safety and Health (NIOSH); state and local governments; any nationally-recognized standards-producing organization, employer or labor representatives; or any other interested person.
If OSHA determines that a specific standard is needed, any of several advisory committees may be called upon to develop specific recommendations. There are two standing committees, and ad hoc committees may be appointed to examine special areas of concern to OSHA.
All advisory committees, standing or ad hoc, must have members representing management, labor and state agencies, as well as one or more designees of the Secretary of HHS. The occupational safety and health professions and the general public also may be represented. The two standing advisory committees are:
National Advisory Committee on Occupational Safety and Health (NACOSH), which advises, consults with, and makes recommendations to the Secretary of HHS, and to the Secretary of Labor on matters regarding administration of the Act.
Advisory Committee on Construction Safety and Health, which advises the Secretary of Labor on formulation of construction safety and health standards and other regulations.
Ad hoc committees are also appointed by the Secretary of Labor and operate in a manner similar to standing committees, but are limited in duration to 270 days.
Recommendations for standards also may come from NIOSH, established by the Act as an agency of the Department of HHS.
NIOSH conducts research on various safety and health problems, provides technical assistance to OSHA and recommends standards for OSHA's adoption. Especially important is NIOSH's investigation of toxic substances and its development of criteria for the use of such substances in the workplace.
While conducting its research, NIOSH may make workplace investigations, gather testimony from employers and employees and require that employers measure and report employee exposure to potentially hazardous materials. NIOSH may also require employers to provide medical examinations and tests to determine the incidence of occupational illness among employees. When such examinations and tests are required by NIOSH for research purposes, they may be paid for by NIOSH rather than the employer.
Once OSHA has developed plans to propose, amend, or delete a standard or rule, it publishes these intentions in the Federal Register as a "Notice of Proposed Rulemaking," or often as an earlier "Advance Notice of Proposed Rulemaking."
An "Advance Notice" is used to solicit information that can be used in drafting a proposal. The notice will include the terms of the new rule and provide a specific time (at least 30 days from the date of publication, usually 60 days or more) for the public to respond.
Interested parties who submit written arguments and pertinent evidence may request a public hearing on the proposal when none has been announced in the notice. When such a hearing is requested, OSHA must schedule one, and must publish, in advance, the time and place for it in the Federal Register.
After the close of the comment period or public hearing, OSHA must publish in the Federal Register the full, final text of any standard amended or adopted and the date it becomes effective, along with an explanation of the standard and the reasons for implementing it. OSHA may also publish a determination that no standard or amendment needs to be issued.
Under certain limited conditions, OSHA is authorized to set emergency temporary standards and regulations which take effect immediately and are in effect until superseded by a permanent version. OSHA must determine that workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or new hazards and that an emergency standard is needed to protect them.
Then, OSHA publishes the emergency temporary rule or standard in the Federal Register, where it also serves as a proposed permanent standard or rule. It is then subject to the usual procedure for adoption except that a final ruling must be made within six months. The validity of an emergency temporary rule or standard may be challenged in an appropriate U.S. Court of Appeals.
No decision on a permanent status is ever reached without due consideration of the arguments and data received from the public in written submissions and at hearings. However, any person who may be adversely affected by a final or emergency rule or standard may file a petition (within 60 days of the rule's issuance) for judicial review of the standard with the U.S. Court of Appeals for the circuit in which the objector lives or has his or her principal place of business. Filing an appeals petition, however, will not delay the enforcement of a standard, unless the Court of Appeals specifically orders it.
Employers may ask OSHA for a variance from a standard or regulation if they cannot fully comply by the effective date, due to shortages of materials, equipment or professional or technical personnel, or can prove their facilities or methods of operation provide employee protection "at least as effective as" that required by OSHA.
Employers located in states with their own occupational safety and health programs should apply to the state for a variance. However, if an employer operates facilities in states under federal OSHA jurisdiction and also in state plan states, the employer may apply directly to federal OSHA for a single variance applicable to all the establishments in question.
OSHA will then work with the state plan states involved to determine if a variance can be granted which will satisfy state as well as federal OSHA requirements.
A temporary variance may be granted to an employer who cannot comply with a standard or regulation by its effective date, due to unavailability of professional or technical personnel, materials or equipment, or because the necessary construction or alteration of facilities cannot be completed in time.
The employer must demonstrate to OSHA that he or she is taking all available steps to safeguard employees in the meantime, and that the employer has put in force an effective program for coming into compliance with the standard or regulation as quickly as possible.
A temporary variance may be granted for the period needed to achieve compliance or for one year, whichever is shorter. It is renewable twice, each time for six months. An application for a temporary variance must identify the standard or portion of a standard from which the variance is requested and the reasons why the employer cannot comply with the standard. The employer must document those measures already taken and to be taken (including dates) to comply with the standard.
The employer must certify that workers have been informed of the variance application, that a copy has been given to the employees' authorized representative, and that a summary of the application has been posted wherever notices are normally posted. Employees must also be informed that they have the right to request a hearing on the application.
The temporary variance will not be granted to an employer who simply cannot afford to pay for the necessary alterations, equipment or personnel.
A permanent variance (alternative to a particular requirement or standard) may be granted to employers who prove their conditions, practices, means, methods, operations or processes provide a safe and healthful workplace as effectively as would compliance with the standard.
In making a determination, OSHA weighs the employer's evidence and arranges a variance inspection and hearing where appropriate. If OSHA finds the request valid, it prescribes a permanent variance detailing the employer's specific exceptions and responsibilities under the ruling.
When applying for a permanent variance, the employer must inform employees of the application and of their right to request a hearing. Anytime after six months from the issuance of a permanent variance, the employer or employees may petition OSHA to modify or revoke it. OSHA also may do this of its own accord.
So that an employer may continue to operate under existing conditions until a variance decision is made, he or she may apply to OSHA for an interim order. Application for an interim order may be made either at the same time as, or after, application for a variance. Reasons why the order should be granted may be included in the interim order application.
If OSHA denies the request, the employer is notified of the reason for denial.
If the interim order is granted, the employer and other concerned parties are informed of the order, and the terms of the order are published in the Federal Register. The employer must inform employees of the order by giving a copy to the authorized employee representative and by posting a copy wherever notices are normally posted.
If an employer is participating in an experiment to demonstrate or validate new job safety and health techniques, and that experiment has been approved by either the Secretary of Labor or the Secretary of HHS, a variance may be granted to permit the experiment.
In addition to temporary, permanent and experimental variances, the Secretary of Labor also may find certain variances justified when the national defense is impaired. For further information and assistance in applying for a variance, contact the nearest OSHA office.
Variances are not retroactive. An employer who has been cited for a standards violation may not seek relief from that citation by applying for a variance. However, the fact that a citation is outstanding does not prevent an employer from filing a variance application.
OSHA continually reviews its standards to keep pace with developing and changing industrial technology. Therefore, employers and employees should be aware that, just as they may petition OSHA for the development of standards, they may also petition OSHA for modification or revocation of standards.