OSHA questions

[CEDEng]

...as always, if there's a clear-cut article somewhere (on this forum or elsewhere) I will accept it
gracefully, but I'm just about googled out at this point, so here goes:

Hypothetical Scenario:

You're a builder of machines (picture robots or conveyors and the like...)

The machine is broken, and you're sent to fix it.

According to OSHA,
1) Whose safety policies must you follow? The factory you are in? Or the factory your paycheck comes from?
2) What if the factory is not in the USA?
3) What if the policies are contradictory?

In other words - if your boss doesn't insist on safety shoes here (even though he should), so you don't wear them in Mexico, whose fault is it?

Something more serious - live electrical work - your boss mandates insulated tools here, but you lose your luggage, so you do hot work without them in France...whose butt is on the line, per OSHA?

My interpretation is - your boss is responsible in all these scenarios - but I could be wrong.

(I'm not talking about the superfine points of "should have known," etc. - I just mean an overall broad view of things...)

Thoughts?

 

[GoldDigger]

...as always, if there's a clear-cut article somewhere (on this forum or elsewhere) I will accept it
gracefully, but I'm just about googled out at this point, so here goes:

Hypothetical Scenario:

You're a builder of machines (picture robots or conveyors and the like...)

The machine is broken, and you're sent to fix it.

According to OSHA,
1) Whose safety policies must you follow? The factory you are in? Or the factory your paycheck comes from?
2) What if the factory is not in the USA?
3) What if the policies are contradictory?

I think that item 1 has the clearest answer:
A. The customer in whose facilities you are working has a safety policy. That applies to all work being done in the facility by employees, contractors and subcontractors. If you are employed by a vendor, it is likely that the customer policy does not apply to your work since there is no contract between them and your employer. If there is a service contract for the equipment, the answer may change.
B. You are always covered by the safety policy of your employer when you are working on their behalf, regardless of the location. That said, your company safety policy may (but is not likely to?) have explicit provisions for work done "off site" on their behalf.

For 2, I cannot say whether OSHA would have any jurisdiction over work done for a US employer outside the US. The employer's safety policy may be worded to cover all work regardless of location.

 

[petersonra]

2) What if the factory is not in the USA?

This question is relatively easy to settle.

29 U.S. Code § 653 - Geographic applicability; judicial enforcement; applicability to existing standards; report to Congress on duplication and coordination of Federal laws;...rights, duties, or liabilities of employers and employees unaffected

(a) This chapter shall apply with respect to employment performed in a workplace in a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Trust Territory of the Pacific Islands, Lake Island, Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act [43 U.S.C. 1331 et seq.], Johnston Island, and the Canal Zone. The Secretary of the Interior shall, by regulation, provide for judicial enforcement of this chapter by the courts established for areas in which there are no United States district courts having jurisdiction.

 

[petersonra]

3) What if the policies are contradictory?

Safety policies are often written with a proviso that if multiple policies apply and are in conflict the most stringent policy should be followed.

 

[GoldDigger]

This question is relatively easy to settle.

All that tells us is whether or not OSHA requires the employer to have a safety policy applicable to such work.
Once the company has established a safety policy which is OSHA compliant, OSHA has no authority over whether or not that policy, as written, as a matter of contract law, is applicable outside the US and territories. OSHA simply will not be involved in enforcing it in those cases.

 

[CEDEng]

wow - I look forward to more input - this is not what I expected to see...

I'll rephrase one part - this doesn't change my question, just another example:

I'm working in, say, Egypt. I get injured because I am not wearing my steel toes. I'm not wearing them because my boss (here in the USA) does not have
a steel-toe policy, and the plant I am in doesn't have one either. The nature of my work says my boss SHOULD have such a policy, but let's say he's an OSHA slacker, and, so, we don't. (Insert LOTO, insulated tools, PPE, etc., here, anything at all that my boss SHOULD train me in but doesn't.)

Will OSHA fine him? Will I win my claim against my boss that his policies were inadequate? (Even though I am a) in a place where no such policy exists, and b) in a place where OSHA can't be enforced...)

While I concede to the jurisdiction of OSHA as listed above, I also present that my boss's jurisdiction - and so his responsibility - is worldwide.
(I'm not making that last bit up - that's actually the heart of my premise...)

 

[petersonra]

All that tells us is whether or not OSHA requires the employer to have a safety policy applicable to such work.
Once the company has established a safety policy which is OSHA compliant, OSHA has no authority over whether or not that policy, as written, as a matter of contract law, is applicable outside the US and territories. OSHA simply will not be involved in enforcing it in those cases.

The OP asked "According to OSHA, ...". The "according to OSHA" answer is what I gave him. As for whether a contract made in the US can be enforced overseas, that is a legal question and not a simple one to be answered by amatuer lawyers.

 

[CEDEng]

Small adder:

NFPA70e 110.1.I(2)

Field work should be audited...to verify..the procedures are being followed.

This kinda sounds like the "local" policies - established by my boss - must be adhered to wherever I am, and that a failure to follow them is probably
ultimately my boss's problem.

 

[petersonra]

wow - I look forward to more input - this is not what I expected to see...

I'll rephrase one part - this doesn't change my question, just another example:

I'm working in, say, Egypt. I get injured because I am not wearing my steel toes. I'm not wearing them because my boss (here in the USA) does not have
a steel-toe policy, and the plant I am in doesn't have one either. The nature of my work says my boss SHOULD have such a policy, but let's say he's an OSHA slacker, and, so, we don't. (Insert LOTO, insulated tools, PPE, etc., here, anything at all that my boss SHOULD train me in but doesn't.)

Will OSHA fine him? Will I win my claim against my boss that his policies were inadequate? (Even though I am a) in a place where no such policy exists, and b) in a place where OSHA can't be enforced...)

OSHA just does not enforce labor safety rules in Egypt so no OSHA fines for safety violations that occur there.

While I concede to the jurisdiction of OSHA as listed above, I also present that my boss's jurisdiction - and so his responsibility - is worldwide.
(I'm not making that last bit up - that's actually the heart of my premise...)

Your employer may have some moral or ethical obligation to do his best to ensure your safety where you are working on his behalf, even if OSHA cannot and does not require it due to your geographical location when doing the work. Incidentally, does your health insurance cover you when you are in Egypt? How about medical flights back home after an accident? these are things you should know before you go to egypt to work on something for your boss who does not seem to give a rat's ass whether you live or die.

 

[Jraef]

None of us are lawyers (as far as I know), so ultimately, what we think may not be worth a hill of beans. But, MY employer has a very comprehensive safety policy and I was required to sign it as a condition of employment, and I have to sign it again every year after reviewing it again (legally it's only every 3 years max, but I think they don't want to try to keep track of everyone's anniversaries). In that policy, we are forbidden from performing work entailing exposure to electrical hazards unless qualified, by OUR process, to do so, including all PPE requirements set out in OUR policies. This applies to ANYWHERE we work and because we have facilities and customers in other countries, it expressly says anywhere in the world, regardless of differences in local requirements. So for me, it's clear cut, no ambiguity. I can literally lose my job if I get caught violating our safety policies in Mexico, Egypt, or New Jersey.

Per your Egypt scenario, if your employer didn't have a safety shoe requirement, and the Egytian company didn't either, and you got your toes chopped off and you sued your employer, a lawyer might be able to successfully argue that you were out of the jurisdiction in which the OSHA rules applied so there was no gross negligence and you get nothing. But the next day, OSHA could waltz in and fine, shut down or even arrest your employer just for not HAVING a safety policy that protects their workers, because although it may not have applied in Egypt anyway, it was exposed in court that the minimum safety requirements of your employer were not up to OSHA standards. Everybody loses (except the lawyers of course).

 

[CEDEng]

Appreciate the info, everyone - my scenarios are hypothetical, and in some of these examples, I AM the boss, so it's not about the boss not caring - it's the opposite of the boss not caring.

What I'm trying to is establish if our workplace policies HERE apply EVERYWHERE, and to violate them on the road is the same as violating them here, whether or not OSHA is involved.

But OSHA does insist we have a safety policy in place.

More practically - I have some renegade service techs who insist they are In The Clear as long as they adhere to the local policies. I believe that to be incorrect - but I'm having a hard time finding real proof of that.

 

[GoldDigger]

Appreciate the info, everyone - my scenarios are hypothetical, and in some of these examples, I AM the boss, so it's not about the boss not caring - it's the opposite of the boss not caring.

What I'm trying to is establish if our workplace policies HERE apply EVERYWHERE, and to violate them on the road is the same as violating them here, whether or not OSHA is involved.

But OSHA does insist we have a safety policy in place.

More practically - I have some renegade service techs who insist they are In The Clear as long as they adhere to the local policies. I believe that to be incorrect - but I'm having a hard time finding real proof of that.

You are the boss, and so whatever you set up as company safety policy is binding on your employees as a condition of their employment.
Any penalties for violating that safety policy are yours to establish, although it would be considerate to tell your employees in advance if they are particularly drastic, like termination of employment.
If there are other parties to the contract, such as a union, it gets more complicated.

 

[petersonra]

Appreciate the info, everyone - my scenarios are hypothetical, and in some of these examples, I AM the boss, so it's not about the boss not caring - it's the opposite of the boss not caring.

What I'm trying to is establish if our workplace policies HERE apply EVERYWHERE, and to violate them on the road is the same as violating them here, whether or not OSHA is involved.

But OSHA does insist we have a safety policy in place.

More practically - I have some renegade service techs who insist they are In The Clear as long as they adhere to the local policies. I believe that to be incorrect - but I'm having a hard time finding real proof of that.

As the boss you have the power to make whatever rules you see fit, even if they exceed the bare minimum requirements of where an employee might be physically working.

 

[Jraef]

You are the boss, and so whatever you set up as company safety policy is binding on your employees as a condition of their employment.
Any penalties for violating that safety policy are yours to establish, although it would be considerate to tell your employees in advance if they are particularly drastic, like termination of employment.
If there are other parties to the contract, such as a union, it gets more complicated.

As the boss you have the power to make whatever rules you see fit, even if they exceed the bare minimum requirements of where an employee might be physically working.

To chime in on these points, from an OSHA standpoint, YOU as the boss are required to have a policy, review the policy and ensure that your employees know and review the policy periodically. What they do when you are there hovering over them is at their own risk and the risk of the people where they work. In other words if YOU have the policy and THEY sign off on having been trained in it, if their toes get chopped off in Egypt because the Egyptians had no safety shoe requirement, that's their problem. YOU had one and they chose to violate it. Just don't acknowledge that you know they are violating it and don't care. Stick to your policy statement.

 

[CEDEng]

as luck would have it, a relevant situation is happening as we type...

we're having some remodeling done here at the office - so the builders are here doing some roof work.

they are not wearing fall protection. (It's high, dangerous work, and I am certain they should not be walking around nonchalantly 30 feet above the concrete.)

So...
1. We have no such "fall" policy here - no one does that kind of work, so our "local" policy cannot apply. (Whether we SHOULD have one is a different topic.)
2. Certainly his company has a policy about this. They're roofers, for God's sake.
3. If he falls and breaks his neck, who is OSHA going to interview?

Answer: Not us. His boss is responsible for him wherever he goes.

Is it his boss's fault he didn't follow policy? Maybe. Do they review it annually? Is there a clear procedure in place for violators? Do they violate it daily, and the boss has seen this "onsite" and said nothing?

Just "having" a policy written down is, apparently, not adequate. It needs trained, taught, followed and enforced - and all of that is the boss's problem, wherever in the world the employee goes.

Just saying, "Well, he knew the policy and didn't follow it," is not gonna get it.

Now, I am not a lawyer. I would love to hear from someone who has either been in this situation (and the resolution) or someone who knows if my description is accurate. We can all speculate and theorize, but I'm
hoping an OSHA expert will swing by...

 

[wtucker]

3. If he falls and breaks his neck, who is OSHA going to interview?

Answer: Not us. His boss is responsible for him wherever he goes.

WRONG! OSHA is going to interview EVERYBODY and read the contracts. Under OSHA's multi-employer policy, if the roofer's working for you, you become citable as the controlling contractor. You have a responsibility for ensuring that your contractors obey the law. The question isn't whether so-and-so had a policy, the question is whether they obeyed the regulations. Working unprotected 30 ft. above concrete is a violation.

If you are not the general contractor who hired the roofer, it doesn't end there. Although Workers' Comp is the "exclusive remedy" for employees, the next question is whether your company wants to be sued by the deceased's survivors. (Whether or not you'll win is irrelevant, because defending against the suit is an expense in itself, even if the expense is initially borne by the insurance company.)

Finally, does your company want the local TV station camped out in front of your building while emergency services remove the corpse and OSHA investigates.

OSHA may be the least of your problems.

 

[mpoulton]

OSHA's jurisdiction is based on the location of the workplace/accident, not the location of the employer. If an employer is in the USA but the workplace where an accident occurs is outside OSHA's jurisdiction (Egypt, for example), then OSHA will not be involved. If a foreign employer has workers operating in the USA, then OSHA will have jurisdiction over those operations even though the employer is not based here. An employer can enforce whatever safety rules it wants, in any jurisdiction, as a condition of employment. A facility can also require employees of contractors to follow its own safety rules. The workers must then follow both their own employer's rules and also the facility's rules. If they conflict with each other (so that it is impossible to satisfy both sets of rules at once), then the contractor and facility owner would need to agree on a solution to that problem. The law alone won't resolve that dispute. Regardless of whose rules were followed, the employer is on the hook to ensure that the policies meet OSHA minimum requirements if the work is being done within OSHA's jurisdiction (USA and its territories).

Now, with all of that said, OSHA appears to be attempting to assert jurisdiction over some foreign activity by American workers employed by American companies. Several sources (including the actual statutes defining OSHA's jurisdiction) strongly indicate that OSHA should not have jurisdiction over any activity outside the USA. Even OSHA issued an opinion in 1999 which explicitly said they don't cover foreign jobsites. But then in 2012 they asserted jurisdiction in exactly that situation. I have not done the detailed research to determine what the basis for that position was, or what the outcome has been - I'd need to be working for an actual client to spend the time on that!


I am a lawyer, but this is not a formal legal opinion and is not intended as legal advice for anyone to rely on. This is just a hypothetical internet discussion.