OSHA Turns 55 — How Has It Changed?

Workplace injury and death rates have substantially decreased since April 28, 1971, the day the Occupational Safety and Health Act (OSH Act) took effect and the federal Occupational Safety and Health Administration (OSHA) was created. 

OSHA standards like the fall protection standard for construction and the lockout/tagout standard have had “a tremendous influence on preventing accidents and deaths on a daily basis across the nation,” said Karen Tynan, an attorney with Ogletree Deakins in Sacramento, Calif. According to OSHA, there were 38 deaths a day in 1970, when the OSH Act was enacted, compared to 15 per day in 2023. 

“OSHA’s regulatory framework, including employee complaint handling and protection against retaliation, may have also contributed to the decline of unionization in the private sector since the 1970s,” said Scott Williams, an attorney with Burr & Forman in Birmingham, Ala. He pointed out that, as a result of the OSH Act, employees are legally entitled to a workplace free from recognized hazards to safety and health with or without a collective bargaining agreement.

Newsletter: Workplace Compliance

Agency’s Evolution

“Over time, standards have been developed to address specific hazards that did not seem critical in the 1970s but have become important as workforce risks and workplace safety have developed,” Tynan said.

For example, the bloodborne pathogens standard took effect in March 1992 and was intended to minimize occupational exposure to the hepatitis B virus, HIV, and other bloodborne pathogens. “Employers were required to implement exposure control plans, adopt universal precautions, offer vaccinations, and implement training,” she said. “What began as union efforts to protect health care workers had a tremendous impact in preventing communicable diseases.”

Some of the biggest initiatives in OSHA’s history, according to Jonathan Crotty, an attorney with Parker Poe in Charlotte, N.C., include:

• Development of the hazard communication standard to warn and train employees regarding chemical exposure risks.
• Regulations to limit employee exposure to hazardous substances and air contaminants.
• Development of safety standards for the construction industry.

Other standards include machine guarding, respiratory protection, and recordkeeping, Williams noted.

OSHA issues an annual list of the top 10 most cited safety standards, Crotty noted. “This list is a good guideline for where OSHA puts its enforcement resources. For years, the list has included fall protection, machine guarding, electrical hazards, and hazard communication.”

HR Q&A: What Are OSHA Standards? 

General Duty Clause

The general duty clause is like a “catch-all for everything that [OSHA] never got around to regulating or, for whatever reason, was never able to get over the finish line,” said Jason Mills, an attorney with Morgan Lewis in Los Angeles and Washington, D.C.

“Think ergonomics, for example,” he said. “OSHA tried and wasn’t able to create a standard. But that doesn’t stop them from enforcing it through the general duty clause under the theory that the employer was aware of the purported hazard and failed to address it. We see the same with heat. One of these days we may see an actual heat standard, but until then we’ll continue to see OSHA enforce heat [protections] under the general duty clause.”

Congress recognized that OSHA cannot adopt a rule for every potential hazard and gave the agency the ability to cite when the employer’s practices create an unreasonable risk of death or serious injury, Crotty said. The general duty citations require a higher degree of legal proof than ones based on safety regulations. Other examples of when OSHA has been willing to use the general duty clause include to prevent workplace violence, he added.

National Emphasis Programs

Employers also should pay attention to OSHA’s national emphasis programs, Tynan said. These temporary programs target enforcement on specific hazard and high-hazard industries. 

“Think of national emphasis programs as the movement of resources to areas of high risk and high reward,” she said. “For example, just this month, OSHA reissued the national emphasis program for both indoor and outdoor heat setting enforcement strategies and provided employer resources to address heat hazards.”

In 2023, OSHA implemented a national emphasis program, still in effect, on warehousing and distribution center operation. The program includes policies, procedures, and resources focused on inspecting warehouses and distribution centers, mail processing centers, parcel delivery companies, and high-injury-rate retail establishments. The inspections focus on powered industrial vehicle operations, material handling, walking-working surfaces, means of egress, and fire protection.

“The national emphasis programs are at the forefront of enforcement, along with response to reported fatalities and serious injuries, and investigations of complaints,” Tynan said.

Tool: What You Need to Know About OSHA

Legal Challenges

In recent years, OSHA has come under legal challenges of its ability to issue and enforce safety regulations. 

“I wonder how employers would react to a world where OSHA enforcement authority disappeared,” Crotty said. “Would we face a hodgepodge of state efforts to fill the regulatory vacuum? Would they devote the same level of resources to workplace safety if the threat of federal sanctions disappeared?”

Nonetheless, Tynan noted that despite changes in administration and leadership, OSHA is still here. “Work has changed across the country and the working population has changed, but employers are still guided by workplace safety regulations and enforcement,” she said.

Safety Culture

Employers should not view the potential of OSHA investigations and citations as the main motivation for adopting a comprehensive workplace safety program, Crotty said. “Avoiding the human cost of workplace injuries should always be the goal for employers.” The cost savings from avoiding citations, workers’ comp expenses, lost time and productivity, and employee turnover are all additional benefits from the safety program.

“OSHA enforces a multitude of specific safety standards, but what it’s looking for overall is a safety culture where employees know that safety comes first, that their well-being is a valued priority, and that there are no excuses for acting unsafely,” Mills said.