Safety Committee Basic Training

The Oregon "General Duty Clause" As detailed in the Oregon Revised Statutes (ORS), known as the Oregon Safe Employment Act OSEAct 654.010 (below) the employer is assigned responsibility and held accountable to maintain a safe and healthful workplace. It should be noted that the general duty provisions are used only where there is no rule that applies to a particular hazard.

ORS Chapter 654 — Occupational Safety and Health SAFETY AND HEALTH CONDITIONS IN PLACES OF EMPLOYMENT 654.010 Employers to furnish safe place of employment. Every employer shall furnish employment and a place of employment which are safe and healthful for employees therein, and shall furnish and use such devices and safeguards, and shall adopt and use such practices, means, methods, operations and processes as are reasonably necessary to render such employment and place of employment safe and healthful, and shall do every other thing reasonably necessary to protect the life, safety and health of such employees. [Amended by 1973 c.833 §5]

A careful read of the General Duty Clause introduces important employer accountabilities and concepts. The employer is to:

"...furnish employment and a place of employment..." - employment refers to the procedures and practices employees are required to use in the course of their work. The is accomplished through effective management controls. Place of employment refers to the workplace, itself: The safe tools, equipment, machinery, materials, workstations, and the physical environment. This is accomplished through effective engineering controls.

What must the employer do to comply with the general duty clause?

To comply with the general duty clause, in general, the court has established the following criteria:

• The employer must keep the workplace free of a hazard to which employees of that employer were exposed. A Hazard To Which Employees Were Exposed. A general duty citation must involve both a serious hazard and exposure of employees. A hazard is a danger which threatens physical harm to employees: One capable of causing or likely to cause death or serious physical harm.

  
  ORS 654.010 does not mandate a particular abatement method (action taken to reduce/eliminate the hazard), but only requires an employer to render the workplace free of certain hazards by any feasible and effective means which the employer wishes to utilize. What's the difference between the hazard, itself, and the abatement method? Let's take a look:

  
  

  Employees doing sanding operations may be exposed to the hazard of fire caused by sparking in the presence of magnesium dust. One of the abatement methods may be training and supervision. The "hazard" is the exposure to the potential of a fire; it is not the lack of training and supervision.

  
  

• The hazard must be recognized. The Hazard must be reasonably foreseeable. All the factors which could cause a hazard need not be present in the same place at the same time in order to prove foreseeability of the hazard; e.g., an explosion need not be imminent.

  
  Recognition of a hazard is established on the basis of;

  • Industry recognition - A hazard is recognized if the employer's industry recognizes it.
  • Employer Recognition - Evidence of such recognition may consist of written or oral statements made by the employer or other management or supervisory personnel during or before an OR-OSHA inspection, or instances where employees have clearly called the hazard to the employer’s attention.
  • Common Sense Recognition - Used by Oregon OSHA in "flagrant cases," this theory of recognition is established when it is concluded that any reasonable person would have recognized the hazard.

  
  Let's look at this example to better understand what a recognized or foreseeable hazard is:

  
  

  If combustible gas and oxygen are present in sufficient quantities in a confined area to cause an explosion if ignited but no ignition source is present or could be present, no ORS 654.010 violation would exist. If an ignition source is available at the workplace and the employer has not taken sufficient safety precautions to preclude its use in the confined area, then a foreseeable hazard may exist. b. It is necessary to establish the reasonable foreseeability of the general workplace hazard, rather than the particular hazard which led to the accident.

  
  

• The employer employs feasible and useful methods to correct hazards. The hazard may be corrected by one or a combination of methods that are feasible, available and likely to correct the hazard. However, if OSHA proposes an abatement method that would eliminate or significantly reduce the hazard beyond whatever measures the employer has taken, a citation may be issued.

Overview of General Employer Responsibilities

ORS 654.022 details the employer's responsibility to comply with the law and to also require the compliance of all employees.

ORS Chapter 654 — Occupational Safety and Health SAFETY AND HEALTH CONDITIONS IN PLACES OF EMPLOYMENT 654.022 Duty to comply with safety and health orders, decisions and rules. Every employer, owner, employee and other person shall obey and comply with every requirement of every order, decision, direction, standard, rule or regulation made or prescribed by the Department of Consumer and Business Services in connection with the matters specified in ORS 654.001 to 654.295 and 654.750 to 654.780, or in any way relating to or affecting safety and health in employments or places of employment, or to protect the life, safety and health of employees in such employments or places of employment, and shall do everything necessary or proper in order to secure compliance with and observance of every such order, decision, direction, standard, rule or regulation. [Formerly 654.060; 1977 c.804 §35]

That's one very long sentence, isn't it! Great example of "OSHA Speak" ;-) However, This statute contains a lot of valuable information. It's important to note that the OSEAct does not provide for the issuance of citations or the proposal of penalties against employees. Employers are responsible for employee compliance with the rules. The manager, superintendent, supervisor or other person in charge or control of all or part of the place of employment is considered to be an agent of the employer.

The employer must require employees to comply with company safety rules (they must enforce safety policies and rules). Employees, therefore, are primarily accountable the employer to comply with the employer's safety rules.

For example; concerted refusals by the employees to comply with the OSEAct may result in Oregon OSHA citing the employer where the employer has failed to exercise full authority to the maximum extent reasonable, including discipline and discharge, to ensure compliance with the OSEAct.

Oregon Administrative Rule (OAR) 437, Division 1, Rule 760

OAR 437, Div 1, Rule 760 also details employer and employee responsibilities.

437-001-0760 Rules for all Workplaces. (1) Employers' Responsibilities. (a) The employer shall see that workers are properly instructed and supervised in the safe operation of any machinery, tools, equipment, process, or practice which they are authorized to use or apply. This rule shall not be construed to require a supervisor on every part of an operation nor to prohibit workers from working alone. (b) The employer shall take all reasonable means to require employees: (A) To work and act in a safe and healthful manner; (B) To conduct their work in compliance with all applicable safety and health rules;...

Five Important Employer Responsibilities

We can summarize the rules above to develop five basic manager/supervisor responsibilities and obligations. Let's take a look at these five basic responsibilities:

1. Compliance. The employer, managers, and supervisor must, of course, comply with the law. This may also be thought of as demonstrating safety leadership by example.




2. Resources. Managers and supervisors have an obligation to furnish adequate physical resources such as safe tools, equipment, and materials. They should make sure the psychosocial environment is healthful by ensuring reasonable workloads and making sure employee relations are appropriate.




3. Training. Management must instruct and train employees in safe operations. The employer is accountable to the law to effectively educate and train employees on safe procedures and practices.




4. Supervision. Managers and supervisors must oversee employee performance in safe operations. Adequate supervision may be defined as identifying and correcting hazards/behaviors before they result in injury or illness.




5. Accountability. The employer must use means to require employees at all organizational levels to comply with safety policies and rules. The employer must enforce safety rules through a system of effective accountability that includes progressive discipline.

General Employee Responsibilities

437-001-0760 Rules for all Workplaces. (2) Employees' Responsibilities. ((a) Employees shall conduct their work in compliance with the safety rules contained in this code. (b) All injuries shall be reported immediately to the person in charge or other responsible representative of the employer. (c) It is the duty of all workers to make full use of safeguards provided for their protection. It shall be a worker's responsibility to abide by and perform the following requirements: (A) A worker shall not operate a machine unless guard or method of guarding is in good condition, working order, in place, and operative. (B) A worker shall stop the machine or moving parts and properly tag-out or lock-out the starting control before oiling, adjusting, or repairing, except when such machine is provided with means of oiling or adjusting that will prevent possibility of hazardous contact with moving parts. (C) A worker shall not remove guards or render methods of guarding inoperative except for the purpose of adjustment, oiling, repair, or the setting up a new job. (D) Workers shall report to their supervisor any guard or method of guarding that is not properly adjusted or not accomplishing its intended function. (E) Workers shall not use their hands or any portion of their bodies to reach between moving parts or to remove jams, hangups, etc. (Use hook, stick, tong, jig or other accessory.) (F) Workers shall not work under objects being supported that could accidentally fall (such as loads supported by jacks, the raised body of a dump truck, etc.) until such objects are properly blocked or shored. (G) Workers shall not use defective tools or equipment. No tool or piece of equipment should be used for any purpose for which it is not suited, and none should be abused by straining beyond its safe working load. (d) Workers shall not remove, deface, or destroy any warning, danger sign, or barricade, or interfere with any other form of accident prevention device or practice provided which they are using, or which is being used by any other worker. (e) Workers must not work underneath or over others exposed to a hazard thereby without first notifying them and seeing that proper safeguards or precautions have been taken. (f) Workers shall not work in unprotected, exposed, hazardous areas under floor openings. (g) Long or unwieldy articles shall not be carried or moved unless adequate means of guarding or guiding are provided to prevent injury. (h) Hazardous conditions or practices observed at any time shall be reported as soon as practicable to the person in charge or some other responsible of the employer. (i) Workers observed working in a manner which might cause immediate injury to either themselves or other workers shall be warned of the danger. (j) Before leaving a job, workers shall correct, or arrange to give warning of, any condition which might result in injury to others unfamiliar with existing conditions.

Four basic employee responsibilities

We can also summarize basic responsibilities for employees into four general behaviors:

1. Comply with the employer's safety policies and rules. Remember, the employee is primarily accountable to the employer, not Oregon OSHA for safety performance.
2. Report injuries immediately. Employees should report all injuries, even minor ones, to a supervisor or some other employer representative.
3. Report hazards as soon as possible. Again, employees have a responsibility to report any hazards they see to a supervisor or other management representative.
4. Warning employees of about hazardous conditions and behaviors is not only required by the law, it's the right thing to do in every case.

Employer responsibilities to investigate accidents

437-001-0760 Rules for all Workplaces. (3) Investigations of Injuries (a) Each employer shall investigate or cause to be investigated every lost time injury that workers suffer in connection with their employment, to determine the means that should be taken to prevent recurrence. The employer shall promptly install any safeguard or take any corrective measure indicated or found advisable. (b) At the request of authorized Department representatives, it shall be the duty of employers, their superintendents, supervisors and employees to furnish all pertinent evidence and names of known witnesses to an accident and to give general assistance in producing complete information which might be used in preventing a recurrence of such accident. At the request of the Department, persons having direct authority shall preserve and mark for identification, materials, tools or equipment necessary to the proper investigation of an accident. (c) Any supervisors or persons in charge of work are held to be the agents of the employer in the discharge of their authorized duties, and are at all times responsible for: (A) The execution in a safe manner of the work under their supervision; and (B) The safe conduct of their crew while under their supervision; and (C) The safety of all workers under their supervision.

Fix the system...not the blame

In paragraph (a), above, the rule states that the primary purpose of the investigation process is to "...determine the means that should be taken to prevent recurrence." This means that the focus should be on determining surface and root causes first: hazardous conditions, unsafe behaviors, and the safety management program weaknesses that contributed to them. If, after an thorough evaluation by a qualified person, it is determined that no contributing factors exist, then it is appropriate to address discipline. The intent of the rule, here is for the employer to first fix the system, not the blame.

Paragraph (c), once again, designates the supervisor as an "agent of the employer," and places on him or her the responsibility to make sure that:

• Employees use established safe procedures/practices




• Employees comply with safety policies and rules.




• Employee are provided safe tools, equipment, materials, etc, and that the work environment free from the risk of serious injury.

Zero tolerance for drugs, alcohol, and horseplay at work

437-001-0760 Rules for all Workplaces. (4) Intoxicating Liquor and Drugs. The use of intoxicating liquor on the job is strictly prohibited. Anyone whose ability to work safely is impaired by alcohol, drugs, or medication shall not be allowed on the job while in that condition. (5) Horseplay. There must be no horseplay, scuffling, practical jokes, or any other activity of a similar nature.

Unsafe condition: Distraction. The strict interpretation of these two rules details the impaired ability to work safely because of the use of drugs, alcohol, medication or horseplay. Notice that these rules don't just discourage these employee choices...they forbid them.

A related "best practice" principle is that, "Any form of distraction that reduces attentive focus on work should be avoided." For example, a worker may feel pressured to perform beyond their physical capability (unreasonable workload). The negative emotion and distracted thought processes may increase the probability of an injury.

437-001-0760 Rules for all Workplaces. (6) Extraordinary Hazards. When conditions arise that cause unusual or extraordinary hazards to workers, additional means and precautions shall be taken to protect workers or to control hazardous exposure. If the operation cannot be made reasonably safe, regular work shall be discontinued while such abnormal conditions exist, or until adequate safety of workers is ensured.

An unusual or extraordinary hazard may be thought of as a hazard that is not normally expected or anticipated by the employer. When such hazards occur, it's important for the employer to carefully consider and act on how the employee is going to be protected. Usually a combination of engineering and management controls may be necessary. In these situations, it may be wise to give an Oregon OSHA consultant or insurer representative a call for help.

437-001-0760 Rules for all Workplaces. (7) Inspections. (a) All places of employment shall be inspected by a qualified person or persons as often as the type of operation or the character of the equipment requires. Defective equipment or unsafe conditions found by these inspections shall be replaced or repaired or remedied promptly. (b) Wherever required in this safety code, a written and dated report, signed by the person or persons making the inspection, shall be kept.

The greater the hazard, the more frequent the inspection

It's important that the employer adequately train supervisors and other persons so that they are qualified to conduct workplace inspections. It's also important to note that inspections are to be conducted "as often as the type of operation or the character of the equipment requires." That's a judgment call. Inspections should occur frequently for hazardous operations or when operating inherently dangerous equipment.

Who is a qualified person? A "qualified" person means one who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training and experience, has successfully demonstrated his ability to solve or resolve problems relating to the subject matter, the work, or the project.

Just a reminder: All assignments must be completed to receive credit for the course.

Module Review Quiz

55. The Oregon "General Duty Clause" is detailed in ________?

a. Oregon OSHA Statutory Rules
b. Oregon Administrative Rule 432
c. Oregon Safe Employment Act 654.010
d. Oregon OSHA OAR 437, Rule 760

56. ORS 654.010 states that employers must _________ and use such devices and safeguards, and ________ and use such practices, means, methods, operations and processes as are reasonably necessary to render safe employment and place of employment.

a. adopt, furnish
b. regulate, adopt
c. adopt, review
d. furnish, adopt

57. According to ORS 654.022, the employer must do everything necessary or proper in order to secure compliance with and observance of every order, decision, direction, standard, rule or regulation.

a. True
b. False

58. The intent of ORS 654.022 infers that employees are accountable to ____________ to obey safety rules.

a. Oregon OSHA
b. the employer
c. Workers Compensation Division
d. the Department of Consumer and Business Services

59. According to the text, each of the following activities is a general employer responsibility, except?

a. Enforcement
b. Supervision
c. Training
d. Regulation
e. Resources

60. Concerted refusals by the employees to comply with the OSEAct may result in Oregon OSHA citing the employee even when the employer has failed to exercise full authority.

a. True
b. False

61. OAR 437-001-0760(1) requires a supervisor on every part of an operation and prohibits workers from working alone.

a. True
b. False

62. According to the text, each of the following behaviors is considered a general employee responsibility, except?

a. Reporting hazards
b. Working injury free
c. Reporting injuries immediately
d. Complying with safety rules

63. According to OAR 437-001-0760(3), Investigations of Injuries, each employer investigates lost time injuries to primarily ______________.

a. determine the means to prevent recurrence
b. determine if policy and rule violations occurred
c. determine the potential claims costs
d. determine employee and manager liability

64. According to OAR 437-001-0760(7), Inspections, all places of employment shall be inspected by a qualified person or persons ___________.

a. that are certified by OR-OSHA
b. immediately prior to an OR-OSHA inspection
c. at least once a quarter
d. as of often as the type of operation requires

Answers to the quiz. Congratulations on completing this final module! If you haven't been working on the course assignments yet, now is the time to download the assignments page to draft your responses.

Once you've completed your draft responses, return to the course outline page, and click on the "Submit Assignments and Evaluation" link.

I hope the information within these eight modules as been helpful to you and I hope to see you participate in another course soon. When you're ready, submit your coursework, evaluation, and certificate information. I'll see you in a workshop or another internet course! If you have any questions or comments, just drop me an email at allen.e.freauff@state.or.us.