SAFETY REGULATIONS AS
POTENTIAL BARRIERS TO EMPLOYMENT IN A MANUFACTURING ENVIRONMENT
Scott Haynes
30332
Day Phone: 404.094.9156
Fax: 404.894.9320
Email: scott.haynes@coa.gatech.edu
PowerPoint presentation outlining OSHA regulations and enforcement procedures.
Potential barriers, court cases, and proposed work efforts, concerning people
with disabilities in manufacturing, will be discussed.
In spite of recent layoffs there is a recognized need in manufacturing for
skilled machine operators. This need arises from a combination of factors
including; the aging “baby boomer” generation, the increased complexity of the
manufacturing equipment, and the lack of interest among today’s young workers
to pursue a career in manufacturing. The National Association of Manufacturers
(NAM) predicts a shortage of up to 6 million skilled manufacturing workers by
the year 2010 (Eisen, 2003) .
The problem, as stated by
Industry experts agree that the use of automated technology in today’s
manufacturing facilities can reduce the physical and/or sensory requirements of
the machine operator (Sun, 2000) . Many systems
operate using standard personal computer operating system platforms such as
Microsoft® Windows. Given the advances in today’s assistive technology
industry, related to computer access, this trend toward computer controlled
machines opportunities for employment of people with disabilities in
manufacturing. However, unlike many other work environments in which computers
abound, occupational
hazards in manufacturing have the potential for serious safety and health
consequences.
The Federal government has established safety regulations that must be followed
by all employers. Vocational rehabilitation (VR) professionals seeking to
develop employment opportunities in manufacturing must be aware of the
regulatory burden placed on these employers. Successful applicants with
disabilities must demonstrate that they are able to handle the functional
requirements of the job within the established occupational safety and health
regulatory framework. This presentation will provide a brief overview of the
Occupational Safety and Health Administration’s (OSHA’s)
regulation and enforcement structure. The presenter will demonstrate the
potential for barriers to employment of people with disabilities and provide
examples of federal court rulings relating to the employment of people with
disabilities in various manufacturing occupations. Based on the information
presented, suggestions for future work will also be discussed.
OSHA
BACKGROUND
The Occupational Safety and Health Act (OSH Act) was signed into legislation in
1970 (“OSH Act”, 1970) . The OSH Act established three
agencies that work to meet its stated goals:
the Occupational Safety and Health Administration (OSHA), the National
Institute for Occupational Safety and Health (NIOSH), and the Occupational
Safety and Health Review Commission (OSHRC) . In
brief, OSHA sets and enforces the safety and health standards, NIOSH conducts
research on safety and health issues in the workplace, and the OSHRC oversees
appeals made by employers against enforcement actions (Fleming, 2001)
OSHA enforces compliance with identified standards by inspecting worksites for
safety and health hazards. Worksites are prioritized for inspection based on
the severity and imminence of the risk. The Compliance Safety and Health
Officer will document any hazards observed in the workplace and issue citations
informing the employer of the standards with which he or she is not in
compliance, the amount of time the employer has in which to correct the
noncompliance, and the proposed penalties associated with the citation.
(USD-OSHA, 1994) Penalties for first—time noncompliance can reach up to $7,000
per violation. The fine increases to as much as $70,000 per violation if it is
considered to be a willful or a repeated violation. Furthermore, criminal
willful violations, i.e., willful violations that result in the death of an
employee, can bring fines of up to $250,000 for an individual employer or up to
$500,000 for a corporation.
The standards referenced by OSHA compliance officers are available on—line at
www.osha.gov and cover a broad range of occupational equipment and settings.
When no standards are in place specifically explaining a safety procedure,
employers must still comply with the General Duty Clause (GDC) found in Section
5(a) (1) of the OSH Act. The GDC states that the employer must, “furnish to
each of his employees employment and a place of employment which are free from
recognized hazards that are causing or are likely to cause death or serious
physical harm to his employees.” Under the GDC, recognized hazards can be
identified in three ways:
1. The employer’s industry recognizes it as a hazard,
2. The employer recognizes it as a hazard, or
S. Any reasonable person would recognize it as a hazard.
According to OSHA’s Field Inspection Reference Manual
(FIRM) this third condition is also termed “Common-Sense Recognition.”
Common—sense recognition of the hazard is only used in flagrant cases where
industry recognition or employer recognition cannot be established (USDoL-OSHA, 1994) . Unfortunately,
the term “common—sense” suggests a level of understanding about a topic among
the general population, which does not always exist when dealing with issues of
disability.
POTENTIAL
BARRIERS
Employment of people with disabilities often requires the presence of an
accommodation to the equipment or workspace. Employers must expend resources to
perform job hazard analyzes to explore the possible effects of each
accommodation. If the accommodation creates new hazards, those must be
addressed before any change can occur. Then there is the concern that following
standard practices may still lead to a citation under the GDC. For example,
OSHA standard 1910.21 (a) (1) defines a “Floor hole” as, “an opening measuring
less than 12 inches hut more than 1 inch in its least dimension.. .“ Whereas, the Americans with
Disabilities Act Accessibility Guidelines (ADAAG) requires in section 4.5.4
hat, “If gratings are located in walking surfaces, then they shall have spaces
no greater than inch in one direction.” If a manufacturing employer
hires a manual wheelchair user, might they be cited under the GDC if their
floor grates are i of an inch?
Even with the best of intentions, conflict may arise when trying to meet
requirements of
safety regulations and the Americans with Disabilities Act (ADA) . The following Supreme
Court cases are examples of such conflicts. -
In the 2001 U.S. Supreme Court case of EEOC v.
In the 1999 U.S. Supreme Court case of Albertson’s v. Kirkingburg a truck
driver was fired for failing to meet minimum Federal DOT vision standards. The
court found in favor of the company stating that, “Federal laws such as DOT’s
visual acuity standards might be critical in determining whether a plaintiff is
a ‘qualified individual with a disability’ for
OPPORTUNITIES
FOR FUTURE WORK
R professionals must understand the regulatory requirements for work in
manufacturing facilities in order to develop opportunities for employment.
Further research by VR professionals, related to accommodation of people with disabilities
in manufacturing environments, is necessary to identify the appropriate
accommodations in light of these regulations.
In order to minimize the potential for safety and health violations, VR
professionals should seek ways to help educate prospective manufacturing
employers regarding the abilities of people with disabilities. The VR
professional may also seek to participate in the development of training
materials and consensus standards employed by OSHA. By carefully considering
the wording used in existing standards and regulations, improvements may be
made to ensure equal access to protection and training for employees with
disabilities.
References
Albertson’s, Inc., Petitioner v. Hallie Kirkingburg
(Supreme Court of. .the United States 1999)
Eisen, P. (2003) . Keeping
Manufacturing (White Paper) .
Manufacturing Institute, and Deloitte & Touche.
Equal Employment Opportunity Commission, Petitioner v. Marray,
Inc. and International Union UAW Local (United States District Court for the
Middle District of Tennessee, Nashville Division 2001)
Fleming, 5. (2001, Spring) . OSHA at 30: Three Decades
of Progress in Occupational Safety and Health. Job Safety and
Health Quarterly, 12, 23—32.
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