2006 Conference General Sessions

SAFETY REGULATIONS AS POTENTIAL BARRIERS TO EMPLOYMENT IN A MANUFACTURING ENVIRONMENT


Scott Haynes
Georgia Tech - CATEA
490 10th Street, NW

Atlanta
Georgia
30332
USA
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 NAM is 1ot, “a lack of employees, but a shortfall of highly qualified employees with specific educational backgrounds and skills.”
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?

ADA vs. WORKER SAFETY IN THE COURTS
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. Murray, a forklift operator was fired following a company-mandated medical screening for all forklift operators. The company’s policy stated that workers with certain diagnosed medical conditions, including insulin dependant diabetes, would be prohibited from departing a forklift. The company held that, “the operation of forklifts in this particular plant by persons with specific medical conditions, such as insulin—dependent diabetes, posed a hazard likely to cause death or serious physical harm to its employees.” The company therefore determined that they were obligated, under the GDC to take steps to eliminate the potential hazard. In this case the court ruled that the GDC could only be used to preclude an individual from a specific type of employment if an elevated risk of a direct threat can be proven for the individual in question and not merely based on their medical diagnosis (“EEOC v. Murray”, 2001)
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 ADA purposes” (“Albertson’s v. Kirkingburg”, 1999) . This supports the importance of understanding the applicable federal safety and health regulations when seeking employment opportunities for people with disabilities in a manufacturing environment.

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 America Competitive —— How a Talent Shortage Threatens U.S.
Manufacturing (White Paper) . Washington, D.C. National Association of Manufacturers, The
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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