- Employees or their representatives have a right to request an inspection of a workplace if they believe there is a violation of a safety or health standard, or if there is any danger that threatens physical harm, or if an imminent danger exists.[1]
- By putting in place procedures to counteract imminent dangers, Section 13(a) of the Occupational Safety and Health Act of 1970 indirectly defines “imminent danger” as “… any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death of serious physical harm immediately or before the imminence of such danger can be eliminated through enforcement procedures otherwise provided by this Act.”
Filing a Complaint
The Occupational Safety and Health Act of 1970 (“Act”) was enacted to give employees more rights when it comes to safety at their workplace. The Act has both helped employees avoid dangerous work conditions all over the country and held employers accountable for maintaining dangerous work conditions. The Act allows any employee or their representative to file a complaint with the Occupational Safety & Health Administration (“OSHA”), to report a violation of a safety or health standard in the work place. Further, any employee or their representative can file a complaint with OSHA if they believe there is a danger that threatens physical harm, or if an imminent danger exists. Over time the process of filing a complaint has become simplified as the form can be downloaded online and either mailed or faxed in. Moreover, OSHA has a hotline (1-800-321-OSHA) that employees or their representatives can call to get additional information about a complaint.
Imminent Danger
One area of confusion within the Act is what qualifies as an “imminent danger?” When enacted, congress failed to define what it meant by imminent danger,” leaving it up to the process to determine what qualifies. However, the Act itself does illustrate certain procedures to counteract imminent dangers. Specifically, Sec. 13 of the Act allows a United States District Court, “upon petition to the Secretary, to restrain any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through enforcement procedures otherwise provided by [the] Act.” As such, the procedures to counteract imminent dangers indirectly defines what an imminent danger is. The requirements spelled out for a District Court to Act are:
- Petition must be made to the secretary;
- Conditions or practices in a place of employment;
- The dangerous conditions or practice could reasonably be expected to cause death or serious physical harm
- The dangerous conditions will cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through other enforcement procedures provided by the Act.
On OSHA’s website,[2] OSHA provides further insight on other requirements that must be met before a hazard becomes an imminent danger, they include:
- There must be a threat of death or serious physical harm.
– “Serious physical harm” is defined as a part of the body is damages so severely that it cannot be used or cannot be used very well.
- For a health hazard there must be a reasonable expectation that toxic substances or other health hazards are present and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.
– Harm caused by the health hazard does not have to be immediate harm.
- A threat must be immediate or imminent and one must believe that death or serious physical harm will happen in a short time.
– More specifically, before OSHA can investigate the matter.
In summary, a hazard in or on a place of employment will be considered an imminent danger if there is reasonable belief that the hazard will pose an immediate risk of death or serious physical harm. Both employees and employers can benefit by understanding the purpose of OSHA and knowing how to spot hazardous conditions.
Written by*:
Jorge Mares
WATTS GUERRA LLP
4 Dominion Drive, Bldg 3, Suite 100
San Antonio, Texas 78257
Phone (210) 447-0500
Email: jmares@guerrallp.com
*This information is provided to supply relevant information concerning OSHA, and should not be received as legal advice. Legal advice is only given to persons or entities with whom Watts Guerra LLP has established an attorney-client relationship. Available remedies vary from case to case and depend on the underlying facts of each. If you have another lawyer, you should consult with your own attorney, and rely upon his or her advice, rather than the information contained herein.
© Watts Guerra LLP 2015
[1] https://www.osha.gov/as/opa/worker/complain.html
[2] https://www.osha.gov/as/opa/worker/danger.html
