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Safety Law Occupational Safety & Health Guide Series Series Editor: Thomas D Safety Law Occupational Safety & Health Guide Series Series Editor: Thomas D. Schneid Eastern Kentucky University Richmond, Kentucky PUBLISHED TITLES Motor Carrier Safety: A Guide to Regulatory Compliance E. Scott Dunlap Occupational Health Guide to Violence in the Workplace Thomas D. Schneid Physical Hazards of the Workplace, Second Edition Barry Spurlock Physical Security and Safety: A Field Guide for the Practitioner Truett A. Ricks, Bobby E. Ricks, and Jeffrey Dingle Safety Performance in a Lean Environment: A Guide to Building Safety into a Process Paul F. English Security Management: A Critical Thinking Approach Michael Land, Truett Ricks, and Bobby Ricks Security Management for Occupational Safety Michael Land Workplace Safety and Health: Assessing Current Practices and Promoting Change in the Profession Thomas D. Schneid Safety Law: Legal Aspects in Occupational Safety and Health Thomas D. Schneid FORTHCOMING TITLES Safety and Human Resource Law for the Safety Professional Thomas D. Schneid Human Resources & Change Management for Safety Professionals Thomas D. Schneid and Shelby L. Schneid Safety Law Legal Aspects in Occupational Safety and Health Thomas D. Schneid CRC Press Taylor & Francis Group 6000 Broken Sound Parkway NW, Suite 300 Boca Raton, FL 33487-2742 © 2018 by Taylor & Francis Group, LLC CRC Press is an imprint of Taylor & Francis Group, an Informa business No claim to original U.S. Government works Printed on acid-free paper International Standard Book Number-13: 978-0-8153-5496-3 (Hardback) This book contains information obtained from authentic and highly regarded sources. Reasonable efforts have been made to publish reliable data and information, but the author and publisher cannot assume responsibility for the validity of all materials or the consequences of their use. The authors and publishers have attempted to trace the copyright holders of all material reproduced in this publication and apologize to copyright holders if permission to publish in this form has not been obtained. If any copyright material has not been acknowledged please write and let us know so we may rectify in any future reprint. Except as permitted under U.S. Copyright Law, no part of this book may be reprinted, reproduced, transmitted, or utilized in any form by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying, microfilming, and recording, or in any information storage or retrieval system, without written permission from the publishers. For permission to photocopy or use material electronically from this work, please access www. copyright.com (http://www.copyright.com/) or contact the Copyright Clearance Center, Inc. (CCC), 222 Rosewood Drive, Danvers, MA 01923, 978-750-8400. CCC is a not-for-profit organization that provides licenses and registration for a variety of users. For organizations that have been granted a photocopy license by the CCC, a separate system of payment has been arranged. Trademark Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Visit the Taylor & Francis Web site at http://www.taylorandfrancis.com and the CRC Press Web site at http://www.crcpress.com Contents Foreword ..................................................................................................................vii Preface.......................................................................................................................ix Acknowledgements ...................................................................................................xi Overview ................................................................................................................ xiii Authors ....................................................................................................................xix Chapter 1 Constitution of the United States and Constitutional Law ...................1 Chapter 2 Federal Court System ......................................................................... 43 Chapter 3 The Court Process and Procedures ....................................................57 Chapter 4 State Courts ........................................................................................67 Chapter 5 Criminal Law ..................................................................................... 81 Chapter 6 Civil Liability ................................................................................... 101 Chapter 7 Case Law ..........................................................................................125 Chapter 8 Administrative Law .......................................................................... 133 Chapter 9 Occupational Safety and Health Act ................................................ 149 Chapter 10 OSHA Standards and Enforcement .................................................. 159 Chapter 11 Occupational Safety and Health Review Commission (OSHRC) ........173 Chapter 12 OSHA Defenses ............................................................................... 217 Chapter 13 Evidence and OSHA’s Variances .....................................................223 Chapter 14 Workers’ Compensation ................................................................... 231 Chapter 15 Americans with Disabilities Act ......................................................249 Appendix A: Occupational Safety And Health Act Of 1970 ............................267 Appendix B: Selected State Laws ....................................................................... 311 Index ...................................................................................................................... 415 v Foreword Law, Society and Interpretation of Rules… All of these elements are critically import- ant to our community today, and in the future. I first met Dr. Tom Schneid in the 1980s, when OSHA was a young field, and maturing day by day. The study of Occupational Safety and Health, including the case law, is critical to improving the safety of our community as a whole. As you read Tom’s latest book, understand that OSHA in and of itself does not keep us safe, YOU do as part of your chosen safety profession. As I was taught many years ago, when I was a Special Government Employee for OSHA during my VPP work, we must observe, listen, learn, and apply our skills, knowledge, and understanding of improvement of safety and health. I have been a safety practitioner since the 1970s. My career has been in general industry, construc- tion, and government operations. I was a federal safety officer at the Oklahoma City bombing in 1995 as well as at the World Trade Center Attacks in New York City in 2001 for over 100 days. OSHA was formed in 1971 and has been providing guidance and support since its inception. These cases are critical to your understanding and application of OSHA. As you read this text, understand that you have the opportunity to view and apply decades of guidance and interpretation. We did not have that luxury when I started my safety career in the beginning when OSHA was in its infancy. It is important to note that OSHA standards are not the ceiling or the epitome of your program, but merely a starting point. They are Minimums, and that your programs must be con- stantly evolving. In the study of OSHA law, precedent setting decisions are done differently than in Civil and Criminal cases. OSHA cases are adjudicated via an administrative process that differs. The study of these cases are critical elements to assist in your under- standing of OSHA. Our desire for you is to fully immerse yourself in the study, interpretation, and application of what you will learn here. I have had the honor of working with and for Dr. Schneid for nearly four decades and learn every day. I applaud you for taking this next step in your career … Never stop learning … Explore new ideas…. Look for new methods. Devote yourself to being a lifelong learner. Be safe, make a difference, and make safety your first priority. Michael J. Fagel, PhD, CEM Mike Fagel is an instructor in the Eastern Kentucky University Safety-Security- Emergency Management programs. He also teaches at the Illinois Institute of Technology, the National Center for Biomedical Research and Training at LSU, Northern Illinois University, and Aurora University. Fagel has authored numerous textbooks, and his latest book on Crisis Management earned textbook of the year from ASIS. His latest book on Soft Targets, Crisis Management has been adopted at several Homeland Security training programs at several universities. He can be reached at [email protected]. vii Preface We live in a litigious and regulated society. Safety professionals are employed by corporations and other entities to not only manage inherent and created risks in the workplace in a proactive manner but also to manage the risks created through regulation and litigation. Legal and regulatory risks for corporations and individ- uals within the realm of safety and health have increased substantially over the past decades including, but not limited to, increased monetary penalties by the Occupational Safety and Health Administration (OSHA) and increased civil and criminal penalties under federal and state laws. Safety professionals today face a myriad of potential risks within the legal realm virtually each and every day on the job. Safety professionals must not only be knowledgeable in the methods of mini- mizing or eliminating
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