Employer duties and responsibilities

Primary duty

What is the nature and extent of the employer’s primary duty to protect workers’ health and safety under the relevant legislation? How is this duty observed and interpreted in practice?

Under the Occupational Safety and Health Act of 1970 (the OSH Act), Employers must provide a safe and healthy workplace for their employees. This includes preventing serious recognised hazards, providing adequate safety training and maintaining records of work-related injuries and illnesses, among other requirements. In practice, this means that employers must monitor their operations, periodically inspect for safety hazards, communicate with their employees about potential hazards and correct hazards that they identify. Employer obligations also include day-to-day considerations, like ensuring that employees have the appropriate equipment and making sure that all such equipment is properly maintained. Employers also are required to maintain employee injury logs, which they must provide to the Occupational Safety and Health Administration (OSHA) upon request.

Third parties

Does the employer owe a duty to protect the health and safety of third parties? If so, what is the nature and extent of this duty?

As a general matter, OSHA focuses on the employer’s duty to protect its own employees, although it is now more common for one employer to be cited for hazards to which another employer’s employees were exposed. This is due to OSHA’s application of the ‘multi-employer worksite doctrine’, where different employers on a worksite can be cited for the same hazard, either as a ‘controlling’, ‘exposing’, ‘creating’ or ‘correcting’ employer. OSHA enforcement does not extend to non-workers (like customers), who are protected by other laws and an overall duty of care.

Work premises

What is the nature and extent of the employer’s duty to ensure safe work premises?

Employers have a responsibility to their employees under the General Duty Clause (section 5 (a)(1) of the OSH Act) to provide a workplace that is ‘free from recognised hazards that are causing or are likely to cause death or serious physical harm’. Employers must also comply with hazard-specific standards in the workplace as well as any applicable OSHA health and safety regulations. Requirements also typically apply to the work environment, which includes both the workplace and other places where employees are either conducting work activities or at which they are present for work-related purposes. Generally speaking, OSHA recommends that all workplaces have at least one employee trained in first aid and cardiopulmonary resuscitation, but this is not required. OSHA also has industry specific requirements for first aid. All employers are required to provide sanitary and immediately available restrooms, among other sanitation standards.

Plant and equipment

What are the employer’s duties and responsibilities regarding the provision of safe plant and equipment?

As part of their General Duty Clause obligation, US employers not only have a duty to provide employees with safe equipment, but also have a duty to ensure that all tools and equipment are safely and properly maintained. Further, OSHA has issued many regulations that impose requirements on employers on how to maintain and operate certain types of machinery and equipment. These duties and responsibilities will vary depending on what type of machinery and equipment is located at the worksite.

Work systems, training and supervision

What are the employer’s duties and responsibilities regarding the provision of safe work systems and adequate training and supervision?

Employers have several training obligations under OSHA depending on the type of workplace, type of operations and equipment present, among other factors. Generally speaking, employers must provide safety training in a way that employees can understand, including in a language that employees can understand. Employees with supervisory responsibilities also have specific obligations and are required to, ‘to the extent of their authority, furnish employees employment and a place of employment that are free from recognised hazards that are causing or are likely to cause death or serious physical harm’. Employers may also have training requirements that vary by industry and task, for example, such as requirements regarding personal protective equipment, lock-out/tag-out (control of hazardous energy), and forklifts, just to use several examples.

Accident response and reporting

What rules and requirements govern employers’ response to and reporting of workplace accidents?

Employers in the United States have obligations to prepare OSHA forms regarding certain types of workplace illnesses and injuries. Employers must keep records of serious work-related illnesses and injuries that satisfy different criteria under the OSHA recordkeeping regulations. Under this set of regulations, employers must also post annual summaries of the OSHA recordkeeping logs as well as allow certain individuals access to these logs. Minor illnesses only requiring first aid do not need to be recorded. Recorded information must be submitted to OSHA, if required, typically that occurs during an OSHA inspection. OSHA does not require reporting of near misses or close calls (defined as incidents in which an employee may have been hurt under slightly different circumstances) but does strongly encourage employers to investigate them.

Significantly, employers are required to immediately report directly to OSHA employees’ deaths (within eight hours) and promptly report work-related hospitalisations, amputations or eye loss (within 24 hours).

Risk assessments

What rules, requirements, procedures and best practices should employers be aware of when conducting occupational risk and hazard assessments?

The hazard assessment regulations can be found at 29 CFR 1910.132(d) et seq. OSHA suggests:

  • collecting information regarding any hazards;
  • routinely conducting inspections to identify hazards;
  • identifying any health hazards (as opposed to physical hazards);
  • completing investigations into any incidents;
  • identifying hazards related to emergent or otherwise nonroutine or infrequent situations and characterising the nature of all hazards identified;
  • determining interim control measures; and
  • prioritising hazards to be addressed.
Disclosure and reporting requirements

Are employers required to submit regular health and safety reports to the relevant authorities? If so, what is the nature and extent of this requirement?

Employers have several obligations regarding workplace illness and injury recordkeeping and reporting. Many employers must keep records of serious work-related illness and injury and must also post and allow certain individuals access to these logs. Minor illnesses only requiring first aid do not need to be recorded. Also, employers are obliged to report to OSHA employee deaths and serious work-related injuries or illnesses within certain time frames.

Provision of information to workers

What requirements apply regarding the provision of health and safety information to workers?

Certain information regarding workplace injuries and illnesses must be posted in the workplace, and employees and former employees must also be provided access to some of this information. Various other requirements apply to employers as well, including using signage to warn of potential hazards and posting the OSHA poster and any OSHA citations. Employers must also provide adequate training programmes and must, for example, communicate information regarding the identity of and any hazards associated with workplace chemicals.

Insurance requirements

What insurance must employers carry to cover liability for occupational health and safety risks?

There is no general requirement under the OSH Act for employers to purchase insurance coverage for occupational health and safety risks. That said, most (if not all) states in the United States do require employers to purchase workers’ compensation insurance to cover liability for occupational health and safety risks (and to provide benefits to injured employees due to work-related injuries or illnesses).

Other duties and responsibilities

Are employers subject to any other notable health and safety duties and responsibilities in your jurisdiction?

Employers should also stay abreast of the requirements related to covid-19 safety and exposure in the workplace, as the guidance and recommendations by OSHA and other federal agencies changes frequently.