The Occupational Safety and Health Act of 1970

s of decisions are available in the following services: BUREAU OF NATIONAL AFFAIRS OCCUPATIONAL SAFETY & HEALTH REPORTER [hereinafter cited as BNA OSHR]; CCH EMPLOYMENT SAFETY & HEALTH GUIDE [hereinafter cited as CCH ESHG]; PRENTICE-HALL GUIDE [hereinafter cited as P-H LAB. REL.]. In Garden State Farms, Inc., P-H LAB. REL. 90,142, O.S.H.R.C. No. 979 (1973) two employees had violated a standard by removing a guard from a circular saw without the employer's knowledge or permission; the judge held that a brief, isolated unwarranted action by the employees without the company's knowledge wasn't a violation. In Chicago Bridge & Iron Co., P-H LAB. REL. 90,087, O.S.H.R.C. No. 609 (1973), a violation of a requirement for employees to use eye protection equipment in grinding operations was dismissed, as 19731 LOUISIANA LAW REVIEW [Vol. 34 insure that his employees comply with applicable standards, and a failure to institute procedures to insure such compliance can result in an employee's violation of a standard being found to be that of his employer as well.'" An interpretation of the Act which penalized a good faith employer for an employee's disregard of a known standard would be detrimental to its purpose by not differentiating those employers who were attempting to achieve compliance. Standards are classified as either permanent'7 or emergency,'" with emergency standards giving the Secretary a procedure by which he may respond quickly to new health and safety findings. 9 Emergency standards are designed to take effect immediately upon publication in the Federal Register if the Secretary determines that such a standard is needed to protect employees.2" An employer can seek a temporary or permanent variance from either a permanent or an emergency standard.2 ' A permanent variance requires the employer to show that he can provide a place of employment as safe as that provided by the standard,22 while a temporary variance requires a showing of inability to comply, the taking of available safety measures, and the establishment of a plan to achieve compliance.2 3 The initial standards promulgated by the Secretary consisted mainly of existing national consensus24 and federal standards.2" the employer had given out protective gear and indicated that it should be used, but the employees had disobeyed specific instructions. 16. In Irvin H. Whitehouse & Sons, Inc., P-H LAB. REL. 90,130, O.S.H.R.C. No. 1262 (1973), the company was held to be liable for letting employees work on a scaffold without approved safety lifebelts, even though they were available at the worksite. The company was obligated to insure that employees used the protective devices supplied. 17. 29 U.S.C. § 655(b) (1970). 18. Id. § 655(c). 19. S. REP. No. 1282, 91st Cong., 2d Sess. 7 (1970). 20. For example, an emergency standard for asbestos was petitioned for and granted soon after the act was enacted. Bloom, Occupational Safety and Health-It's the Law, 2 NEW ENGINEER, May, 1973, at 5. 21. The Occupational Safety and Health Administration had received 360 applications for variances from its standards by the first of March, 1973. JOB SAFETY AND HEALTH, June, 1973, at 27. 22. 29 U.S.C. § 655(D) (1970). 23. Id. § 655(B)(6). 24. These standards were developed by such organizations as the American National Standards Institute. 25. See Walsh-Healey Public Contracts Act, 41 U.S.C. § 35(e) (1970); Longshoremen's & Harbor Worker's Compensation Act, 33 U.S.C. § 941 (1970) (two examples of such legislation). Future standards may require medical examinations, labeling of hazards, monitoring employee exposure to hazards, and various types of protective clothing. Bloom, Occupational Safety and Health-It's the Law, 2 NEW ENGINEER, May, 1973, at 5.