OSHA Turns 50 Years Young
Implications of Aging Regulations for Evaluating Employer Conduct
Monday, November 9, 2020
by: Chason J. Coelho, Ph.D., CSP, CFI and Julia K. Diebol, Ph.D., CSP, C.P.S.M

Section: Fall 2020

Author Bios

Chason J. Coelho, Ph.D., CSP, CFI is a Senior Managing Scientist with Exponent. He is a human factors, technical safety, and risk management professional with experience in aviation, aerospace, on- and off-shore oil, gas, and petrochemical, marine, crane, manufacturing, and utility industries. A cognitive neuroscientist whose research focuses on human motor control, he applies a uniquely interdisciplinary expertise in cognitive and physical behavior to issues such as human error prevention, decision making, human reliability, safety in design, human-machine interfacing, and ergonomics. He addresses these and other facets of human performance in routine operations, maintenance, and emergency contexts that span both process and occupational safety.


Julia K. Diebol, Ph.D., CSP, C.P.S.M. is a Senior Scientist with Exponent. Her areas of expertise include product and occupational safety, risk communication, chemical hazard communication, and human factors. She uses her expertise to evaluate the role of warnings, instructions, risk communications, policies and procedures, standards, and regulations in safety and environmental health behaviors. Her expertise has been applied to communications in a broad range of occupational, consumer, and community settings.



The American workforce is not the only aging feature of the occupational landscape. So too is the body of regulatory standards aimed at protecting that workforce. 2020 marks the 50th anniversary of the Occupational Safety and Health (OSH) Act – the landmark worker safety and health law that created the Occupational Safety and Health Administration (OSHA). This article discusses what this regulatory aging means for cases involving occupational safety and health issues, such as product liability cases involving products used in workplace settings, premises liability cases that occur in workplaces, and motor vehicle accidents involving company vehicles.

Our perspective here is primarily one of human factors professionals with expertise in occupational safety and health, so we start with a brief review of the human factors field and how it relates to occupational and product safety in different settings.  Human factors is a scientific discipline focused on how humans interact with products, environments, processes, and other humans. Human factors professionals have a history of applying their expertise to both product and occupational safety in workplace settings.

Evaluating Employer Conduct

This section introduces the body of federal and state regulatory standards as a starting point for the evaluation of employer conduct. 

OSH Act of 1970 and State Plans

Congress passed the OSH Act to help ensure worker and workplace safety. Its goal was for employers to provide workers a place of employment free from recognized hazards to safety and health, such as excessive noise, mechanical hazards, and heat stress. Broadly speaking, the General Duty Clause of the OSH Act requires each employer to furnish to each of its employees a workplace free from recognized hazards causing or likely to cause death or serious physical harm.

The OSH Act led not only to the creation of OSHA, the federal agency responsible for administration of the OSH Act through promulgation and enforcement of mandatory regulatory standards, but also the National Institute of Occupational Safety and Health (NIOSH), the federal agency responsible for conducting research and making recommendations for the prevention of work-related injury and illness. 

The OSH Act also gives each U.S. state the option of a state plan. State plans are monitored by, and must be at least as effective as, federal OSHA. State plan regulations therefore provide another source of mandatory standards that are often used to evaluate employer conduct. However, many state agencies have regulated occupational safety and health since long before the OSH Act. For example, our home state of Washington has had a regulatory system, administered by the Washington Department of Labor and Industries, in place since 1919.1  Washington’s state plan received initial approval from OSHA in 1973.

Regulatory and Consensus Standards

OSHA promulgates mandatory regulatory standards for many occupational safety and health issues. Voluntary consensus standards, by contrast, are developed by standards organizations to address specific risks. Consensus standards are driven by committees of subject matter experts and various industry stakeholders and are non-mandatory unless a government agency adopts them by reference. OSHA has long recognized the value of consensus standards. Indeed, Congress authorized the agency to adopt certain consensus standards as OSHA regulations.

Specification- and Performance-Oriented Standards

Regulatory and consensus standards alike can be oriented mainly to specifications (specification-oriented) or mainly to performance outcomes (performance-oriented). The former provide specific methods that must be used to achieve hazard abatement goals. The latter, by contrast, provide goals but do not specify how the goals are to be achieved. Language of these performance-oriented standards tends to be vague and broad, allowing employers and employees alike greater flexibility in complying with the standard. 

Early on, OSHA tended to focus on specification-oriented standards. Employers pushed back on this approach, arguing that industries and organizations vary in size and complexity. In turn, the argument went, it makes little sense to require the exact same process of all organizations. OSHA responded by promulgating more performance-oriented regulations. Table 1 below reviews of some differences between the two.
Table 1. Differences between specification- and performance-oriented standards


Regulatory and Consensus Standards


Specify particular methods for how compliance is to be achieved Specify targets for compliance; allow companies to choose how to meet the targets
Provide detailed guidance to companies that lack programs Avoid penalizing companies with existing programs by requiring drastic changes
Intended to be revised to remain current with latest state of the art Rely on external sources of guidance to remain current with latest state of the art
Examples: Injury/Illness Reporting, Guardrail Standard Examples: Hazard Communication, Lockout/Tagout, Process Safety Management, Confined Space Entry

Early Adoption of Specification-Oriented Regulations

The OSH Act gave OSHA two years to adopt existing national consensus standards and existing federal regulations. OSHA responded by adopting a wide-range of regulations, including then-current consensus standards by the American National Standards Institute (ANSI) and the National Fire Protection Association (NFPA), as well as other standards found in existing federal regulations.3 

The initial set of OSHA regulations was specification-oriented with few exceptions. The regulations included details regarding everything from toilet facilities, to accident prevention signs, to wooden ladders. Moreover, many of the voluntary standards adopted by OSHA had been written by committees who had not intended them for regulatory settings.4  Some of the standards’ provisions, while generally thought of as useful or at least unobjectionable as voluntary standards, now seemed unnecessarily specific. Thus, detailed OSHA specification-oriented regulations were widely criticized and even lampooned in some instances.

Transition to Performance-Oriented Regulations

Some early OSHA regulations (e.g., hearing conservation and respiratory protection) required employers to develop programs to meet regulatory requirements. For example, provisions for hearing conservation programs were not detailed; OSHA simply required, “… a continuing, effective hearing conservation program” in workplaces that had sound levels exceeding specified values.5  While such performance-oriented regulations were also open to criticism as difficult to implement or enforce, they were seen as more reasonable. After the two-year period specified in the OSH Act, many of the regulations developed by OSHA were performance-oriented, with employers required to develop programs addressing issues such as exposure to certain carcinogens (1974), hazard communication (1983), process safety management (1992), and confined spaces (1993).

Addressing Aging Regulations

As its regulatory standards have aged, OSHA has found ways to promote compliance with more up-to-date voluntary standards. These ways have included encouraging employers to follow more recent versions of the voluntary standards that were adopted by reference, providing guidance and alerts for emerging hazards, compiling and communicating information on differences between OSHA regulations and recent recommendations of other agencies and organizations (e.g., NIOSH), and developing emphasis programs to provide increased inspections related to certain hazards.

OSHA has increasingly emphasized the importance of broader safety and health programs by providing recommended practices for such programs in 1989 and 2016, and establishing a Voluntary Protection Program (VPP) in 2008. OSHA has also recognized the development of voluntary standards for safety and health programs, such as ANSI/AIHA Z-10 (2012) and occupational health and safety management systems, such as OHSAS 18001 (1999) and ISO 45001 (2018).

Occupational Health and Safety Management Systems (OHSMS)

The importance of occupational health and safety management systems (OHSMS) is worth discussing in connection with employer evaluation. A generally well accepted approach to discharging employer responsibilities under General Duty Clause, and other specific OSHA requirements, is to manage risks through an administrative system. 

Multiple guidelines for these systems have been published over the past few decades. Specific elements of these guidelines have evolved over the years, and their appearance can vary with factors such as size and complexity of the organization. However, the core activities of OHSMS have remained generally consistent: (a) identify hazards and risks, (b) develop company SPAC, (c) assign roles and responsibilities, (d) equip workers to accomplish objectives, (e) implement SPAC, (f) check for completion and efficacy of SPAC, and (g) develop lessons learned. Each element of an employer’s conduct can be evaluated to understand whether and how it was appropriate or inappropriate.

An evaluator is likely to look specifically at company SPAC related to safety management and determine whether and how three basic categories are represented:
  1. Hazard Identification – involves asking whether the employer identified the safety hazard(s) in question;

  2. Risk Assessment – involves understanding whether and how the employer assessed the relevant risk(s); and

  3. Controls – involves determining whether an adequate countermeasure, or group of countermeasures, was developed and implemented to mitigate the identified hazard(s) and assessed risk(s).
The most current OHSMS standard being adopted globally is the International Organization for Standardization (ISO) 45001, Occupational Health and Safety Management Systems. This and other relevant literature provide more specific activities and examples within these three general categories useful for assessing employer conduct. A final point is that the performance-oriented nature of the ISO 45001 standard requires some expertise and experience to make a clear determination as to whether and how the employer behaved or did not behave in accordance with the standard.


The foregoing information indicates that as regulatory and adopted consensus standards have aged, input from current consensus standards and scientific literature has become more important for evaluating employer conduct in legal cases. Earlier specification-oriented standards are typically more straightforward as references for evaluating employer conduct than performance-oriented standards because the former specify particular mandatory methods of compliance. Evaluations involving the latter benefit more from the input of experts with knowledge of the various methods that could have been used to abate the hazard(s) at issue, which method or set of methods tends to be effective, and how the method or method set is affected by certain contextual factors (e.g., size of organization and industry in which it operates).

In evaluating employer conduct, it is especially useful to characterize whether and how other companies were addressing a given hazard. Such benchmarking is often difficult because companies are not predisposed to share their data. However, the experience of the right expert evaluator can help inform these benchmarking questions.

A final implication is that just barely meeting 50-year-old regulations is no longer always a safe harbor for employers. There is often more that companies must do to avoid OSHA citations and avoid being perceived as negligent in the context of legal cases. Moreover, when employers implement controls that are "beyond the regulations,” so-to-speak, it can be hard to sort through decades of Federal Register articles, interpretations, and other guidance materials to determine what things OSHA may indeed consider to be "better" than the regulations and what things it may actually consider to be "worse.”

Closing Remarks

Whether and how these issues are brought to bear inevitably depends on the specifics of the case at hand. One thing is relatively certain, however: questions will not only be asked about whether relevant regulatory specifications were satisfied but also about whether and how the conduct of those involved met other performance-oriented standards and accorded with scientific literature. Moreover, it is reasonable to expect the frequency of these sorts of questions to increase as consensus standards continue to develop and become ever more important as OSHA regulations continue to age.


1 Division of Occupational Safety & Health (DOSH), Washington State Department of Labor & Industries. (2016). Why DOSH. Available at http://wisha-training.lni.wa.gov/Training/articulate/WhyDOSH/story_content/external_files/WhyDOSH2016_Printable.pdf.
Occupational Safety and Health Administration (OSHA). (n.d.). Washington State Plan. Available at https://www.osha.gov/stateplans.
3 Occupational Safety and Health Standards; National Consensus Standards and Established Federal Standards. (1971). 36 FR 10466, et seq. May 29.
4 See, e.g., American Conference of Governmental Industrial Hygienists (ACGIH). (1988). Policy Statement on the Uses of TLVs® and BEIs®. Available at https://www.acgih.org/tlv-bei-guidelines/policies-procedures-presentations/tlv-bei-policy-statement.
29 CFR 1910.95(b)(3), as published at 36 FR 10518