The Washington Industrial Safety and Health Act: Wisha's Twentieth Anniversary, 1973-1993

• Jurisdiction: Washington,United States,Federal
• Citation: Vol. 17 No. 02
• Publication year: 1993

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 17, No. 2WINTER 1994

The Washington Industrial Safety and Health Act: WISHA's Twentieth Anniversary, 1973-1993

Alan S. Paja(fn*)

I. Introduction

Occupational safety and health did not begin in 1973 in the State of Washington. Although the historical roots of the Washington Industrial Safety and Health Act of 1973 (WISHA)(fn1) run deep, the adoption of the Act significantly affected the lives of all working men and women in the state. This Article will examine that historical perspective, covering both state and federal law, and will comprehensively detail the current law relating to occupational safety and health in the State of Washington.

Because the Washington Constitution provided specific legislative authority to address worker safety and health,(fn2) the legislature passed many laws relating to industrial safety and health that not only predated WISHA, but also provided much of its foundation.

In 1899, the legislature limited the hours that could be worked by the establishment of the eight-hour work day.(fn3) In 1901, the legislature imposed a duty on all employers to keep records related to worker safety and health by creating a Bureau of Labor, which would not only prescribe the records to be kept,(fn4) but also had the authority to enter and inspect employers' premises.(fn5)

The 1903 Factory Act mandated safeguards for equipment, ventilation, and sanitation in factories, mills, and workshops.(fn6) Later statutes added requirements for other businesses, such as coal mining(fn7) and users of compressed air,(fn8) and delegated authority to establish specific rules to an administrative agency.(fn9) The delegation specifically directed that standards "shall be guided by the most modern published studies and researches."(fn10)

An amendment to the Factory Act in 1905 granted workers the right to notify their employer of unsafe conditions and to request inspection by the Bureau.(fn11) This inspection authority included the right to issue and withhold certificates of approval.(fn12) In 1907, the authority to inspect was augmented by the power to issue stop work orders.(fn13)

The passage of a worker compensation law in 1911 added several facets to occupational safety and health.(fn14) Besides authorizing compensation to workers for job-related injuries and illnesses, the law levied on employers both general assessments based on hours worked and special assessments based on safety experience.(fn15) Specifically, the statute required employer contributions when any worker was "injured because of the absence of any safeguard or protection required to be provided or maintained by . . . any statute, ordinance, or any departmental regulation."(fn16) Although the original legislation mandated Bureau review of assessments and compensations, an independent quasi-judicial agency called the Board of Industrial Insurance Appeals (BIIA) was created in 1949 to review Bureau orders.(fn17)

In 1913, the legislature created the Industrial Welfare Commission with the stated purpose of protecting all women and minor employees from conditions that have a pernicious effect on their health.(fn18) The legislature identified two such conditions as inadequate wages and unsanitary conditions.(fn19) The act provided for gathering data from employers related to injuries(fn20) and created misdemeanor protection for workers who faced retaliation for cooperating with the Commission.(fn21)

In 1921, the legislature created the Department of Labor and Industries (Labor and Industries) with responsibility for worker safety and health,(fn22) industrial insurance,(fn23) and industrial relations.(fn24) In 1927, the Coal Mining Code established several requirements that are recognized today as fundamental components of any comprehensive safety and health program: labor and management safety committees to review accidents and propose improvements;(fn25) mandatory first aid training;(fn26) safety education for all workers;(fn27) and safety bulletin boards at all levels of the mines to update workers on developments in safety and health.(fn28)

With the delegation of rule-making authority to Labor and Industries in 1941, most new developments came administratively rather than legislatively until the passage of the federal Occupational Safety and Health Act in 1970 (OSH Act).(fn29) In 1973, with the passage of WISHA, the State of Washington took a gigantic step forward in providing workers safe and healthful working conditions.(fn30)

The remainder of this Article will explain the workings of WISHA, its component parts, its impact on occupational safety and health in this state in the past twenty years, and what may be in store for the next twenty years. By explaining WISHA's component parts, the Article hopes to help practitioners understand how the statute works and how their clients, whether business or labor, are affected by the Act's regulatory structure. This Article first examines the OSH Act upon which much of the state act was built. Then, the Article will take you through the key components of the state act.

II. The Occupational Safety and Health Act of 1970

The OSH Act is a complex piece of legislation that established an extensive, multifaceted regulatory scheme to achieve the broad goal of assuring "so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources."(fn31) The Act declared the need for national standards that assure "the greatest protection of the safety and health of affected employees,"(fn32) established an employer's duties to its workers,(fn33) entrusted workers with rights to assist them in assuring themselves safe and healthful workplaces,(fn34) created three separate and distinct federal agencies,(fn35) and encouraged state participation in a scheme of preventative measures to provide occupational safety and health.(fn36)

The legal centerpiece of the Act involved the codification of a two-fold employer duty related to workers: a general duty to protect against recognized hazards and a duty to comply with workplace standards adopted by the Occupational Safety and Health Administration (OSHA).(fn37)

The Act created a federal regulatory agency (OSHA) supervised by the Secretary of Labor with broad powers including the following: (1) authority to promulgate rules and regulations;(fn38) (2) authority to inspect;(fn39) (3) power to keep records;(fn40) (4) power to issue an order that classifies a hazard discovered during inspection by its relationship to injury or illness that might result;(fn41) (5) authority to request that a federal court issue an order shutting off a hazardous piece of machinery or equipment until made safe;(fn42) (6) authority to approve grants related to occupational safety and health;(fn43) (7) power to monitor state plans;(fn44) and (8) authority to investigate and prosecute persons who discriminate against a worker because the worker exercises rights provided by the Act.(fn45)

The Act created a complementary federal agency, the National Institute for Occupational Safety and Health (NIOSH), to research occupational safety and health and placed the agency under the Secretary of Health, Education, and Welfare.(fn46) Congress endowed OSHA with the authority to seek both civil and criminal penalties against employers for failing to meet the duties imposed by the Act.(fn47) The Act also established funding for consultation, education, and training programs in the arena of occupational safety and health.(fn48) The statute also created a quasi-judicial agency, the Occupational Safety and Health Review Commission (OSHRC),(fn49) to review civil orders issued by OSHA.(fn50) Finally, Congress established a framework for state participation in regulatory activities and encouraged such partnership by providing funding.(fn51)

The framework for state participation. includes OSHA review and approval of proposed plans, developmental approval, and certification.(fn52) The plan itself must provide for personnel sufficient to operate according to established federal bench marks, authority to promulgate standards, authority to inspect, power to issue citations, an appeals system, authority to investigate and remedy discrimination, and record-keeping responsibilities.(fn53) Once developmentally approved, a state plan can operate while being closely monitored by OSHA for no less than three years at which time it becomes eligible for operational approval.(fn54)

OSHA approval removes federal preemption,(fn55) allowing a state to exercise its own sovereign powers over occupational safety and health.(fn56) Twenty-one states and two territories have approved state plans that cover both private and public sector employers.(fn57) In addition, two states have public sector plans only.(fn58) The State of Washington was one of the first states to receive approval from OSHA in 1976.(fn59)

In the operational stage, a state plan must continue to meet the minimum standards of OSHA while being monitored by the federal agency.(fn60) At this stage, the state and OSHA enter into an agreement with respect to the performance of obligations within the geographic boundaries of the state.(fn61) The operational contract, called a status agreement, has a provision for either joint or unilateral reassertion of full or partial federal jurisdiction.(fn62) The...