ASSISTANT SECRETARY FOR OCCUPATIONAL SAFETY AND HEALTH
U.S. DEPARTMENT OF LABOR
THE SUBCOMMITTEE ON EMPLOYMENT, SAFETY AND TRAINING
HEALTH, EDUCATION, LABOR AND PENSIONS COMMITTEE
UNITED STATES SENATE
March 4, 1999
Mr. Chairman, Members of the Subcommittee, thank you for inviting me to testify about S. 385, the SAFE Act, a proposal to amend the Occupational Safety and Health Act of 1970. I appreciate the opportunity to express OSHA's views on this bill. I would also like to take this opportunity to express my appreciation to you, Mr. Chairman, for your efforts to find common ground on these important issues. Although you have modified your proposal, the Department remains unable to support your bill.
OSHA's core mission is to ensure a safe and healthy workplace for every working man and woman in the Nation. We are most pleased by the latest occupational injury and illness statistics. For the fifth consecutive year, the rate of injuries and illness has declined. In fact, the rate for 1997 was the lowest since the Bureau of Labor Statistics (BLS) began reporting this information in the early 1970s. The improvement is particularly impressive in a booming economy when many new and inexperienced workers are coming into the workforce. Historically, new employees have been more likely to get hurt on the job than more experienced workers. Much of the credit for the improvement can be attributed to millions of employers and employees working every day to eliminate on-the-job hazards. I am proud that OSHA has been a catalyst to help these private sector efforts, using results-driven enforcement efforts, compliance assistance and standard setting to bring about workplace improvements.
Many challenges remain, but this message is clear. The New OSHA works. In the four years since President Clinton announced the "New OSHA" initiative, which combines targeted enforcement with partnerships and compliance assistance, we have developed a broad range of successful partnership programs. The New OSHA is doing more to promote cooperative partnership efforts between employers, workers and government.
OSHA joined with industry last November to hold a partnership conference celebrating the positive impact strategic partnerships, the Safety and Health Achievement Recognition Program (SHARP) and the Voluntary Protection Program (VPP) have on protecting employees and lowering workers' compensation costs for employers. In one success highlighted during the conference, OSHA worked with the Steel Erectors' Safety Association of Colorado (SESAC) tochange a contentious relationship. According to the president of Ridge Erectors, a SESAC participant, the new approach has "effectively taken an adversarial position that's been historic between business and OSHA and turned it into a partnership agreement where we work together to enhance education and we work together to provide a safe workplace." Many of the SESAC members have reduced injuries and illnesses at their workplaces and have lowered their workers' compensation costs. Calcon Constructors, for example, reduced its workers' compensation rate by almost two-thirds, saving sixty-three cents on every dollar in workers' compensation costs as a result of its partnership with OSHA. In addition, since the time Calcon initiated partnership efforts with OSHA in 1992, the company has reduced its rate of injuries and illnesses by over eighty percent.
Another successful partnership is happening in Port Arthur, Texas where the Huntsman Petrochemical Aromatics and Olefins Plant is a member of OSHA's Voluntary Protection Program (VPP). Workers at this site repeatedly have credited VPP participation as one vital factor contributing to improved management and employee relations. The plant's current three-year injury incidence rate is 74 percent below the industry average and its lost workday rate is 99 percent below average.
Many companies are commenting that their impression of OSHA has changed. For example, in an article in Government Executive (November 1995), an employer in OSHA's Maine 200 program said, "When I have a question for OSHA, I'll call them." He said that when other agencies call him, "I'll call my lawyers first[.]" Similarly, in New Jersey, the head of Barnard Construction said, "I think OSHA is trying to get on a path of not just knocking people out of business, but educating them." He went on to add, "Their attitude has definitely changed." Occupational Hazards (October 1995). Comments like these demonstrate OSHA is making progress.
In addition to partnership efforts, OSHA is making enforcement programs smarter and fairer by spending more time at the most hazardous workplaces and less time at safer ones. OSHA is using BLS data to identify industries with the highest injury and illness rates and is using information gathered from our own Data Initiative to target inspections at specific workplaces. In doing so, we have been able to discover serious violators in less time. At the same time, employers whose attention to safety has already paid off in the form of lower injury and illness rates are less likely to see an OSHA inspector.
Over the past several years, we also have measured results, where possible, by real improvements in the lives of working people, such as reduced injury and illness rates. The five-year decline in injury and illness rates is evidence that this combination of approaches is working.
Finally, OSHA has redoubled its commitment to small business. Immediately after I leave this hearing, I will be participating in a forum that OSHA is sponsoring, entitled "OSHA and Small Business: New Ways of Working." We invited stakeholders, including small businesses, trade associations and unions; Congress members and their staffs; and the Small Business Administration. The forum will showcase information and services available to help small businesses improve workplace safety and health. The program will involve a half-day seminar and a question-and-answer session with a panel of OSHA senior staff. We will cover several topics, including how small businesses can receive compliance assistance and technical advice, the role of the Small Business Regulatory Enforcement and Fairness Act, and partnership opportunities. We also will be providing each of the estimated two hundred participants with an information packet, including a CD-ROM disk, all of which will help them understand and implement OSHA standards. In addition, for the first time, OSHA will be participating in National Small Business Week beginning May 23. During that week, each of OSHA's regional offices will hold forums similar to the one I am attending this afternoon.
The SAFE Act
Mr. Chairman, while I appreciate your cooperative spirit and hope that we can continue to work together to improve worker safety and health, OSHA cannot support S. 385. Last year, the Department stated that the Secretary would recommend a veto if the SAFE Act passed the Congress. Despite the changes that have been made since then, we believe the new SAFE Act, if enacted, would undermine the agency's ability to protect workers. Consequently, if S. 385 were passed, as drafted, the Secretary again would be forced to recommend a veto.
Third Party Consultation
S. 385 would establish a new system for OSHA to certify private-sector, for-profit, third party consultants. Consultants would contract with employers to assist in the identification and correction of safety and health hazards. Upon reinspection verifying that the required elements of the consultation report have been satisfied, consultants would provide employers with a certificate that would exempt them from OSHA civil penalties for one year.
OSHA opposes the third party consultation provision. First, OSHA has concerns about the new "Purpose" section. Second, the consultation provision creates conflict-of-interest and accountability problems. Finally, we are concerned that employers could, in effect, negotiate compliance agreements that fail to meet the requirements of the OSH Act.
While we strongly agree that employee safety and health are "of paramount concern," subsections two and three of this section contain wholly inappropriate and inaccurate opinions that would undermine that spirit and could cripple the agency. These subsections would codify the erroneous opinion that employers are incapable of compliance with OSHA regulations and that OSHA is unable to enforce them. Some employers would attempt to use this provision to avoid compliance.
Conflicts of Interest
Private safety and health consultants provide an important service and OSHA encourages employers to use them as a valuable resource. OSHA also provides free consultation for small businesses in each of the fifty states, the District of Columbia and three territories. However, there are significant differences between employers using consultants voluntarily to self-inspect and using them to purchase immunity from OSHA penalties. While OSHA encourages employers to make use of non-OSHA consultants, the private sector is driven by the market, not a mandate to protect employee safety and health. Therefore, the program would be vulnerable to conflict of interest and accountability problems.
The third party consultation provision creates a powerful incentive for consultants to please employers in order to create and maintain business. The consultant's business interest in conducting inspections and granting penalty exemptions could place him or her at odds with the interests of employee safety and health. This tension could ultimately cast doubt on the legitimacy of the exemptions the consultant grants. The consultant would feel pressured to sell penalty exemptions without rigorously inspecting workplaces in order to create business. Likewise, employers may feel obligated to purchase unnecessary services in order to curry favor with the consultant.
The bill provides OSHA with little recourse against consultants whose improper certifications put workers at risk. Under this provision, the only option OSHA would have for dealing with consultants who commit fraud, collusion, malfeasance or gross negligence would be to expel them from the program. Such serious offences warrant more than mere removal from the program. Worse yet, OSHA would have no meaningful recourse against a consultant who was overly generous in granting penalty exemptions due to incompetence or negligence. Even though workers would continue to be exposed to hazards in the workplace, the consultant could continue to grant exemptions and the certificates of compliance he or she issued would still stand. If, on the other hand, OSHA finds that one of its compliance officers is not performing to our standards, we have the ability to correct the situation. The disciplinary provisions of this program are simply insufficient to redress the harm unconscientious consultants could inflict on thousands of working Americans.
Section 3 would allow an employer whose workplace was found to have safety and health hazards to negotiate compliance efforts and requirements with the consultant. The provision requires that the employer and consultant agree to the terms and timeframes of the Action Plan. Agreements necessitate compromise. While OSHA works closely with employers to create mutually acceptable Action Plans, OSHA would not agree to a Plan that allows an employer to remain out of compliance with the OSH Act for an unreasonable amount of time. On the other hand, under the language of this legislation, it is entirely possible that an employer and consultant would agree to an Action Plan in which the employer is not required to come into full compliance with the OSH Act for many years. For example, an employer and consultant might compromise on how quickly a guardrail must be fixed although employees would remain exposed to a significant fall hazard in the meantime. OSHA cannot support legislation that would allow an employer to avoid compliance and endanger workers.
Safety and Health Programs
OSHA is pleased that the new bill emphasizes the importance of safety and health programs by including many elements of OSHA's SHARP program. However, this change does not overcome OSHA's significant objections to the third party consultation provision.
The bill encourages employers to use third party consultants by offering them a one-year moratorium on penalties for violations of the law. We strongly disagree with this approach. If employers, acting in good faith, engage qualified consultants and correct all of the violations the consultants find, they should have no reason to be concerned about penalties and fines. A penalty waiver will be an incentive only to an employer who does not intend to put an effective safety program in place and who does not intend to correct all violations. The SHARP program, on which section 3 is modeled, does not offer a penalty waiver. Rather, in recognition of the fact that the participating employer has received significant attention from OSHA, SHARP provides for a one-year exemption from programmed inspections. If, however, OSHA is called in for a complaint or fatality investigation and discovers uncorrected violations, the SHARP employer will be subject to citation and penalties. I believe that employers will be less likely to comply with the law if we tell them in advance that they may violate the law without fear of a penalty. Just as individuals who receive assistance from professional tax preparers cannot claim exemption from tax penalties, employers who enlist third-party consultants should not be granted exemption from penalties resulting from OSH Act violations. As drafted, the bill would have OSHA concede an inherent governmental responsibility to enforce workplace safety laws based on a third party's determination.
In addition, the proposal in S. 385 would allow a company with an injury and illness rate twice the average for its industry to receive a certificate of compliance and the resulting penalty exemption. This is in stark contrast to the SHARP program, which denies participation to an employer that fails to maintain a lost workday injury rate and injury incidence rate at or below the national average.
I would like to take this opportunity to highlight several of OSHA's other concerns with the SAFE Act. I will limit my comments to a few provisions that I find particularly troubling. Among these are the technical assistance, worksite-specific compliance, and discretionary compliance assistance provisions. My limited discussion of these few provisions of the bill, should not be taken to imply that OSHA supports the remainder of the bill. But, in the interest of time, I will forgo commenting on those issues in my testimony. The Department's comprehensive analysis of the bill is attached to my testimony.
Section 7 would require citations to be vacated if the employer can prove that its employees were protected "by equally or more protective" means than those required by OSHA standards. This new employer defense could turn every enforcement action into a time-consuming standards litigation effort, imposing substantial burdens on agency resources and the court system. OSHA standards would become mere guidelines open for debate whenever an employer wants to contest OSHA standards, and routine enforcement cases would be turned into exercises in rulemaking. For this and other reasons, courts have held repeatedly that employers must comply with OSHA standards in the manner specified in the standards. As the United States Court of Appeals for the Eleventh Circuit has noted, "An employer must follow the law even if it has a good faith belief that its own policy is wiser."
Section 8 would amend the recently enacted provisions that govern OSHA's consultation program. Just months ago, OSHA supported enactment of H.R. 2864, a bipartisan bill sponsored by Congressman Cass Ballenger of North Carolina, that codified OSHA's consultation program with enhanced employee protections. The new requirements authorize the Secretary to establish and support cooperative agreements with the States, allowing employers to consult with State personnel on the application of occupational safety and health requirements and voluntary safety- and health-related efforts by employees. The law also allows the States to provide education and training programs for employers and employees and requires States to ensure that on-site consultation programs provide for employee participation.
We are proud that our cooperative efforts added OSHA consultation to the Act. We believe that no amendments to the new law are needed at this time. The fee-for-service element of S. 385 would give priority to those who can afford to pay for consultation, not those who need it most. Consultation is and should remain prioritized for small, high-hazard employers, not for large, wealthy ones.
Discretionary Compliance Assistance
Section 11 would allow OSHA to issue warnings in lieu of citations, even for violations that have killed employees, as long as the employer agrees to abate the violation promptly. This section is unnecessary and could lead to reductions in employer compliance with the law. OSHA already has the discretion to decline to issue citations in appropriate circumstances. For example, OSHA has used this discretion to establish programs such as Maine 200. In addition, OSHA has created a "quick fix" policy in which a compliance officer does not issue citations where the employer immediately abates a hazard that was not likely to cause harm to an employee.
This provision sends a message that employers need not necessarily concern themselves with potential OSHA fines for violating its law. If employers believe that OSHA's enforcement ability is weakened, they will be less likely to comply with OSHA standards. Further, if employers believe they get one free pass before receiving a penalty, many could be lulled into complacency regarding safety and health requirements until finally being inspected. This provision is particularly troubling because it could actually influence employers not to remain in compliance with the OSH Act.
When I evaluate legislative proposals to amend the OSH Act, my first question is always the same: will the change tend to make workers safer and healthier? There is no doubt in my mind that a provision that removes an important incentive for employers to comply with the law fails that test.
Mr. Chairman, I believe you have made a good faith effort to improve upon last year's version of the SAFE Act by eliminating certain controversial provisions. Unfortunately, the remaining provisions continue to raise serious concerns that would necessitate a veto recommendation by the Secretary of Labor.
Protecting Workers Better
Mr. Chairman, there are a variety of ways to strengthen the protection provided to workers under the OSH Act. We would, for example, support legislation that strengthens the whistleblower protection of the OSH Act. It is fundamental that workers must feel free to inform their employer or the government when dangerous working conditions threaten their life or safety. There is a good deal of evidence, however, that many employees do not feel free to complain about unsafe conditions and that too many employers feel they can retaliate against whistleblowers with impunity. The provisions in place today in section 11(c) of the Act are too weak and too cumbersome to discourage employer retaliation or to provide an effective remedy for the victims of retaliation. A recent report by the Inspector General of the Department of Labor found that "whistleblowers" frequently face retaliation for exposing unsafe or unhealthy working conditions. A nurse at Skyline Terrace Nursing Home, for example, complained about the home's lack of gloves, which are required to protect employees from bloodborne pathogens. Four days after an inspection, she was fired in retaliation for the complaint. Another company, Hahner, Foreman & Harness, Inc., fired an employee for refusing to go up in a gondola three or four stories above the ground. The gondola had been malfunctioning and the employee believed it to be unsafe. When the employee refused to risk his safety, his superintendent instructed him that if he did not go back up into the malfunctioning gondola, somebody else would. He was fired for his refusal. If you wish to strengthen the safety and health protection available to workers, I suggest whistleblower protection as a place to begin.
In 1993, the North Carolina legislature, in a comprehensive review of our State plan following the Hamlet fire, took several steps that greatly strengthened whistleblower protection. The changes included a longer statute of limitations, a private right of action and a provision for treble damages. I believe these changes have played an important part in the progress North Carolina has made in reducing injury, illness and fatality rates over the last six years.
A second area this Subcommittee may want to consider is protections for public employees. The OSH Act currently does not adequately protect Federal employees and, in states that do not operate an OSHA-approved State plan, does not protect state and local employees (maintenance workers, construction workers, firefighters, etc.). Consequently, with the exception of the 25 states that actively provide public sector coverage under State OSHA programs, OSHA has little ability to require positive change on the part of public employers. As a consequence, this limited authority hinders OSHA's success in reducing illness, injuries and fatalities on the job. Congress last year enacted legislation supported by the Chairman and the Administration to subject the U.S. Postal Service to OSHA penalties.
There are numerous examples of on-the-job tragedies that occurred primarily because safety and health protections do not apply to public employees. These tragedies could have been prevented by compliance with OSHA rules.
Finally, the Subcommittee could examine increasing the criminal penalty for an employer whose willful conduct causes the death of an employee. We would urge that these violations not be classified as misdemeanors, but felonies, which carry with them the possibility of incarceration for periods in excess of one year. Classifying willful workplace safety and health violations that lead to an employee's death as misdemeanors is woefully inadequate to address the harm caused. Classifying such crimes as felonies would more justly reflect the severity of the offense.
While OSHA appreciates the Chairman's attempts to improve this bill, those attempts have not overcome OSHA's opposition to the SAFE Act. By diminishing OSHA's enforcement authority, the bill weakens worker safety and health. We believe the Subcommittee's efforts would be better directed toward efforts on which a consensus is possible. Such discussion can most effectively help achieve our mandated goal of safer and healthier workplaces.
ANALYSIS OF S. 385
ASSISTANT SECRETARY FOR OCCUPATIONAL SAFETY AND HEALTH
U.S. DEPARTMENT OF LABOR
March 4, 1999
Section 3. Third Party Consultation Services Program
Section 3 requires the Secretary to establish a program to "qualify" individuals who could then serve as consultants to employers to assist them in identifying and correcting safety and health hazards in their workplaces. An employer who contracted and received such services and who was declared by the consultant -- after the initial visit to the workplace, agreement on an Action Plan, and a possible follow-up "reinspection" visit -- to be in compliance with the Act, would be exempt from any assessment of a civil penalty under the Act for a period of one year, with certain limited exceptions.
The Department of Labor strongly opposes this section.
Initially, although we agree that employee safety and health are paramount, the Department is compelled to object to the new "purpose" that has been added to this section. The new "purpose" statement would codify the erroneous opinion that all employers are unable to read, understand and comply with the OSH Act. It would further codify the opinion that OSHA is unable to satisfy the compliance needs of each employer and employee within its jurisdiction. The addition of such sentiments to the OSH Act is, at best, inappropriate.
The incentives created by coupling the third party consultation provision with a penalty exemption leave the program extremely vulnerable to conflict-of-interest and accountability problems. At the most obvious level, a consultant paid by an employer would be likely to feel pressured to approve the employer's program or to fail to recommend costly engineering controls even when they were necessary to prevent an injury or illness. Likewise, businesses may feel obligated to purchase unnecessary services proposed to them by their consultant in order to ensure being granted a certificate of compliance. In addition, the provision permitting employers and consultants to agree upon the terms of the Action Plan would invite abuses that could result in seriously delayed abatement, if abatement is agreed to at all. Further, there is no provision in the bill that would prevent an employer from utilizing one of its own employees, or a former employee, to provide consulting services. Though this is no doubt not the intent of the bill's authors, section 3 would in effect enable employers to "purchase" immunity from OSHA inspections and penalties.
Reliance on the private sector for compliance declarations, coupled with exemptions from the possibility of an OSHA inspection with penalties for those employers who receive such declarations, would leave the agency without sufficient recourse if an inspection is necessary within the exemption period. For example, even if conditions in a certified workplace had undergone major change during the exemption period, a penalty could only be levied if OSHA could demonstrate the occurrence of a "fundamental change in the hazards" of the workplace or that the employer had not made a good faith effort to remain in compliance. The only large-scale study to date that correlates worksite injury data with worksite inspection history over time has shown that inspections in which penalties are assessed result in a significant reduction in injuries at the inspected site for three years following the inspection, and that inspections without penalties have no appreciable impact (Wayne Gray and John Scholz, "Does Regulatory Enforcement Work? A Panel Analysis of OSHA Enforcement," Law and Society Review, pages 177-213 (July 1993)).
The new version of the SAFE Act has been modified to include a safety and health program component. This is a positive addition to the bill, but does not cure flaws inherent in the third party consultation proposal. OSHA's Safety and Health Achievement Recognition Program (SHARP), part of OSHA's consultation program, exempts employers from a programmed inspection only after the employer requests and receives a full-service consultation visit, and works with the consultation program for a period of at least a year from the date of the initial visit to correct and abate all hazards, implement a fully effective worksite safety and health program and lower the lost workday and accident rates to a level at or below the national average for their industry. Unlike S.1237 in the 105th Congress, S. 385 incorporates a requirement for employers to implement a safety and health program before they can receive a certificate of compliance. However, unlike OSHA's SHARP program, there is no guarantee that all hazards will be abated before a certificate is granted. In addition, the ability of private, for-profit consultants to provide penalty exemptions, rather than the exemptions from programmed inspections that the SHARP program provides, gives those private, for-profit consultants power well beyond any power granted to an OSHA compliance officer or a state consultant. SHARP companies never receive blanket exemptions from penalties. Finally, under the SHARP program, OSHA has the final say over whether companies should receive SHARP recognition. This system provides an additional check to ensure that a workplace is safe and has an effective safety and health program before it becomes exempt from a programmed inspection.
The Department remains concerned that the bill is completely silent about a consultant's obligations when an employer is found NOT to be in compliance. This means that the consultant then has the option of refusing to provide a declaration, which leaves the employer free to seek out another consultant. While the bill now requires the consultant to identify violations of the OSH Act and possible corrective measures, there is still no clear requirement that employers abate the identified hazards or that consultants report to OSHA in the event of an employer's refusal to abate. Moreover, because reinspections are not necessarily required, there is no way for the consultant, employees or OSHA to verify either abatement or whether the elements of an effective safety and health program have been fully implemented.
The Department is concerned that the bill could allow an employer to receive a certificate of compliance even if it has not yet completed the process of hazard abatement. This would allow an employer that is out of compliance with the law to be declared in compliance. The problem is further compounded because an employer with a certificate of compliance who has not yet abated hazards identified in the written plan could not be penalized by OSHA for one year. Finally, unlike OSHA's abatement verification rule, the employer would not have to "inform affected employees and their representatives about abatement activities" the employer had promised to undertake. Elimination of a mandatory reinspection requirement worsens problem. Without reinspection, an employer could obtain a certificate without having to show that it has abated a single hazard. In the event that a reinspection does actually occur, there is no provision for further action if the employer has not satisfied all the elements in the consultation report.
In addition, relying on the private sector for such certifications, while at the same time exempting the employer's worksite from the possibility of a penalty, would deprive the agency of sufficient "quality control" over both certifications and the safety and health audits performed by Federally-sanctioned, certified individuals. The only oversight granted to OSHA under this bill is meaningless. The bill requires OSHA to maintain a registry of safety and health consultants it deems qualified, but hamstrings the agency in the event problems occur. In addition, maintaining a registry would place a substantial burden on the agency's already limited resources. Those resources should be targeted toward making workplaces and workers safer, not toward policing a new army of consultants.
These problems are compounded because the disciplinary action anticipated by this legislation is insufficient to redress or deter the abuses for which S.385 creates an incentive. Removal of a consultant from participation in the program is simply not enough to prevent or punish abuses such as fraud or collusion. Further, the circumstances under which an employer or consultant could be disciplined are so limited that the bill would permit a consultant to continue to participate where injuries and illnesses continue to occur as a result of incompetence or simple negligence. In addition, it appears that a consultant's failure to identify a hazard would exempt the employer from penalties for that hazard.
Further compounding these problems is the bill's failure to clearly identify the minimal qualifications for a consultant. For example, section 8A(b)(2)(A) identifies practitioners of certain state-licensed occupations as "eligible to be qualified" as consultants, but neglects others and does not specify what experience in hazard identification and occupational safety and health eligible consultants must have. OSHA is further concerned that this provision requires states to create licensing programs for safety and health professionals. We believe that this requirement may impose a significant burden upon the states.
The Department is unaware of any concrete evidence that a third party certification program would be successful. At the outset of this Administration, the idea of third-party audits was raised at a meeting of OSHA's stakeholders, where it met with little enthusiasm from either labor or business representatives. More recently, a State of North Carolina survey demonstrated a resounding preference on the part of employers for an OSHA consultant over a private consultant. Cost, as well as suspicion that the private consultant might attempt to sell an employer unnecessary services, were among the reasons given in support of OSHA consultants.
Section 4. Establishment of Special Advisory Committee
Section 4 would require the Secretary to establish a new advisory committee consisting of employees, employers, members of the general public, and an official from a state plan state. The committee would advise and make recommendations to the Secretary concerning the establishment and implementation of third-party consultation services programs under section 8A of the bill.
Section 7(a) of the current statute establishes the National Advisory Committee on Occupational Safety and Health (NACOSH), which exists to make recommendations on matters relating to the administration of the current Act. Mandating the establishment of a new advisory committee dealing with the new consultation program in section 8A of the bill would duplicate part of the existing jurisdiction of NACOSH and, as such, would be redundant and not in keeping with the concept of reinvention and streamlining. In the event the Secretary needs to consult with experts on the specifics of consultation programs, Sections 7(c)(1) and (2) of the OSH Act now give the Secretary broad powers to hire consultants and experts, and to utilize the services of experts from other Federal agencies and states. If the Secretary wishes to obtain advice through the instrumentality of an advisory committee, she may establish such a committee pursuant to the requirements of the Federal Advisory Committee Act.
Section 5. Continuing Education and Professional Certification for Certain Occupational Safety and Health Administration Personnel
Section 5 requires Federal employees who enforce the Act to meet the eligibility requirements established under new section 8A(b)(2) for third-party consultants. In addition, these employees must receive professional education and training every five years.
OSHA agrees that effective training of enforcement personnel is vitally important. OSHA and the State Plans conduct a wide range of training programs to ensure that compliance officers conduct fair and effective investigations.
The OSH Act is not industry-specific; it applies to a wide variety of workplaces throughout the nation. Therefore, it has been OSHA's experience that individuals with broad professional backgrounds become the best inspectors. During their first three years of employment, new Compliance Safety and Health Officers (CSHOs) are teamed with experienced inspectors and are given over 250 hours of training on investigative techniques at the OSHA Training Institute (OTI) in Des Plaines, Illinois. Additional training is mandatory for experienced CSHOs at least once every three years. Finally, whenever new standards are promulgated, OTI offers specialized training in these standards.
As this discussion illustrates, OSHA does train and educate its employees, but not in a manner that matches the bill's inflexible requirements. We are concerned that the bill is unclear about which employees would be required to receive this training. For example, would the agency's attorneys be considered "responsible for enforcing this Act"? We are further concerned about the cost of providing the required training.
Finally, we note that the bill contains no specific training requirements for the consultants for the program created under section 5, whose inspections and reports may result in employer exemptions from civil monetary penalties.
Section 6. Expanded Inspection Methods
Section 6 of the bill would allow OSHA to investigate an alleged violation or danger by telephone or facsimile. The bill also states that OSHA is not required to conduct complaint inspections if "a request for inspection was made for reasons other than the safety and health of the employees of an employer" or if OSHA determines that workers are not at risk.
OSHA has two primary concerns about this section. First, although investigation of complaints by telephone, facsimile and other similar methods is desirable in many situations, these methods should not replace a worker's fundamental right to an inspection. In the past two years, OSHA has reduced the time from the filing of a complaint to the time hazards are abated by using telephone and facsimile methods for investigating informal complaints. In addition, several offices have experimented with these methods for investigating formal worker complaints, but only where the complaining worker agrees. However, these methods should not be allowed to interfere where a worker seeks to exercise his or her statutory right to an inspection.
Second, section 6 would allow OSHA to forgo a formal complaint inspection if it determines that the complaint was made for reasons other than safety and health -- even if the information provided by the complainant suggests that the workers in question may be facing substantial risk. Again, the agency's determination as to whether to inspect following a formal complaint should be based on the likelihood that workers are at risk -- not on the motivation of the complainant. Where workers face substantial hazards, OSHA should act -- and is compelled by statute to act -- to protect them. Moreover, it would be very difficult for OSHA to determine the complainant's motivation. This exercise would consume scarce agency resources and delay inspections. Ultimately, the agency should continue to inspect where it has reasonable cause to believe that workers are at risk.
Section 7. Worksite-Specific Compliance Methods
Section 7 would create an entirely new statutory defense to an OSHA citation, based on an employer's demonstration that employees were protected by alternate methods equally or more protective than those required by the standard the employer violated.
The OSH Review Commission and the courts have held repeatedly that when OSHA's standards require employers to adopt specific precautions for protecting employees, employers must comply in the manner specified. Under current law, employers have the right to select alternative means of compliance when literal compliance is impossible or would pose a greater hazard to employees. In "greater hazard" cases, the Commission requires an employer to show that a variance has either been sought or would be inappropriate.
Under these rules, the contest rate has remained relatively low; less than ten percent of all citations are currently contested. Under this provision of S. 385, however, virtually every employer cited for violations of the OSH Act or OSHA standards could claim that an alternative means of compliance was as effective as the standard in question. In effect, standards would become guidelines, subject to challenge -- and potential waiver -- in every individual contested case. This provision could seriously undermine OSHA's standards, turn every enforcement action into a costly and time-consuming variance proceeding, and impose substantial burdens upon agency resources, the OSH Review Commission, and the Federal courts.
Section 8. Technical Assistance Program
Section 8 amends the OSH Act's "Training and Employee Education" provision to require cooperative agreements between OSHA and States to provide consultation programs. The Department objects to amending the new consultation law Congress passed less than a year ago with bipartisan support after extensive negotiations between Congress and the Department ((P.L. 105-197, 112 Stat. 638 (July 16, 1998) (the "Occupational Safety and Health Administration Compliance Assistance Authorization Act of 1998")).
We are particularly concerned with further amending the program in the way contemplated by section 8. Under section 8, the Secretary must establish a pilot program in three states for a duration of up to two years, the purpose of which would be to test a fee-for-service system. The fifty state agencies that already administer the consultation program have expressed very strong reservations about charging fees in the consultation program. The Administration shares these concerns. Those who could pay would be visited first, defeating the philosophy that this service is aimed at small or highly hazardous businesses that cannot afford to hire other consultants.
Section 9. Voluntary Protection Program
Section 9 attempts to codify OSHA's Voluntary Protection Program, requiring the Secretary to establish cooperative agreements with employers, who would create and maintain comprehensive safety and health management systems. The bill requires enhanced OSHA efforts to include small businesses in the VPP. Participation in this program would result in exemptions from inspections and certain paperwork requirements.
OSHA has supported codifying the VPP program, but we do not support this provision as drafted. The VPP has traditionally been, and should remain, a program for work sites, not employers. Although there are references to "the worksite" in the section, this vital mainstay of the program must be emphasized. OSHA is also concerned that codification could jeopardize the high standards of the program currently in operation. As drafted, this provision does not reflect the idea that the VPP program is reserved exclusively for those employers who have demonstrated the highest commitment to worker safety and health. Ideally, any codification of this program should limit participation to employers who have truly superior safety and health records, but should allow OSHA the flexibility to define (and modify as necessary) the specific criteria for participation in the program. We further note that the bill does not include a program requirement for VPP participants to provide meaningful employee involvement in safety and health matters, which we believe to be an important component of the program. These changes must be made before OSHA would withdraw its objections.
Section 10. Prevention of Alcohol and Substance Abuse
Section 10 authorizes the Secretary to test employees and management for drugs and alcohol following any work-related fatality or serious injury. It also permits employers to institute their own testing programs conforming to HHS and Federal workplace guidelines. Testing is permissible on a for-cause basis, as part of a scheduled medical examination, where an accident involving actual or potential loss of human life, bodily injury, or property damage has occurred, during participation in a drug treatment program, or on a random basis.
OSHA strongly supports measures that contribute to a drug-free work environment and reasonable programs of drug testing within a comprehensive workplace program for certain workplace environments, such as those involving safety-sensitive duties, and which take into consideration employee rights to privacy. However, OSHA is concerned that it may not have the resources to oversee drug and alcohol programs.
Section 11. Discretionary Compliance Assistance
This section provides that the Secretary may issue warnings in lieu of citations where the violation has no significant relationship to safety or health or where the employer has acted in good faith to promptly abate the violation. The Secretary may not exercise this discretion where the violation has a "significant relationship to employee safety or health" or where the violation is willful or repeated.
Currently, the OSH Act provides that OSHA "shall" issue a citation for each violation it discovers during an inspection. This provision would change this provision to "may." As a practical matter, the impact of this proposed change is unclear. Federal case law demonstrates that OSHA possesses a greater degree of prosecutorial discretion than was recognized in the early years of the agency's existence. The agency has discretion under existing law to establish programs in which it does not issue a citation for every violation it finds. For example, OSHA has used this discretion to establish programs such as Maine 200.
Among other things, OSHA is particularly troubled by paragraph 3(B), which allows the issuance of a "warning in lieu of a citation" for violations that the employer "acts promptly to abate[.]" Even though it allows OSHA the discretion to issue citations in such circumstances, this provision may signal employers that they need not take preventive steps to protect their workers prior to an OSHA inspection. As such, this provision could undermine both the preventive purpose as well as the deterrent effect of OSHA's enforcement program.
Prompt abatement of hazards should be encouraged, but it should be encouraged through penalty reductions, not by eliminating any citations whatsoever for violations. Otherwise, employers who make good faith efforts to protect workers before an OSHA inspector arrives at their door will be treated the same as neglectful employers who have ignored their workers' safety until the inspection.
Finally, the limitations on the Secretary's discretion are so narrow that they could lead to outrageous results. For example, the Secretary's discretion is not limited to cases in which an employer has shown good faith by implementing a safety and health program or in which no employee has been killed or seriously injured because of the employer's violation. Rather, the bill authorizes the Secretary to issue a warning in lieu of a citation if the employer "acts promptly to abate the violation" even if the employer has a long history of previous violations and causes the death of several employees.