SUMMARY STATEMENT OF
JOSEPH A. DEAR
ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH
SUBCOMMITTEE ON CIVIL SERVICE AND
THE SUBCOMMITTEE ON CENSUS, STATISTICS, AND POSTAL PERSONNEL
COMMITTEE ON POST OFFICE AND CIVIL SERVICE
U.S. HOUSE OF REPRESENTATIVES
MARCH 23, 1994
Messrs. Chairmen, Members of the Subcommittees:
I am very pleased to appear today to announce the Administration's support for your efforts to strengthen the way our nation protects Federal employees from workplace hazards.
OSHA's programs in the Federal sector have helped to dispel the notion of Federal agencies as white collar "paper factories" with little or no danger to employees. We have made Federal employers, employees, and the public aware that Federal workplaces contain hazards similar to those in the manufacturing and construction sectors of our private economy. Several agencies and sub-agencies had Lost Time Case Rates of almost 8 cases per 100 employees in 1992--rates which are above those for construction and manufacturing in the private sector.
Although we have made visible progress in the Federal sector, the continued occurrence of injuries and illnesses is a significant problem. Statistics provided by the Office of Workers' Compensation Programs, which administers the Federal Employees' Compensation Act, the workers' compensation law covering Federal employees, indicate that the total case rate has decreased from 6.1 injury/illnesses per 100 workers in 1982 to 5.4 per 100 in 1993--a decrease of 11 percent. However, this still means that more than 5% of the Federal workforce, or 165,000 workers, were injured or made ill on the job in 1993. In addition, the cost to Federal agencies of workers' compensation doubled in the last ten years, climbing from $876 million in 1984 to $1.8 billion in 1993.
The Clinton Administration is reinventing government, making it more efficient in delivering services to our citizens, streamlining governmental personnel and procurement policies, and improving the way in which managers and Federal workers accomplish tasks together. The Federal Government is seeking to become, in many ways, a model for the employers of this Nation. Similarly, the Federal Government should be a model employer in preventing workplace accidents and illnesses. We need to look at new ways of accomplishing this goal. Federal employees need additional tools and protections which are provided by H.R. 115, and experience under Executive Order 12196 has demonstrated that additional measures are necessary to assure that hazards are effectively abated in Federal workplaces.
Therefore, we support rapid legislative action to assure that Federal employers and the Postal Service have the same legal obligations and the same incentives for compliance as do other employers under the Occupational Safety and Health Act. As you know, moreover, Secretary Reich and I have testified that the OSH Act's regulation of the private sector is itself in need of improvement. It is our view that Federal and Postal employees should receive no less protection than we provide for the private sector.
The bill on which I have been asked to comment today, H.R. 115, accomplishes this goal by establishing a separate statutory framework for Federal employers and the Postal Service. I view H.R. 115 in basic outline as establishing requirements for Federal employers and the Postal Service that are like those which would be applicable to other employers if Congress enacts H.R. 1280.
It is our position that the details of H.R. 115 should be consistent with those features of H.R. 1280 we support, and that H.R. 115 not include provisions like those in the introduced version of H.R. 1280 to which we have objected. I am, therefore, attaching a copy of my statement on H.R. 1280 for the record.
Let me now discuss those provisions of H.R. 115 that would be most helpful in reducing Federal sector injuries, illnesses and deaths, as well as some of our concerns.
Proposed section 7911 of Title 5 would provide Federal employees, for the first time, with the statutory right to a place of employment free from recognized safety and health hazards likely to cause death or serious physical harm. This provision, which is virtually identical to the "General Duty" clause of the OSH Act that applies to the private sector, would afford Federal employees protection from recognized hazards not covered by specific OSHA standards.
Among the agency duties specified in proposed section 7912 is the duty to establish and carry out a written safety and health program. Everyone agrees that employers and employees must have greater involvement in identifying and abating safety and health hazards. The purpose of a written program is to establish management commitment to, and accountability for, workplace safety and health. These written programs make it possible to identify and fix hazards systematically before workers become sick or injured.
The value of preventive workplace safety and health programs is recognized in both the private and public sectors. America's most forward-looking companies already provide comprehensive programs in safety, quality control and other related aspects of production.
Safety and health programs have worked in the Federal sector, as well, when they have been implemented voluntarily under Executive Order 12196. We have examples of programs which Federal agencies have adapted to their workplaces and which have reduced injuries and illnesses.
For instance, when the Tennessee Valley Authority integrated Total Quality Management into its safety and health program, TVA achieved the best safety record in its history. In Fiscal year 1993 TVA's recordable injury and illness incident rate was .99 per 100 workers, exceeding its own goal of 1.5 cases per 100 workers for that year.
When the U.S. Mint found that many of their injuries were associated with moving heavy containers of coins, they purchased special pneumatic materials-handling equipment to do the job and dramatically reduced these types of injuries.
In testifying last month on H.R. 1280, I pointed out that in a nation of 6 million employers, there is no "one-size-fits-all" approach to workplace safety. Similarly, the diversity of Federal workplaces requires myriad ways of administering programs while maintaining basic elements such as a method to identify and correct hazards and employee training. We believe that the Committee should consider adding a provision, similar to that in H.R. 1280, which would provide administrative flexibility to modify the requirements for programs according to need in different types of workplaces.
Proposed section 7913 contains a requirement for safety and health committees at each worksite with 11 or more employees. We support a requirement for labor-management safety and health committees.
We realize the need for flexibility in ways of ensuring employee participation. We note that H.R. 1280 contains a provision that would allow alternatives to committees as long as they ensure that employees may participate meaningfully in safety and health. We believe this would be a valuable addition to H.R. 115.
We also note that H.R. 115 would require OSHA to issue regulations on committees and programs within 12 months after the effective date of this Act. The regulations would become effective 6 months later. In the interest of making certain that the statutory timelines are realistic, we suggest that they be lengthened somewhat. We would support a deadline of 18 months for issuing the final regulations and would recommend that agencies be given 6 additional months to comply. The House Education and Labor Committee adopted this approach in reporting out H.R. 1280.
Proposed sections 7914 through 7916 set forth an inspection scheme that is similar to OSHA's enforcement procedures in the private sector. OSHA would be authorized to conduct unannounced inspections in Federal workplaces, to issue citations for violations discovered during the inspection, and to propose monetary penalties against the agency. Federal employees would be allowed to request inspections and to accompany OSHA's inspector during the workplace visit. An agency receiving a citation or proposed, penalty could appeal to the Occupational Safety and Health Review Commission, which could affirm, modify or vacate the citation or penalty. Any order of the Commission could be subject to judicial review in a United States Court of Appeals.
OSHA welcomes the enforcement authority provided by sections 7914 through 7916. The greatest weakness in the present Federal Agency Program is that OSHA has no authority to compel Federal agencies to abate workplace hazards within reasonable time frames--unlike OSHA's authority in the private sector. The enforcement provisions of H.R. 115 address this problem.
The Administration has some concerns, however, with the bill's enforcement mechanisms. We understand that the Department of Justice will be contacting you to express their views about these provisions.
In addition, while we recognize the valuable role which Federal employees and their representatives would play in enforcing this Act, we have a concern with the provision of section 7916 that would authorize the Review Commission to review and disapprove citations and settlements negotiated by OSHA with an agency on the basis of employee objections on a range of matters. Authorizing such challenges could delay and complicate final settlement and implementation of the agreed measures for abatement. Moreover, the prospect of such a challenge would remove an important incentive for settlement that OSHA has in the private sector: the employer's knowledge that agreement to the agency's terms will clearly and finally resolve the dispute.
We also cannot fully support the bill's approach to informal complaints. If OSHA were required to conduct an inspection in response to each informal complaint received, resources would be shifted away from inspections targeted to high-hazard workplaces in the Federal and private sectors. We have found that a less formal response--for example, letter investigations and phone inquiries--can often resolve these complaints and lead to prompt abatement.
OSHA supports the provision of section 7915 which codifies for the Federal sector current OSHA case law recognizing that employers have a defense against citation for unpreventable employee misconduct.
This Committee has heard testimony regarding Federal employees who have suffered retaliation for reporting safety and health hazards and attempting to have the conditions abated. OSHA supports provisions to enhance protection against discrimination or reprisal for workers who exercise their safety and health rights. If employees hesitate to exercise their rights for fear of losing their jobs or suffering some other form of reprisal, these rights are meaningless. Section 7920 provides a statutory basis for protection of Federal employees against discrimination similar to that which is in section 11(c) of the OSH Act, although the enforcement provisions are quite different. We note, for instance, that the provision does not give OSHA the authority to investigate the discrimination claims; authority which has been helpful in resolving claims in the private sector. OSHA supports the objective of section 7920 of the bill to give comparable protection to Federal workers and believes that it should be extended to the Postal Service as well.
Section 7918 would mandate new responsibilities for GSA, and OSHA supports the principles underlying this provision. We believe that the agencies who are tenants in Federal buildings, as well as GSA as the landlord, have a responsibility to ensure safe and healthful working conditions in these buildings. The bill begins to clarify these respective responsibilities. We would be happy to work with your staff in refining these provisions further.
H.R. 115 contains no provision on construction safety and health. The comprehensive OSHA reform bills include a separate Title dealing with this industry, which has unique hazards and a high injury/illness rate in the private sector. We are available to discuss with your staff any changes you may want to consider to deal with construction hazards faced by Federal workers.
H.R. 115 would ensure that Federal employees are no longer "second-class citizens" when it comes to their safety and health on the job. Federal workers face the same kinds of hazards as those faced in the private sector; they should receive the same degree of protection. The Federal Government should be a model employer. As our reinvention effort demonstrates, there are many ways we can improve the operations of the Federal Government. Reducing accidents and illness among Federal employees will lead to a more efficient and productive government. By strengthening the Federal agency safety and health program, you provide us with the tools needed to eliminate hazards from Federal workplaces in an effective way. I applaud your efforts and look forward to working with you on this legislation.