OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION
COMMITTEE ON EDUCATION AND THE WORKFORCE
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
UNITED STATES HOUSE OF REPRESENTATIVES
APRIL 29, 1998
Mr. Chairman and Members of the Subcommittee:
Thank you for inviting me to testify about several proposals to amend the Occupational Safety and Health Act of 1970. I appreciate the opportunity to express the views of the Occupational Safety and Health Administration on H.R. 2869, 2661, 2871, 2873, 2879 and 3519. Mr. Chairman, although we have known each other for many years and I previously testified before you as head of North Carolina OSHA, this is my first appearance before your subcommittee since my confirmation as OSHA's Assistant Secretary. I have appreciated your overtures to me and your willingness to discuss OSHA's concerns about various OSHA reform proposals. I was glad to return those overtures and to join you in supporting the passage of two earlier bills, H.R. 2864 and 2877.
OSHA's core mission is to ensure a safe and healthy workplace for every working man and woman in the Nation. We are making progress; the Bureau of Labor Statistics announced last December that the rate of worker injuries and illnesses was at 7.4 per 100 workers, the lowest point in the history of the BLS occupational injury and illness survey. But more must be done to protect our Nation's workers. Workers still suffer over 6,000 fatalities per year from safety hazards and 50-60,000 fatalities from occupational disease. At the same time, we seek methods that avoid placing unnecessary burdens on employers. Through reinvention, OSHA is developing new strategies that leverage the agency's limited resources and, in many cases, re-shape how OSHA interacts with employers and workers to promote safe and healthy work environments.
The New OSHA
OSHA is changing the way it does business. It has been three years since President Clinton announced the "New OSHA" initiative. Since then, we have developed a broad range of partnership programs that promote cooperative efforts between employers, workers and government. We are making enforcement programs smarter and fairer by spending more time at the most hazardous workplaces and less time at safer ones. We are treating responsible employers differently than neglectful ones. OSHA is simplifying standards by rewriting them in plain language, using performance-based approaches wherever possible. We're focusing less on individual, technical violations, and more on systematic approaches that allow workers and employers to find and fix hazards on an ongoing basis. And finally, we're measuring results, where possible, not by numbers of citations or penalties, but by real improvements in the lives of working people, such as reduced injury and illness rates.
I would like to express my appreciation to you, Mr. Chairman, and to the rest of the Committee for your cooperative spirit during my short tenure with OSHA. I was pleased that we could reach compromises on H.R. 2864 and 2877, OSHA reform bills that you recently passed in the House. However, while I appreciate your interest in working together on OSHA-related legislation, we do not share common ground on the proposals on the subcommittee's agenda today. In OSHA's view, the bills to be discussed today are either unnecessary or would undermine OSHA's ability to protect workers.
H.R. 2869 -- Excluding Employer Audits from Discovery
H.R. 2869 would create an evidentiary privilege for employer self-audit documents. This extremely broad privilege would vastly complicate OSHA enforcement. It would force the agency to arrive at conclusions about workplace hazards and accidents without critical information. In many cases, particularly in fatality and catastrophe investigations, self-audit records and reports are the most reliable, and often the only means of establishing the facts. Under such circumstances, OSHA needs the ability to gather all the information it can to explain why these accidents happened and to help prevent them from happening again.
The fact that the bill contains an exception for "safety and health assessments prescribed under section 6(b)(7)" of the OSH Act does little to ameliorate the bill's harmful effects on enforcement of OSHA requirements. That section of the Act specifically addresses only a limited class of requirements dealing with medical surveillance and exposure monitoring, so the bill would leave the vast majority of workplace health and safety assessments required by OSHA rules off-limits to scrutiny by OSHA, the Review Commission and the courts. Furthermore, many of OSHA's audit requirements are expressed in general, performance-oriented terms, making it difficult if not impossible to discern the line between mandatory and voluntary audit activity. Finally, OSHA is required to demonstrate employer knowledge of a cited hazard, and is required, in proposing penalties, to ascertain the extent of an employer's good faith, inquiries which cannot fairly be resolved without access to the very records which document knowledge and good faith.
Contrary to the belief of many businesses, disclosure of self audit documents generally benefits good faith employers. OSHA provides penalty reductions where employers who receive citations have acted in good faith to try and correct deficiencies identified in an audit. For example, in a hypothetical small muffler shop the owner keeps his mufflers in a storage loft, but the loft does not have a railing. While conducting a self audit, the employer discovers that the loft poses a serious fall hazard to his employees. As a result, he moves the mufflers as far away from the ledge as possible and puts cones along the ledge. When an OSHA compliance officer comes to inspect this muffler shop, he immediately spots the fall hazard. Under ordinary circumstances, failure to install a guardrail would result in a $5,000 fine. In this case, however, the employer would receive a credit worth $3,875. This is because, through the self-audit documents, the employer can show that he acted in good faith and that he did do something to try to reduce the likelihood of injury to his employees. If this small business has no history of serious violations, the $5,000 penalty would ultimately be reduced to $75.
The proposed evidentiary privilege would protect only bad actors -- employers who have identified hazards, have failed to make good faith efforts to correct them, and wish to hide the evidence.
H.R. 2661 and H.R. 2871 -- Additional Scientific and Economic Peer Review
H.R. 2661 and 2871 would both require the Secretary to create an advisory panel to review scientific and economic data every time OSHA proposes a new standard. H.R. 2871 provides an exception where the standard has been promulgated through negotiated rulemaking. This additional committee is unnecessary, duplicative and would create serious delays in our rulemaking process -- a process that many already criticize as taking too long.
Today, comprehensive OSHA rules can take as many as eight years to publish. In the meantime, workers are exposed to hazards every day. During that time, OSHA has a variety of obligations: engage in notice and comment rulemaking; conduct economic and risk analyses; assess impact on small businesses and, depending upon that impact, convene a small business panel under the Small Business Regulatory Enforcement Fairness Act; survey industries; and do extensive review of research on selected topics. When OSHA issues a proposal, the agency also engages in a rigorous public hearing process. On standards where peer review of a part of the supporting material is appropriate, a peer review has been done. For example, the risk assessment for tuberculosis was peer reviewed. Once the proposed standard is published in the Federal Register, any interested party can comment upon the standard itself as well as the underlying scientific and economic data.
OSHA's public hearings allow for the fullest, most thorough discourse on every subject relevant to a rule. They provide the greatest possible public access to the process -- scientists, economists, safety and health professionals, representatives of potentially affected industries and any other interested parties may and do participate. At public hearings, interested parties can submit testimony and evidence, cross examine OSHA experts and engage in debate with other participants. For example, OSHA just completed nine days of hearings last week on the agency's proposed standard on occupational exposure to Tuberculosis. Scientists and economists always present new data and test each other's theories through questioning and comment, a process from which OSHA has gained valuable information. The entire discussion is conducted in full public view, and enables participants to challenge one another's positions. Public hearings are often held around the country to make it easier for interested parties to attend. I invite members of this committee to come attend one of our hearings and observe this critical process in action.
A new committee, like the ones proposed in H.R. 2661 and 2871, would provide selected persons an additional closed-door opportunity to influence rulemaking after the public process is complete. This would give the committee members an unfair advantage. In addition, the closed nature of the committee proceedings would prevent the public from a full and fair discussion on their rationale and decisions. The bill's failure to require disclosure from this committee makes its already unnecessary contribution suspect as well.
The President, consistent with Executive Order 12838 and the National Performance Review, has asked Congress to show restraint in the creation of new statutory committees. In the interest of promulgating rules that will best protect workers, this is an appropriate time to exercise that restraint.
H.R. 2873 -- Risk Assessment and Cost-Benefit Analyses for Every Industry
H.R. 2873 would require OSHA to conduct an individual risk assessment and cost-benefit analysis for each industry affected by a proposed standard. The Supreme Court has determined that under the OSH Act OSHA cannot base its health standards on cost-benefit analyses and is required by law to reduce significant risk to the extent feasible. However, OSHA agrees that comprehensive and accurate risk assessments and economic analyses are valuable informational tools, and devotes considerable effort to making these documents clear and methodologically sound. For each rule, the Agency already conducts detailed risk assessments, develops extensive significance-of-risk analyses, demonstrates technological and economic feasibility (including an assessment of costs), evaluates benefits, and assesses impacts (including small business impacts, as required by the Regulatory Flexibility Act). Cost estimates and feasibility analyses are commonly conducted at the industry level, because data on the technological and financial status of each industry that reflect real conditions in that industry are usually publicly available. However, it is rarely the case that industry-specific data on risk are available; even where such data are available, they generally cannot be used to produce statistically meaningful results. Because industry-specific risk data are rarely available, it is not possible to develop industry-specific benefits analyses.
H.R. 2879 -- Limiting Liability at Multi-Employer Worksites
H.R. 2879 would limit the liability of certain employers, particularly general contractors in the construction industry, at multi-employer worksites. This bill would prohibit OSHA from citing an employer for a violation if the employer has no employees exposed to the hazard and has neither created the hazard nor assumed responsibility for ensuring that the other employers at the worksite comply. This would create an incentive for general contractors to give up their authority to ensure that subcontractors comply with safety standards. If we encourage the employers in the best position to enhance workplace safety to reduce their authority, workers will pay the price.
First, let me clear up some misunderstandings about liability under the OSH Act. The OSH Act holds all employers responsible for hazards under their control regardless of whose employees are exposed. Some employers have misconstrued our policy as limiting the liability of the subcontractor by holding the general contractor liable instead. This is not the case. We do hold the subcontractor liable. Where a general contractor has failed to exercise due diligence in meeting its responsibility, we then hold the general contractor liable as well. That way, we can ensure that both the subcontractor and the general contractor have the incentive to coordinate their efforts in keeping the workers on the site safe.
OSHA's multi-employer worksite policy reflects court decisions that involved very serious accidents; workers were getting killed because general contractors and subcontractors failed to coordinate their responsibilities for ensuring worker safety and health. The tragedy that occurred at L'Ambiance Plaza in Connecticut is a prime example of the origins of our rule. In that case, 28 workers were killed when a high rise under construction collapsed through the error of one subcontractor. Workers from several subcontractors were killed.
Where one subcontractor creates a hazard for the employees of another subcontractor, only the general contractor may be in the best position to get the problem corrected. Just as general contractors have the ultimate supervisory power of all other aspects of the work, the best way to protect all of the workers at a particular site is for the general contractor to have overall responsibility for coordinating efforts for worker safety and health as well.
Under the case law, the liability of general contractors is not absolute, but depends on the circumstances of the case. Further limiting the liability of the general contractor would be a step backward. None of us wants to revisit the tragedies of the past. In our experience, this has proven the most effective method in reducing injuries and fatalities at multi-employer worksites. The bottom line is that we need all of the contractors to work together to make multi-employer worksites safe. In order to ensure the safety and health of the employees of both the general contractor and the subcontractors we cannot limit the responsibility of either.
H.R. 3519 -- Standard and Electronic MSDS's
H.R. 3519 proposes to amend the OSH Act to require electronic access to Material Safety Data Sheets (MSDS's). The bill would also require OSHA to modify its Hazard Communication Standard (29 CFR 1910.1200) to require a standard format for MSDS's. These proposals are well intentioned, and OSHA is working along parallel lines. However, we believe that legislation is unnecessary and unwise at this time.
OSHA supports allowing employers to provide their workers with electronic access to MSDS's. In fact, OSHA has allowed such electronic access for some time. However, there has been confusion in some quarters about OSHA's policy regarding electronic access. Consequently, OSHA issued a new compliance directive clarifying the agency's policy at approximately the same time this bill was introduced. Since the bill and the modified compliance directive presumably were being drafted simultaneously, it is entirely possible that the bill's authors were unaware of the impending clarification. OSHA believes that the clarification should address the authors' concerns. In the event the subcommittee feels that additional action by OSHA is necessary to get the word out, we are prepared to work with you to increase awareness.
The standardization of MSDS's is appealing. In fact, OSHA is participating in international discussions on how MSDS's might be standardized. However, standardization is premature. It is also more difficult than it sounds.
MSDS's have a variety of users, with varying backgrounds and needs. While workers have access to them and have a right to know the information they contain, MSDS's are also used by physicians, nurses, industrial hygienists, safety engineers, toxicologists, firefighters, emergency responders, and others. Because MSDS's serve such a broad function, the American National Standards Institute (ANSI) developed a consensus standard that recognizes the diversity of the MSDS audience by requiring certain information that is of most use to workers to be placed in the beginning of the document, and stated in simple language. ANSI developed this "order of information" after extensive discussions with experts revealed that there is no real consensus on how an MSDS should be presented.
There is an ongoing and extensive international effort to harmonize hazard communication requirements for hazard classification, labeling, and material safety data sheets. OSHA has participated in this effort for many years. The ANSI "order of information" may be part of a globally harmonized system by the year 2000. Therefore, OSHA believes the wisest course is to wait until that system is complete before taking additional action on the issue. It is far better to standardize consistent with an internationally accepted approach, both from a worker protection standpoint and trade perspective. If Congress were to mandate a change at this point, U.S. manufacturers would be required to change most of their MSDS's in the short term, and then again in a few years. This would be costly for business and would have questionable benefit for workers.
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 protections 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 of 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 this as a place to begin.
In North Carolina in 1993, the state legislature took several steps that greatly strengthened whistleblower protections after the Hamlet fire revealed the flaws in our State Plan. 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 five years.
In addition, in states that do not operate an OSHA-approved State plan, the OSH Act does not effectively protect federal, state and local employees (maintenance workers, construction workers, firefighters, etc.). Consequently, with the exception of the 23 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.
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. In addition, studies have shown that the overall cost of providing OSH Act coverage for these employees is small, especially compared with the amount of money which would be saved by reducing the cost of worker injuries.
A third option for deterring action that places workers at risk is 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. The current classification for willful workplace safety and health violations that lead to an employee's death are woefully inadequate to address the harm caused. Classifying such crimes as felonies would more justly reflect the severity of the offense.
In conclusion, the bills before us today would not contribute to the improvement of worker safety and health. Prohibiting OSHA from gathering necessary information, adding redundant and burdensome layers to our rulemaking process and limiting employer liability is not the way to protect the working men and women of this country. Again, let me reiterate my appreciation for this opportunity to testify before you today. I look forward to continuing our dialogue in our effort to improve OSHA's contribution to the safety and health of American workers.