[Senate Report 104-308]
[From the U.S. Government Publishing Office]
Calendar No. 483
104th Congress Report
SENATE
2d Session 104-308
_______________________________________________________________________
OCCUPATIONAL SAFETY AND HEALTH REFORM AND REINVENTION ACT
_______
June 28, 1996.--Ordered to be printed
_______________________________________________________________________
Mrs. Kassebaum, from the Committee on Labor and Human Resources,
submitted the following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany S. 1423]
The Committee on Labor and Human Resources, to which was
referred the bill S. 1423 to amend the Occupational Safety and
Health Act of 1970 to make modifications to certain provisions,
and for other purposes, having considered the same, reports
favorably thereon with amendments and recommends that the bill,
as amended, do pass.
CONTENTS
Page
I. Purpose..........................................................1
II. Background and need for the legislation..........................4
III. Legislative history and committee action........................17
IV. Explanation of bill and committee views.........................22
V. Cost estimate...................................................41
VI. Regulatory impact statement.....................................44
VII. Section-by-section analysis.....................................44
VIII.Additional views................................................47
IX. Minority views..................................................50
X. Changes in existing law.........................................74
I. Purpose
The OSHA Reform and Reinvention Act, S. 1423, will improve
workplace safety by updating and retooling our basic Federal
workplace safety law, the Occupational Safety and Health Act of
1970 (OSHA). The bipartisan legislation will provide greater
protection for workers, more flexibility for employers, and
increased efficiency for the Federal agency designated to
oversee and implement our Federal workplace safety policy.
The OSH Act of 1970 imposed a duty on all employers to
establish and maintain a safe workplace. Like many programs
enacted during the ``era of big government,'' the legislation
created a Federal agency--the Occupational Safety and Health
Administration--within the U.S. Department of Labor to write
health and safety standards applicable to all workplaces. The
Congress then delegated responsibility to the OSH
Administration to enforce these standards through random
inspections and inspections conducted in response to worker
complaints.
Both the Congress and the Clinton administration recognized
that OSHA needs improvement. The U.S. Senate Committee on Labor
and Human Resources has held hearings on OSHA reform for the
past 5 years, and the Clinton administration began a major OSHA
reinvention initiative in 1995.
Underlying these efforts was an understanding that OSHA's
basic command and control structure--uniform, one-size-fits-all
regulations written at headquarters and enforced through mass
inspection--was no longer appropriate. The inflexible system
led the agency to become too focused on punishing employers for
paperwork violations rather than on the ultimate goal of
improved workplace safety. Firms were frustrated that
inspectors failed to differentiate between serious hazards and
mere technical noncompliance, and from a practical viewpoint,
given our limited resources, mass inspection was simply not
possible.
The Administration appeared to recognize this reality. In
the Labor Department's OSHA reinvention blueprint, the
Administration stated:
Not all workplaces are alike; not all employees are
equally responsible. Yet too often, today's regulatory
scheme applies a ``one-size-fits-all'' approach that
treats all workplaces and all hazards equally. In the
most significant reform unveiled in this report, OSHA
will take steps to treat employers who have aggressive
safety and health programs differently from employers
who lack such efforts. * * * For firms with strong and
effective health and safety programs [OSHA offers]
partnership. * * * For firms that do not implement
strong and effective health and safety programs [OSHA
offers] traditional enforcement.\1\
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\1\ ``The New OSHA: Reinventing Worker Safety and Health,''
National Performance Review, May 1995, p. 3-4 (hereinafter The New
OSHA), reprinted in Hearing of the Senate Committee on Labor and Human
Resources, ``Occupational Safety and Health Reform and Reinvention Act,
S. 1423,'' 104th Cong., 1st Sess., S. Hrg. 104-353 (November 29, 1995),
p. 63 (hereinafter S. Hrg. 104-353).
Implementing this ``partnership'' approach nationally, the
Administration stated that ``the key to success is encouraging
employers to work with their employees in hazard identification
and safety awareness, rather than have those workers depend
solely on OSHA inspectors.'' \2\
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\2\ ``The New OSHA,'' cited in S. Hrg. 104-353, p. 64.
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The OSHA Reform and Reinvention Act, S. 1423, implements
the Administration's reinvention effort and provides OSHA with
the tools to respond to a new workplace environment.
Recognizing that Federal safety inspectors cannot inspect every
workplace, the bill provides positive incentives for employers
to address health and safety on their own. Employers with
effective safety and health programs, or that utilize
certified, third-party consultants for workplace safety audits,
would be exempt from random OSHA inspections and would
experience lower OSHA fines issued in response to a worker
complaint. These positive incentives move OSHA away from the
command-and-control, punitive enforcement mode that has plagued
the agency since the mid-1970s.
Moreover, the legislation permanently authorizes and
codifies two important programs that have heretofore been
implemented by regulation and funded through annual
appropriations: the onsite consultation program, where safety
consultants provide employers with the information they need to
comply with the law without fines or penalties, and the
Voluntary Protection Program (VPP), where OSHA recognizes work
sites for their extraordinary commitment to health and safety.
Both of these programs demonstrate a renewed commitment to
promoting a cooperative, nonadversarial relationship between
OSHA and the employer community.
The legislation also removes significant legal barriers
that Federal labor law places in the way of legitimate employee
participation in health and safety matters. Workers deal with
workplace hazards firsthand every day, yet the National Labor
Relations Act prohibits worker-management safety committees in
nonunion settings. Senate bill 1423 removes this obstacle to
improved workplace safety so workers and managers may address
safety issues on their own, without relying on OSHA inspectors.
The committee recognizes that OSHA's enforcement capability
must be credible for the agency to remain effective. While
positive incentives encourage workers and firms to improve
workplace safety without relying on government intervention,
OSHA may devote its own scarce resources toward the worst
hazards in the most dangerous workplaces. The bill accomplishes
this goal in three ways.
First, the OSHA reform bill maintains the agency's
``egregious penalty policy,'' where OSHA multiplies the $70,000
maximum penalty for a ``willful'' violation by the number of
employees exposed to the hazard, thereby levying multimillion
dollar fines on the worst violators. Although some recommended
eliminating this policy, the committee did not take this action
in order for OSHA to maintain a credible deterrent capability.
Second, the bill changes OSHA's penalty structure for
violations of our health and safety laws. The committee expects
OSHA inspectors to focus on real hazards rather than on
paperwork compliance, yet current law maintains the same
maximum fine for both serious and nonserious violations
($7,000). Senate bill 1423 reduces fines for nonserious hazards
from the maximum of $7,000 to $100 so our Federal safety laws
differentiate between serious and nonserious violations. The
reform bill also prohibits fines for first time, nonserious
paperwork or posting violations.
Finally, the legislation changes OSHA's complaint process
to give inspectors greater discretion to investigate complaints
by phone or fax, rather than conducting onsite inspections for
every formal written complaint the agency receives. Last year,
OSHA inspectors wasted over 100,000 hours of inspector time
responding to complaints where there were no serious hazards.
Clearly, given its limited resources, OSHA must deploy its
enforcement personnel more efficiently in the future.
In sum, the Nation's Federal workplace safety law needs to
be retooled to deal with the changing environment. The
committee believes that the OSH Act must recognize and
encourage private sector initiatives to improve occupational
safety, while at the same time refocusing government resources
on the most serious hazards at the most dangerous work sites.
II. Background and Need for the Legislation
Congress enacted the Occupational Safety and Health Act in
1970. The statute created an agency within the U.S. Department
of Labor--the Occupational Safety and Health Administration--to
establish and enforce national health and safety standards
applicable to all work sites. Under the statute, OSHA
inspectors conduct random inspections, respond to complaints,
and investigate work sites after accidents occur.
Evidence of OSHA's effectiveness has been mixed. Although
some have argued that fatality rates declined over the past 30
years due to enlightened management, higher workers'
compensation costs, and a shift away from manufacturing and
toward service sector jobs,3 OSHA argued that its health
and safety standards, particularly in the area of lead
exposure, trench cave-ins and cotton dust, have saved
lives.4
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\3\ Summarizing the research on OSHA's effectiveness, one author
noted:
Indeed, a casual inspection of the data suggests that
OSHA's impact on injury and fatality rates has been
limited. Figure 1 [chart showing workplace fatalities from
1933-1992, compiled by the National Safety Council,
Accident Facts, 1993 ed., Itasca, IL] shows that the
workplace fatality rate has been declining for years, with
little impact from the creation of OSHA. Figure 2 [chart
showing workplace injury and illnesses from 1972-1994,
compiled by the U.S. Department of Labor, Bureau of Labor
Statistics] shows that unlike fatality rates, injury rates
do not show a significant decline over time. Rather the
pattern of lost workday injuries has closely followed the
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business cycle since the early 1970s.
Max Lyons, ``The Economics of Workplace Safety,'' Employment Policy
Foundation, 1996, p.34.
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\4\ See testimony of Joseph Dear before the Senate Committee on
Labor and Human Resources, ``OSHA Reform,'' S. Hrg. 104-116, June 21-
22, 1995, p. 89-90 (hereinafter S. Hrg. 104-116) and testimony of Linda
Chavez-Thompson, AFL-CIO, before the Senate Committee on Labor and
Human Resources, S. Hrg. 104-353, p. 37 (``Since the [OSHA] law's
passage, the workplace fatality rate has been cut in half; injury rates
have decreased. * * *'').
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Despite disagreement over the effectiveness of OSHA,
committee members as well as the witnesses testifying before
the committee during the two days of oversight hearings on June
21-22, 1995 agreed that our Federal workplace safety policy,
including the agency (OSHA) with responsibility for
implementing the policy, required reform. OSHA's assistant
secretary, Joseph Dear, told the committee:
I want to be very forthright and candid about the
need to change the agency's culture. When I came to
OSHA, I fully recognized that in the past, the agency
had at times lost sight of its mission, focusing too
much on procedures that appeared adversarial and nit-
picky, and not enough on saving lives and preventing
injuries. I knew that proceeding with ``business as
usual'' could well put us out of business altogether.
But if there is one single message you take away from
this hearing today, I hope it is this: that OSHA is
changing the way it does business.5
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\5\ S. Hrg. 104-116, p.131.
Senator Dodd commented that while ``OSHA has made a great
deal of progress in the quest for injury-free workplaces, [a]ll
of its actions have not been perfect * * * [and] there is
always room for improvement.'' 6 Joining in agreement,
Senator Gregg advocated ``mov[ing] down this road of trying to
make OSHA work better. Nobody is suggesting that we terminate
it; what we are talking about here is how we can make it
address the issues of safety in a more constructive way and
contribute to the concerns that lead to injuries versus
contributing to the concerns that lead to bureaucracy.'' 7
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\6\ S. Hrg. 104-116, p. 125.
\7\ S. Hrg. 104-116, p. 11.
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Separate the Good Actors from the Bad
Similarly, committee members and witnesses expressed
consensus on the changes OSHA needed to make. Mr. Dear
testified that OSHA was engaged in a ``reinvention'' initiative
``designed to make major changes in the culture of OSHA's
performance.'' Mr. Dear told the committee:
[S]ome employers believe that OSHA's enforcement
approach is too confrontational. To address this
concern, OSHA is changing its fundamental operating
model from one of command and control to one that
provides employers with a real choice between a
cooperative partnership and a traditional enforcement
relationship. This change is designed to separate good
actors from bad actors in the safety and health arena,
and to treat them differently.8
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\8\ S. Hrg. 104-116, p. 131.
Emphasizing his commitment to ``changing the way OSHA does
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business,'' Mr. Dear summarized his testimony as follows:
At the heart of our effort is a simple principle:
develop a broad range of interventions, and treat good
actors differently from bad actors. For employers who
have made safety and health a priority, and who are
looking for a cooperative partnership, offer
incentives, compliance assistance, training and
education, and recognize their efforts. But for those
employers who disregard their workers' safety and
health (and unfortunately some still do), retain a
strong traditional enforcement program.9
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\9\ S. Hrg. 104-116, p. 132.
Committee members and witnesses agreed with Mr. Dear that
OSHA currently failed to differentiate between companies making
a sincere effort to address workplace safety and those that did
not. Senator Simon commented that ``[a] complaint that I have
to believe probably has some legitimacy is that [OSHA] spend[s]
a disproportionate amount of time with companies that are doing
a good job. * * *'' 10
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\10\ S. Hrg. 104-116, p. 15-16.
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Vernon Rose, president of the American Industrial Hygiene
Association and a witness invited by the minority, believed
``companies that are taking responsibility for themselves and
making changes in the workplace could be recognized by OSHA as
good faith employers,'' \11\ Similarly, Ray Montaigne, a safety
professional testifying for the Associated Builders and
Contractors, told the committee: ``If OSHA is to be effective,
then it needs to be a partner to those companies that make a
sincere effort and reserve the policeman tactics for companies
that do not make the effort to have a safe workplace.'' \12\
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\11\ S. Hrg. 104-116, p. 28.
\12\ S. Hrg. 104-116, p. 6.
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Senator Dodd praised the Clinton administration's
reinventing government program that did away with the ``one-
size-fits-all'' view toward regulation. Senator Dodd noted that
``OSHA is now offering employers the option of working in
partnership with it to create a safe and productive work
environment. The agency also now provides incentives for
businesses that have good records on complying with safety
regulations.'' \13\
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\13\ S. Hrg. 104-116, p. 125.
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Limited Resources
There also was agreement that Federal Government resources
were limited. OSHA's assistant secretary told the committee
that his agency ``has a frequency of inspection of once every
23 years for hazardous workplaces.'' \14\ The AFL-CIO submitted
a table to the committee, printed in the hearing record,
indicating the range of years--from 18 years in Oregon to 247
years in South Dakota--needed for OSHA to inspect all job sites
in the United States.\15\
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\14\ S. Hrg. 104-116, p. 94.
\15\ S. Hrg. 104-353, p. 130.
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Given its limited resources, witnesses presented numerous
suggestions to improve OSHA's effectiveness. Joseph Kinney,
director of the National Safe Workplace Institute, testified
that safety awareness and education are probably the most
important ways to improve workplace injury records. According
to Mr. Kinney:
If you look at safety, there are many different
issues that impact it, Government being just one.
Others are certainly insurance--litigation, ethics,
morality, values and education. In fact, if I had to
choose one, I would say that probably education is the
one that is going to make the difference because by
informing people, we will have a higher value for
safety and health.\16\
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\16\ S. Hrg. 104-116, p. 23.
Perhaps for that reason, David Whiston, president of the
American Dental Association, advocated reinventing OSHA ``to
emphasize consultation and training instead of penalties and
punitive measures.'' \17\ Dr. Whiston also believed that the
agency's enforcement personnel should issue warnings in lieu of
citations for first-time violations to promote abatement of
hazards rather than penalties.
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\17\ S. Hrg. 104-116, p. 108.
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The committee also heard testimony from Duane Guy, acting
director of labor management relations in the Kansas Department
of Human Resources and director of the onsite consultation
program in Kansas. Under that program, small employers receive
advice, without fear of citations or fines, on how to improve
workplace safety and also to comply with OSHA requirements. The
Federal Government pays for 90 percent of the program.
Reminding the committee that OSHA had limited resources for
enforcement as well as consultation and education, OSHA
Assistant Secretary Joseph Dear informed the committee that his
agency's reinvention effort was designed to leverage his
resources. According to the OSHA official:
I believe that with a credible enforcement program,
we will increase the demand for voluntary assistance
and that as we create other ways to develop incentives
to encourage employers, like our nationalization of the
``Maine 200'' concept and the focused inspection
concept, that we will find opportunities to leverage
resources to get much greater improvement than we could
get if we only relied on enforcement.\18\
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\18\ S. Hrg. 104-116, p. 104.
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private sector, third-party consultants
Two years before the Administration published its ``New
OSHA'' reinvention document, Vice President Al Gore's National
Performance Review, ``From Red Tape to Results: Creating a
Government that Works Better and Costs Less,'' suggested using
market mechanisms to improve health and safety. The vice
president's report recognized that with limited government
resources, there was no way for OSHA inspectors to visit every
work site to enforce OSHA standards.
Accordingly, the report stated:
[N]o army of OSHA inspectors need descend upon
corporate America. The health and safety of American
workers could be vastly improved--without bankrupting
the Federal treasury.
The Labor Secretary already is authorized to require
employers to conduct certified self-inspections. OSHA
should give employers two options with which to do so:
They could hire third parties, such as private
inspection companies; or they could authorize non-
management employees, after training and certification,
to conduct inspections. In either case, OSHA would set
inspection and reporting standards and conduct random
reviews, audits, and inspections to ensure quality.
(Emphasis added).\19\
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\19\ Albert Gore, Report of the National Performance Review, 1993,
p. 63.
Mr. Vernon Rose, president of the American Industrial
Hygiene Association, testified in support of using third party
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certification. Specifically, Mr. Rose told the committee:
* * * we also believe that OSHA should have a scheme
for third-party assistance. * * * There are more than 6
million workplaces in the United States that are under
the jurisdiction of OSHA. Currently, there are about
2,400 compliance officers, both State and Federal. It
is obvious that all of these workplaces are not going
to be visited by compliance officers.
OSHA's goal should be that every employer have an
assessment of safety and health in their workplace,
conducted by a competent health and safety
professional. In view of limited resources, and with
due respect to the 7(c)(1) program that Mr. Guy
represents, we need to have additional resources made
available for these workplace assessments.
The consultants should come from the private sector
and from the professional organizations. * * * \20\
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\20\ S. Hrg. 104-116, p. 24-25.
Mr. Joseph Kinney, from the National Safe Workplace
Institute, concurred with Mr. Rose on the use of third parties
to conduct workplace safety audits. Mr. Kinney told the
committee: ``I agree with the whole idea of third-party
certification.'' \21\
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\21\ S. Hrg. 104-116, at p. 29.
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Synthesizing the Administration's reinvention materials and
the testimony of Mr. Dear and other witnesses, the committee
concluded that OSHA must be improved and must refocus and
leverage its limited resources by differentiating between safe
and unsafe workplaces. The agency also must change its emphasis
toward education and consultation, particularly with firms that
demonstrate a commitment to health and safety, by providing
positive incentives for firms to address health and safety.
Finally, OSHA must maintain a credible enforcement capability.
positive incentives
Several witnesses, including OSHA Assistant Secretary
Joseph Dear, provided examples of positive incentives that OSHA
could recognize. For instance, OSHA offered firms a choice of
``partnership'' or ``traditional enforcement'' depending upon
the firms' level of commitment to health and safety, as
demonstrated by establishing a health and safety program. Mr.
Dear described OSHA's Maine 200 program, which rewarded
employers with health and safety programs with inspection
exemptions, higher priority for assistance, regulatory relief
and penalty reductions.
In its ``New OSHA'' reinvention document, which described
the nationwide expansion of OSHA's Maine 200 program, the
Administration stated:
At its core, this new approach [partnership versus
traditional enforcement] seeks to encourage the
development of work site health and safety programs. In
a health and safety program, employers and employees
work together to find the best solutions to the
particular problems of their workplace. OSHA will be
looking for programs with these features: management
commitment, meaningful participation of employees, a
systematic effort to find safety and health hazards
whether or not they are covered by existing standards,
documentation that the identified hazards are fixed,
training for employees and supervisors, and ultimately
a reduction in injuries and illnesses.
To spur the spread of these programs, employers will
be offered a clear choice:
For firms with strong and effective health and safety
programs: partnership. OSHA recognizes that many, if
not most, employees are interested in protecting the
safety of their workers. Those who choose to work with
their employees and with OSHA in reducing injuries and
illnesses will find OSHA to be a willing partner. For
fully committed employers who are truly exceptional in
eliminating hazards and reducing injuries and
illnesses, OSHA will provide special recognition
including the lowest priority for enforcement
inspections (which, given remaining priorities, means
that inspections will be quite rare.); and the highest
priority for assistance, appropriate regulatory relief,
and penalty reductions of up to 100 percent. (Emphasis
added.) \22\
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\22\ S. Hrg. 104-353, p. 63.
OSHA's Maine 200 program, described above, provided
positive incentives to encourage firms to address health and
safety on their own. Those companies were rewarded with
inspections that would be ``quite rare'' and dramatically
reduced penalties if a violation were discovered through a
complaint or after an accident. According to the Administration
``The key to success is encouraging employers to work with
their employees in hazard identification and safety awareness,
rather than have those workers depend solely on OSHA
inspectors.'' \23\
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\23\ ``The New OSHA'', p. 4, cited in S. Hrg. 104-353, p. 64.
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Vernon Rose of the Industrial Hygiene Association concurred
that OSHA should adopt positive incentives for firms to
establish health and safety programs. Mr. Rose testified that
``OSHA's responsibility should be to develop compliance schemes
with incentives to encourage the widest possible acceptance and
implementation of health and safety programs in the
workplace.'' \24\
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\24\ S. Hrg. 104-116, p. 25. Mr. Rose also testified that firms
should be encouraged to audit their workplaces for safety problems.
According to Mr. Rose:
Employers should be encouraged to perform self audits or to
hire third-party reviewers to analyze company health and
safety management systems. Self-inspections and audits are
one of the essential tools for employers to maintain
effective health and safety programs. This would help
achieve the OSHA mission of improving health and safety. To
promote the use of audits, some form of legal and
regulatory protection for the employer is needed. * * * (S.
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Hrg. 104-116, p. 46.)
The committee noted that OSHA already offers two programs--
the consultation program and the Voluntary Protection Program
(VPP)--to encourage firms to establish health and safety
programs. OSHA's Safety and Health Achievement Recognition
Program (SHARP) part of the consultation service, ``provides
incentives and support to smaller, high-hazard employers to
work with their employees to develop, implement, and
continuously improve the effectiveness of their workplace
safety and health programs.'' \25\
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\25\ OSHA Instruction TED 3.5A, Chapter X, p. 1.
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OSHA described SHARP as a method to provide ``public
recognition of employers and employees who have worked together
successfully to establish exemplary safety and health
programs.'' \26\ Firms must have a ``lost workday injury rate
above the average for their industry or be an industry that is
on OSHA's high-hazard list'' to be eligible to enter the
program.\27\
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\26\ Id.
\27\ Id., p. X-2.
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Firms that undergo a review of their work site by a safety
consultant, establish a comprehensive health and safety program
that includes employee involvement, correct all identified
hazards, and lower their lost workday injury rate ``to or below
the national average for their injury'' were removed from
OSHA's general inspection schedule.\28\
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\28\ Id., p. X-3. See S. Hrg. 104-116, p. 31-32.
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A representative of the VPP program, Mr. James Andrews of
DOW Chemical Co., testified that ``VPP recognize[s] worksites
for achieving and maintaining excellence in worker safety and
health protection.'' \29\ Firms in the VPP that establish
comprehensive safety programs and meet safety benchmarks also
are exempt from regular, programmed OSHA inspections. According
to Mr. Andrews, exempting VPP sites from general inspections
permits ``OSHA [to] concentrate its enforcement efforts where
they are needed. * * *'' \30\
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\29\ S. Hrg. 104-116, p. 33.
\30\ Id., p. 34.
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Mr. Joseph Kinney of the National Safe Workplace Institute
supported positive incentives for firms to address workplace
safety. According to Mr. Kinney, ``I think there are incentives
that could be used, like third-party certification, that could
be tied to an assessment process.'' \31\ He also believed
``that third-party certification could be something that could
be adopted into statute fairly quickly, even by itself, without
a major overhaul. I certainly think it would go a long way or
be a meaningful step toward encouraging more confidence by
business in Government.'' \32\
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\31\ S. Hrg. 104-116, p. 28.
\32\ Id., p. 30.
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State initiatives
The committee was also aware of State initiatives to
improve safety and health. For instance, Governor Paris
Glendening of Maryland formed an Occupational Safety and Health
Task Force as part of his Regulatory Review Initiative to
improve the delivery of occupational safety services in
Maryland, a State-plan State for OSHA purposes. The task force
recommended improving the effectiveness of the consultation and
training programs, as well as increasing the availability of
incentive-based compliance programs.
Significantly, representatives from labor, industry and
government served on the task force. Union representatives
included the United Food and Commercial Workers (UFCW) Local
27, the Firefighters Association, the Amalgamated Transit
Union, International Brotherhood of Electrical Workers Local
24, United Auto Workers Local 354, and the president and the
safety committee chairman of the Maryland State & DC AFL-CIO.
Business representatives included Bethlehem Steel, GM Truck and
Micro Machining. The Democrat-appointed Commissioner of the
Maryland Department of Labor and Industry also served on the
task force.
According to the task force's final report:
The Task Force considered a number of Incentive-Based
Cooperative Programs designed to serve two
complementary purposes. Programs that encourage and
reward a commitment to safety and health accomplish the
dual goals of increasing safety for workers, while
freeing MOSH [Maryland Occupation Safety and Health]
staff to concentrate on noncomplying employers. * * *
The Task Force recommends that MOSH continue these
efforts to reward employers who have superior or
effective health and safety programs.\33\
\33\ Task Force Report, Nov. 21, 1994, p. 7.
One effort to reward firms with health and safety programs
was the ``Consultation Partnership Program,'' where employers
with a ``strong'' commitment to occupational safety were
``removed from general schedule inspections lists for a period
of up to 2 years.'' \34\ To qualify, firms must participate in
a health and safety consultation, maintain all the core
elements of a safety program, and address all hazards
identified during the consultation in a timely manner. The Task
Force also recommended that this program, including the
inspection exemption, be available to smaller employers that
lack the resources to participate in the Maryland State-plan
equivalent of the VPP program.\35\
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\34\ Task Force Report, p. 9.
\35\ Task Force Report, p. 9.
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employee involvement
To promote health and safety programs, OSHA Assistant
Secretary Joseph Dear and other witnesses testifying on behalf
of workplace safety organizations underscored the importance of
employee involvement. In its OSHA reinvention initiative, the
Administration wrote: ``Employer commitment and meaningful
employee participation and involvement in safety and health is
a key ingredient in effective programs.'' \36\
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\36\ ``The New OSHA,'' p. A-1, Appendix A--``OSHA's Principles for
Protecting America's Workers,'' cited in S. Hrg. 104-353, p. 71.
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In fact, in order to qualify for the inspection exemption
under the Administration's reinvention program (similar to the
Maine 200 program), as well as VPP and SHARP, employers must
maintain a health and safety program that included employee
involvement.
The Administration noted as part of its reinvention program
that it would actively promote employee involvement. ``OSHA
will promote worker participation in efforts to achieve safe
and healthful workplaces. * * * Workers possess a keen
awareness of hazards to which they are exposed. Many workplaces
have tapped into this important resource and achieved
successful results with innovative approaches that involve
safety and health programs and cooperative efforts between
management and workers.'' \37\
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\37\ ``The New OSHA,'' p. 5, cited in S. Hrg. 104-353, p. 65.
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In fact, OSHA's Augusta, ME, Area Office issued a guidance
statement, CPL 2.1A, on its Maine 200 Program encouraging
employers to establish safety programs that included employee
involvement. During the Senate Committee on Labor and Human
Resources hearing on OSHA reform, OSHA Assistant Secretary Dear
spoke favorably of the Maine 200 initiative.\38\
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\38\ S. Hrg. 104-116, p. 91.
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In Maine 200, OSHA encouraged the top 200 employers in
Maine that experienced the greatest number of serious workplace
injuries and illnesses to establish a health and safety program
that included employee involvement. OSHA indicated that it
would seek to determine whether the health and safety program
had ``provisions for employee involvement in safety and health
matters. An employee safety and health committee is the
preferred method, but equivalent systems will be considered by
the AAO on an individual basis.'' \39\
---------------------------------------------------------------------------
\39\ Augusta Area Office Instruction CPL 2.1A, June 25, 1993, p. 7.
---------------------------------------------------------------------------
Enforcement
Some witnesses before the Senate Committee on Labor and
Human Resources also noted the continuing importance of OSHA's
enforcement program. OSHA Assistant Secretary Dear told the
committee that for employers ``who disregard their workers'
health and safety,'' OSHA needed to maintain a ``strong
enforcement program.'' \40\ Part of that ``credible enforcement
program'' included the egregious penalty policy, where OSHA
multiplied the penalty times the number of workers who were
exposed to the hazard. The policy permitted OSHA to generate
multimillion dollar fines for safety and health violations.
---------------------------------------------------------------------------
\40\ S. Hrg. 104-116, p. 92.
---------------------------------------------------------------------------
Mr. Ron Hayes, whose son was killed in a corn silo at
Showell Farms in Florida, testified that OSHA had inspected
Showell Farms 20 times over the last 18 years, yet safety
problems in the corn silo at the poultry processor
remained.\41\ Mr. Hayes was looking for some accountability
from OSHA. He wanted OSHA to follow its own procedures in
investigating and citing the employer for his son's death.
---------------------------------------------------------------------------
\41\ S. Hrg. 104-116, at p. 3.
---------------------------------------------------------------------------
And Mr. Hayes asked Senator Gregg what should be done for
employers that repeatedly violate Federal safety standards.
Senator Gregg replied, ``I think you get very aggressive with
those companies.'' \42\
---------------------------------------------------------------------------
\42\ S. Hrg. 104-116, at p. 13.
---------------------------------------------------------------------------
Witnesses before the committee were not opposed to OSHA
enforcement of legitimate hazards. Instead, William Steinmetz
from the National Roofing Contractors Association expressed
concern that 12 of the top 20 OSHA citations for 1994 were for
paperwork violations.\43\ In the hearing record, the committee
noted that OSHA issued a ``serious'' citation to a company in
Illinois for failing to properly maintain a written Hazard
Communication Program for automatic dishwashing detergent.\44\
In addition, Senator Kassebaum noted that a Kansas electrical
contractor was fined $250 for not signing his injury and
illness log and another $250 for not posting his OSHA
poster.\45\
---------------------------------------------------------------------------
\43\ S. Hrg. 104-116, at p. 107.
\44\ S. Hrg. 104-116, at p. 150.
\45\ S. Hrg. 104-116, at pp. 1, 79.
---------------------------------------------------------------------------
OSHA's assistant secretary, Joseph Dear, testified that the
current enforcement system had problems. According to Mr. Dear:
``The instances that you [Senator Gregg] cite, that the
chairman cited [involving the Kansas electrical contractor] of
employers being penalized for a poster violation or for not
having an injury log signed, those are the kinds of problems
that I am trying to correct because they do undermine support
for the purpose of the act, which is to save lives.'' \46\
---------------------------------------------------------------------------
\46\ S. Hrg. 104-116, at p. 94.
---------------------------------------------------------------------------
When Senator Gregg asked Mr. Dear whether he supported
creating a ``nonserious violation structure'' and ``warnings in
lieu of a citation structure'' for paperwork violations, Mr.
Dear responded that he could do that without amending the
statute. But he also seemed to suggest that he recognized that
these paperwork and other nonserious citations were a problem.
In Mr. Dear's view, ``[T]hat is one of the things we are
accomplishing with the initiatives announced by President
Clinton.'' \47\
---------------------------------------------------------------------------
\47\ S. Hrg. 104-116, p. 94.
---------------------------------------------------------------------------
The committee noted that the State of Maryland, through its
Task Force on Occupational Safety and Health, had investigated
possible changes to its enforcement program that were similar
to the suggestions raised by Senator Gregg. For ``other-than-
serious'' violations, the Task Force recommended that employers
with excellent safety and health programs would not be cited or
penalized for violations corrected during the course of an
inspection. And for ``other-than-serious'' violations that were
corrected within a ``reasonable period of time,'' the citation
or penalty would be waived.\48\
---------------------------------------------------------------------------
\48\ Task Force Report, p. 10.
---------------------------------------------------------------------------
Senator Gregg was particularly interested in these
enforcement issues. He testified during the committee's OSHA
reform hearing in 1995 that one of his constituents in New
Hampshire was fined $975 in the winter of 1993 for having pot
holes in the parking lot. Another constituent was fined $300
because an electrical fan he purchased did not have three-
pronged electrical plugs.\49\
---------------------------------------------------------------------------
\49\ S. Hrg. 104-116, p. 85. During the committee's joint hearing
with the Senate Committee on Small Business, Earl Bradley, president of
EBAA Iron, Inc. of Texas, related similar frustrating experiences with
OSHA. Mr. Bradley testified that his company was cited $1,000 for sand
on the floor of his iron foundry (OSHA alleged the sand was a tripping
hazard), $1,500 for a guardrail that OSHA alleged was too low (even
though the lower rail made it easier to pour molten iron into the
molds) and $3,500 for failure to require employees to wear steel-toed
shoes even though such shoes can increase the risk of injury to
workers. (S. Hrg. 104-316, p. 161.)
---------------------------------------------------------------------------
Senator Gregg also noted that institutionally, OSHA was not
necessarily focused on eliminating workplace hazards. For
example, Senator Gregg cited OSHA's fiscal year 1994 goals,
titled ``Saving Lives, Preventing Injuries, Protecting the
Health of American Workers,'' where OSHA listed among its goals
to increase inspections by 5 percent and to increase penalties
by 5 percent.\50\
---------------------------------------------------------------------------
\50\ S. Hrg. 104-116, p. 85.
---------------------------------------------------------------------------
OSHA apparently reversed this ``by the numbers'' policy in
1995 and 1996. The agency claimed that ``in the past, OSHA
inspectors were measured not on the basis of safety at the
workplace, but on the basis of violations found. Employers were
cited not only for genuine safety hazards, but also for minor
or paperwork violations.'' \51\ OSHA Assistant Secretary Joseph
Dear informed the committee that OSHA no longer uses the number
of inspections, citations, or penalties as a measure of OSHA's
performance.\52\ In other words, OSHA repudiated its ``quota''
policy.
---------------------------------------------------------------------------
\51\ ``The New OSHA,'' at p. 8, cited in S. Hrg. 104-353, p. 68.
\52\ S. Hrg. 104-353, p. 58.
---------------------------------------------------------------------------
In addition, recognizing that inspectors focused on
paperwork and other mere technical violations of Federal safety
law rather than hazards directly related to safety, OSHA
announced in its reinvention initiative that citations for
paperwork were declining, citations for failure to post the
OSHA poster would no longer be issued, and new inspection
guidelines would assure that firms would not be cited for
failure to maintain a material safety data sheet for common
household consumer products.\53\ OSHA indicated that its
``culture'' was changing, and inspectors were being ``empowered
to use judgment and common sense'' during the inspection
process.\54\
---------------------------------------------------------------------------
\53\ ``The New OSHA,'' p. 8, cited in S. Hrg. 104-353, p. 68.
\54\ ``The New OSHA,'' p. 9, cited in S. Hrg. 104-353, p. 69.
---------------------------------------------------------------------------
Underscoring its recognition of the problem, OSHA issued a
new policy guidance statement, CPL 2.111 (1995), setting forth
a new policy on citing employers for paperwork violations. That
instruction stated:
[v]iolations of certain standards which require the
employer to have a written program * * * or to make
written certification * * * are perceived to be
``paperwork deficiencies''. * * * OSHA is involved in
an effort to redirect limited resources to those
activities which most promote its central mission.
Unnecessary issuance of citations for minor technical
violations of paperwork and written program
requirements undermines the agency's efforts to promote
the agency mission.\55\
---------------------------------------------------------------------------
\55\ CPL 2.111, p. 2.
In addition to warnings in lieu of citations for ``minor
technical violations of the law and written program
requirements,'' OSHA also endorsed reduced penalties for
paperwork violations. Under CPL 2.111, where an employer failed
to maintain injury and illness records, but there were no
injuries or illnesses at the work site, ``a citation shall not
be issued.'' \56\ In cases where records were maintained but
reference to a specific injury was omitted, a citation for
``failure to record'' shall be issued, but no penalties would
be levied unless the employer received a prior warning.\57\
---------------------------------------------------------------------------
\56\ CPL 2.111, p. 3.
\57\ CPL 2.111, p. 4.
---------------------------------------------------------------------------
OSHA also endorsed reduced penalties in exchange for prompt
abatement of hazards discovered during the inspection. In its
reinvention document, ``The New OSHA,'' the agency claimed it
had ``successfully'' experimented with its ``quick-fix''
program. As an incentive to abate hazards immediately and
eliminate costly and time-consuming litigation should the
employer contest the citation, OSHA inspectors reduced
penalties for violations abated during the inspection.\58\
According to OSHA, the quick-fix program was responsible for a
29 percent increase in the immediate abatement of
violations.\59\
---------------------------------------------------------------------------
\58\ ``The New OSHA,'' p. 8, cited in S. Hrg. 104-353, p. 69.
\59\ ``The New OSHA,'' Appendix B, cited in S. Hrg. 104-353, p. 81.
---------------------------------------------------------------------------
The committee took note of OSHA's reinvention initiatives
and believed they underscored OSHA's own acknowledgment that
our workplace safety policies must be reformed. After Assistant
Secretary Joseph Dear explained OSHA's new policy of not citing
employers for paperwork violations (e.g., citations for posters
and failing to sign an injury log), Senator Kassebaum expressed
the importance she attached to making these changes permanent.
In Senator Kassebaum's view:
[T]here has been a lot of talk back and forth about
what we should put into statutory language. I just
would be concerned that in the future, another
assistant secretary might decide not to do that and to
go back. It seems to me we do have to look at some
changes that contribute to the change in attitude that
you are trying to accomplish. We have to do it in such
a way that it will be lasting. Some systemic efforts
that really [will] reinforce what I think you are
attempting to do to create a different culture,
regarding a partnership for health and safety concerns,
are necessary. * * *
* * * You are beginning to try to make some changes
that certainly seem to me at this point to be
important, but I would hope that we can work together
to actually put some statutory language together,
because it seems to me that that is important.\60\
\60\ S. Hrg. 104-116, p. 101.
The committee also took note of OSHA's attempt to
streamline its enforcement process and improve its response
time to complaints. Dr. David Whiston of the American Dental
Association testified in support of OSHA's phone/fax procedure,
in lieu of onsite inspections, to investigate routine
complaints. Under this procedure, when OSHA received a
complaint involving a dental office, it phoned or faxed the
dental office to notify the office that a complaint had been
filed and to request evidence of abatement within 5 days.\61\
---------------------------------------------------------------------------
\61\ S. Hrg. 104-116, p. 108.
---------------------------------------------------------------------------
OSHA expanded this procedure beyond dental offices. In
pilot testing, OSHA stated that it reduced the time to achieve
hazard abatement by more than 75 percent.\62\ The phone/fax
procedure conserved scarce enforcement resources because OSHA
inspectors did not respond with an onsite inspection, and
``hazards [were] abated faster'' with ``better customer
service.'' \63\
---------------------------------------------------------------------------
\62\ See Memorandum to Regional Administrators from John Miles,
Director of Compliance Programs, May 2, 1995.
\63\ Id. In his budget request for the 1997 fiscal year, OSHA
Assistant Secretary Joseph Dear testified before the House Committee on
Appropriations Subcommittee on Labor, Health and Human Services,
Education and Related Agencies (May 8, 1996) that the phone/fax system
reduced the time from complaint to hazard abatement from 32.5 days to
8.5 days in Atlanta, GA, 35 days to 11 days in Columbus, OH, and 39
days to 9 days in Wichita, KS. OSHA apparently plans to expand the
phone/fax system to cover formal as well as informal complaints. Daily
Labor Report, BNA, May 16, 1996, p. A-4.
---------------------------------------------------------------------------
OSHA's reinvention effort included an attempt to focus on
the worst hazards in the most dangerous industries. OSHA noted
that it currently treats all employers within an industry
alike, regardless of their individual performance. In the
future, however, the agency will seek to target its resources
more effectively.\64\
---------------------------------------------------------------------------
\64\ ``The New OSHA,'' p. 9-10, cited in S. Hrg. 104-353, p. 69-70.
---------------------------------------------------------------------------
The committee noted, however, that attempts to more
efficiently deploy OSHA's enforcement resources were hampered
by the Department of Labor's interpretation of the OSH Act.\65\
The Department of Labor believes that OSHA inspectors must
respond with an onsite inspection when the agency receives a
formal (signed, written) complaint alleging a violation,\66\
despite wording of the OSH Act, section 8(f)(1), which states
that an inspector must respond with an onsite inspection when
the agency has ``reasonable grounds'' to believe that a hazard
or violation exists.
---------------------------------------------------------------------------
\65\ The Department of Labor's interpretation of the OSH Act could
change in the future, however, because OSHA Assistant Secretary Joseph
Dear told the committee: ``We have discovered a great deal more
flexibility in the [OSH] Act than many people previously thought was
there.'' (S. Hrg. 104-353, p. 29.)
\66\ OSHA Assistant Secretary Joseph Dear, S. Hrg. 104-353, p. 18.
---------------------------------------------------------------------------
Senator Jeffords noted that OSHA inspectors found serious
hazards half the time when they conducted complaint
inspections, but the percentage was almost exactly the same
when they conducted random inspections. According to Senator
Jeffords:
What we are trying to do * * * is to allow you [OSHA]
to be more efficient. And one area where we are trying
to help you is to say maybe there are better ways and
quicker ways to get things done than necessarily an
inspection. I think the statistics show that you go out
and inspect, and about 50 percent of the time, you find
something wrong, and when you get an employee
complaint, about 50 percent of the time you find
something wrong.
So we are trying to give you the flexibility to
enable you to solve the employee complaint other than
by an inspection, to allow you to make phone calls or
whatever else to make sure that if you go out there,
there is really something there. * * * \67\
---------------------------------------------------------------------------
\67\ S. Hrg. 104-353, p. 28.
Witnesses before the committee had other recommendations,
too. Dr. David Whiston of the American Dental Association,
after endorsing the phone/fax system for dental offices, noted
that OSHA should target high-hazard employers while recognizing
the special problems that small businesses might have with
compliance. Dr. Whiston told the committee: ``The American
Dental Association believes that reforming OSHA will help to
focus the agency's resources and make it better able to carry
out its mission.'' \68\
---------------------------------------------------------------------------
\68\ S. Hrg. 104-116, p. 108.
---------------------------------------------------------------------------
Later, Dr. Whiston testified:
A small-employer exemption from all random
inspections and the OSHA paperwork requirements should
be part of any legislation passed by this committee, we
believe. The random exemption for dental offices is
consistent with current OSHA thinking. The agency has
already agreed not to use its limited resources to
randomly inspect dental offices. We believe that this
exemption should be codified for all small employers,
specifically, those employers with good health and
safety records. In addition, an exemption from paper
requirements, such as the HAZCOM standard, would lift a
great burden off small employers without undermining
employee health and safety.\69\
---------------------------------------------------------------------------
\69\ S. Hrg. 104-116, p. 108.
The committee noted that since 1978, Congress has exempted
small employers (fewer than 11 employees) with better-than-
average safety records from random OSHA safety inspections.
In conclusion, the Senate Committee on Labor and Human
Resources reviewed Vice President Gore's National Performance
Review recommendations on OSHA reform, the Administration's
reinventing OSHA report, and various other workplace safety
reinvention projects at the State level. The Committee also
held hearings on OSHA reform. Based upon the Administration's
acknowledgment that our Federal workplace safety program needed
reform, OSHA Assistant Secretary Dear's statements that
``proceeding with `business as usual' '' was unacceptable \70\
and testimony from witnesses representing workers, health and
safety professionals, and firms, the Senate Committee on Labor
and Human Resources concluded that OSHA reform was necessary to
improve worker health and safety.
---------------------------------------------------------------------------
\70\ S. Hrg. 104-116, p. 131.
---------------------------------------------------------------------------
The committee concluded that Federal workplace safety laws
should have an improved education and consultation program to
provide employers with the information they need to comply with
the law. In addition, the committee noted that with limited
Federal resources, our workplace safety needs would be best met
by establishing a series of positive incentives for firms to
address safety on their own. Such a program would encourage
employers to use private sector auditors and to establish
health and safety programs that include management commitment,
employee involvement, and hazard identification and abatement.
At the same time, with regard to enforcement, OSHA needed a
credible policy that focused on real workplace hazards rather
than on paperwork or other technical violations of the law.
This policy would refocus OSHA on performance measurements
(injury rates) rather than on inspector quotas.
III. Legislative History and Committee Action
On June 21, 1995, and June 22, 1995, the Senate Committee
on Labor and Human Resources held hearings on OSHA reform (S.
Hrg. 104-116), and the following individuals provided
testimony:
June 21
Ron Hayes of Alabama, whose son was killed in a corn silo.
Ray Montaigne, Capitol Heights, MD, a construction industry
safety professional on behalf of the Associated Builders and
Contractors.
James C. Andrews of Texas, safety professional from Dow
Chemical Co. on behalf of the Voluntary Protection Participants
Association of McLean, VA.
Rick Treaster, president of Local 2400, Amalgamated
Clothing and Textile Workers Association of Lewistown, PA.
Duane Guy, acting director of Labor Management Relations
and Employment Standards Division, Kansas Department of Human
Resources, Topeka, KS.
Patrick E. Bush, coordinator for workers' compensation;
Western Resources, Topeka, KS.
Joseph A. Kinney, director, National Safe Workplace
Institute, Monroe, NC.
Vernon E. Rose, Birmingham, AL, president of the American
Industrial Hygiene Association.
Additional statements and letters regarding OSHA reform
were also received and placed in the record.
June 22
Joseph Dear, Assistant Secretary, OSHA, U.S. Department of
Labor, Washington, DC.
William Steinmetz, South Bend, IN, on behalf of the
National Roofing Contractors Association.
David Whiston, Vienna, VA on behalf of the American Dental
Association.
Michael Wright, Pittsburgh, PA, on behalf of the United
Steel Workers of America, AFL-CIO.
Additional statements and letters regarding OSHA reform
were received and placed in the record.
On November 17, 1995, Senators Gregg, Kassebaum, Nunn,
Jeffords, and Gorton introduced the Occupational Safety and
Health Reform and Reinvention Act, S. 1423.
On November 29, 1995, the Senate Committee on Labor and
Human Resources held a third hearing on OSHA reform (S. Hrg.
104-353). The following individuals provided testimony:
Joseph Dear, Assistant Secretary, OSHA, U.S. Department of
Labor, Washington, DC.
Dr. Forrest Fisher, cochairman, Government Affairs
Committee, American College of Occupational and Environmental
Medicine, Camden, NJ.
Katherine Gekker, owner of The Hoffman Press, Alexandria,
VA, on behalf of the Printing Industries of America.
David J. Heller, executive director for environmental
health and safety, US West, Inglewood, CO, on behalf of the
Labor Policy Association, Washington, DC.
Linda Chavez-Thompson, executive vice president, AFL-CIO,
Washington, DC.
Additional statements and letters regarding OSHA reform
were received and placed in the record.
On December 6, 1995, the Senate Committee on Labor and
Human Resources held a fourth hearing on OSHA reform, this time
in the form of a joint hearing with the Senate Committee on
Small Business. The following individuals provided testimony:
Mark S. Hyner, president of Whyco Chromium Co., Thomason,
CT.
Daniel E. Richardson, administrator, Latta Nursing Home A,
Latta Road Nursing Homes, Rochester, NY.
Earl Bradley, president, EBAA Iron, Inc., Eastland, TX.
Mike McMichael, president of McMichael Co., Central, SC.
Paul Middendorf, director, OSHA Consultation Program of
Georgia, Atlanta, GA.
John Cheffer, chairman, National Government Affairs
Committee, American Society of Safety Engineers, Des Plaines,
IL.
David Carroll, director of safety, Woodpro Cabinetry, Inc.,
Cabool, MO.
Robert A. Georgine, president, Building and Construction
Trades Department, AFL-CIO, Washington, DC.
Deborah Berkowitz, director, office of occupational safety
and health, United Food and Commercial Workers International
Union, Washington, DC.
Additional statements and letters regarding OSHA reform
were received and placed in the record.
On February 28, 1996, and March 5, 1996, the Senate
Committee on Labor and Human Resources met in Executive Session
to consider Senate bill 1423, the OSHA Reform and Reinvention
Act. The committee voted on the following amendments:
Senators DeWine and Abraham offered an amendment striking
the provision that only employees or employee representatives
may file formal OSHA complaints. The amendment was agreed to by
voice vote.
Senator Dodd offered an amendment establishing an office
construction safety within OSHA and mandating that construction
sites maintain health and safety programs. The amendment was
rejected (7-9).
YEAS NAYS
Kennedy Kassebaum
Pell Jeffords
Dodd Coats
Simon Gregg
Harkin Frist
Mikulski DeWine
Wellstone Ashcroft
Abraham
Gorton
Senator Simon offered an amendment debarring Federal
contractors with a pattern of OSHA violations. The amendment
was initially accepted, but a quorum was lacking. The committee
voted (9-7) to reconsider the amendment, and on
reconsideration, rejected the amendment (7-9).
Vote to reconsider:
YEAS NAYS
Kassebaum Kennedy
Jeffords Pell
Coats Dodd
Gregg Simon
Frist Harkin
DeWine Mikulski
Ashcroft Wellstone
Abraham
Gorton
Vote on amendment:
YEAS NAYS
Kennedy Kassebaum
Pell Jeffords
Dodd Coats
Simon Gregg
Harkin Frist
Mikulski DeWine
Wellstone Ashcroft
Abraham
Gorton
Senator Kennedy offered an amendment to modify the
provisions relating to citations, amending the warnings in lieu
of citations provision. The amendment failed on a rollcall vote
of 7-9.
YEAS NAYS
Kennedy Kassebaum
Pell Jeffords
Dodd Coats
Simon Gregg
Harkin Frist
Mikulski DeWine
Wellstone Ashcroft
Abraham
Gorton
Senator Kennedy offered an amendment to strike the
mandatory penalty reductions in S. 1423. The amendment failed
on a rollcall vote (7-9).
YEAS NAYS
Kennedy Kassebaum
Pell Jeffords
Dodd Coats
Simon Gregg
Harkin Frist
Mikulski DeWine
Wellstone Ashcroft
Abraham
Gorton
Senators Jeffords and Abraham offered an amendment assuring
that a complainant's name not be released to the employer. The
amendment was adopted by rollcall vote:
YEAS NAYS
Kassebaum None
Jeffords
Coats
Gregg
Frist
DeWine
Ashcroft
Abraham
Gorton
Kennedy
Pell
Dodd
Simon
Harkin
Mikulski
Wellstone
Senator Wellstone offered an amendment to modify the OSHA
complaint procedure and to maintain the employee entitlement to
an inspection. The amendment failed on a tie (8-8) vote.
YEAS NAYS
Kassebaum Jeffords
Kennedy Coats
Pell Gregg
Dodd Frist
Simon DeWine
Harkin Ashcroft
Mikulski Abraham
Wellstone Gorton
Senator Kennedy offered an amendment related to criminal
penalties. The amendment failed (7-9) on a rollcall vote:
YEAS NAYS
Kennedy Kassebaum
Pell Jeffords
Dodd Coats
Simon Gregg
Harkin Frist
Mikulski DeWine
Wellstone Ashcroft
Abraham
Gorton
Senator Kennedy offered an amendment by Senator Harkin to
strike the provisions related to employee involvement. The
amendment failed (7-9) on a rollcall vote:
YEAS NAYS
Kennedy Kassebaum
Pell Jeffords
Dodd Coats
Simon Gregg
Harkin Frist
Mikulski DeWine
Wellstone Ashcroft
Abraham
Gorton
Senator Wellstone offered an amendment providing enhanced
``whistle blower'' protection and remedies to complainants,
which failed (7-9) on a rollcall vote:
YEAS NAYS
Kennedy Kassebaum
Pell Jeffords
Dodd Coats
Simon Gregg
Harkin Frist
Mikulski DeWine
Wellstone Ashcroft
Abraham
Gorton
Senator Simon offered an amendment to mandate OSHA coverage
for Federal, State, and local public sector workers. The
amendment was agreed to (9-7) on a rollcall vote:
YEAS NAYS
Jeffords Kassebaum
Abraham Coats
Kennedy Gregg
Pell Frist
Dodd DeWine
Simon Ashcroft
Harkin Gorton
Mikulski
Wellstone
The committee then voted (9-7) to report the bill, as
amended, on a rollcall vote:
YEAS NAYS
Kassebaum Kennedy
Jeffords Pell
Coats Dodd
Gregg Simon
Frist Harkin
DeWine Mikulski
Ashcroft Wellstone
Abraham
Gorton
IV. Explanation of the Bill and Committee Views
Senate bill 1423 will improve workplace safety for workers,
assist small employers to comply with Federal safety standards,
leverage Federal resources, and refocus OSHA inspectors on the
most serious hazards in the most dangerous industries. This
effort represents an important step away from the ``era of big
government'' and toward the era of cooperative, responsive, and
flexible government.
The bill's provisions are not new. Instead, the bill simply
codifies the Clinton administration's OSHA reinvention effort.
As explained below, notwithstanding the Administration's claims
to the contrary, the bipartisan legislation will not in any way
lower safety standards for American workers. Instead, it is a
significant improvement to permit the Department of Labor to
implement the recommendations set forth in Vice President
Gore's reinventing government report and as presented by OSHA
Assistant Secretary Joseph Dear to the committee during his
appearances before the committee.
The committee listened carefully to the testimony of the
witnesses at the committee's 4 hearings on OSHA reform, and
studied the written material submitted by various interested
parties. The committee also carefully reviewed the
Administration's testimony and its OSHA reinvention material.
The committee therefore recommends that the full Senate
expeditiously consider the bipartisan legislation and enact it
into law.
health and safety reinvention initiatives
Senate bill 1423 establishes positive incentives for work
sites, including both workers and supervisors, to address
health and safety without relying on OSHA inspections. Having
relied on mass inspection alone in the past, OSHA must now
differentiate between work sites based upon their commitment to
workplace safety and health, and reward those work sites that
have made a commitment toward workplace safety.
OSHA, the business community and safety advocates
recognized that OSHA will never have the resources to inspect
every work site. Rather than attempting to rely on inspections
to discover violations, OSHA must encourage work sites to
address health and safety on their own. In the Department of
Labor's own words, ``The key to success is encouraging
employers to work with their employees in hazard identification
and safety awareness, rather than have those workers depend
solely on OSHA inspectors.'' \71\
---------------------------------------------------------------------------
\71\ ``The New OSHA,'' p. 4, cited in S. Hrg. 104-353, p. 64.
---------------------------------------------------------------------------
Senate bill 1423 encourages employers to address health and
safety on their own without relying on OSHA inspections. The
positive incentives provide an inspection exemption, which
applies only to programmed (not complaint) inspections, and
reduced penalties for employers that either establish an
effective health and safety program or that utilize certified
auditors to review the work site.
health and safety program
To qualify for the reinvention initiative, an employer must
establish a program that includes all the elements that the
Department of Labor has recognized as being necessary for a
health and safety program, including management commitment,
employee involvement, procedures to identify and address
hazards, and employee training. Employee involvement must
include regular consultation between management and
nonsupervisory employees, and nonsupervisory employees must be
given an opportunity to make recommendations and receive
responses to suggestions for addressing workplace hazards.
To demonstrate that the program is not just a ``paper''
program but instead actually has been implemented effectively
to reduce workplace accidents, the employer also must maintain
an exemplary health and safety record. The legislation uses the
same definition of the phrase ``exemplary health and safety
record'' that OSHA currently uses for firms that participate in
the SHARP program, e.g., firms with no workplace fatalities and
a lost workday rate at or below the national average for the
firm's particular industry. \72\
The committee wants to be clear that employers may not
qualify for the inspection exemption without actually
implementing a bona fide health and safety program. A ``paper''
program is not sufficient.
---------------------------------------------------------------------------
\72\ See OSHA's compliance directive, OSHA Instruction TED 3.5A, p.
X-4, which states that firms with ``exemplary programs'' qualify for
the inspection exemption. Such firms must have ``lost workday rates at
or below the national average for their industry.'' Thus, S. 1423
adopts OSHA's definition of an ``exemplary'' record in that it requires
a better than average lost workday rate, and it compares the firm's
lost workday rate to other firms in that particular industry rather
than all industries.
The committee also noted that in the Main 200 program, the
Department of Labor granted an inspection exemption to 200 firms with
the greatest number of occupational injuries, arguably the ``worst
actors,'' without even requiring them to have better than average lost
workday records for their industry.
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The Department of Labor has found that firms actually will
establish and implement health and safety programs when they
promise to do so. For instance, in the Maine 200 program, OSHA
encouraged companies with the greatest number of workplace
injuries--arguably the worst actors--to establish health and
safety programs. Those companies that responded positively were
removed from OSHA's primary inspection list. Senate bill 1423
would operate in the same way.
As a further deterrent to fraud, any company that falsely
certified that it had a safety and health program would be
subject to criminal penalties. Thus, the legislation has
serious deterrents to fraud.
third-party consultants
In addition, employers that utilize a board-certified
health and safety professional to conduct a work site
consultation would also be eligible for the programmed
inspection exemption and penalty reduction. Consultants must
meet the qualifications established by nationally recognized
standards organizations and must be certified by the Department
of Labor. Such consultants must, at a minimum, be at least as
qualified as OSHA inspectors and personnel utilized in the
onsite consultation program.\73\
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\73\ Significantly, OSHA has minimal qualifications for consultants
hired by State governments for the federally funded onsite consultation
program. According to OSHA, State onsite consultants must have the
ability: to identify and abate hazards, to assess employee exposure and
risk, and to demonstrate knowledge of OSHA standards and health and
safety programs. (S. Hrg. 104-353, p. 91.) Private sector consultants
will be more qualified than the onsite consultation consultants who
OSHA currently considers to be qualified to review the work site for
safety and health hazards.
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The committee does not intend the Department of Labor to
design and implement its own certification test. Rather, the
Federal Government should recognize national certification
bodies that perform that function. Thus, just as State bar
associations and medical board-certifying organizations
establish State standards for the practice of law and medicine,
respectively, so should the Department of Labor recognize
safety and health certifications established by nationally
recognized organizations.
Consultants must be board-certified safety and health
professionals. Individuals, such as ``certified safety
professionals'' and ``certified industrial hygienists,'' will
be performing the inspections. These consultants know as much,
if not more, about safety and health than OSHA inspectors
do.\74\
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\74\ In fact, OSHA only requires its safety inspectors to have a
bachelors degree with 24 credit hours of basic science or 3 years of
general technical experience. In contrast, board-certified safety
professionals and safety engineers must have a bachelors degree and
pass a comprehensive national examination.
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Certified private sector consultants, under the onsite
consultation program, a State workers' compensation program, or
simply by invitation from the employer, must conduct an onsite
review of the work site and ensure that any serious hazards
identified were corrected. If necessary, the consultant may
determine that a follow-up visit is necessary to address the
hazards that have been identified.
Those employers that make the effort to address health and
safety on their own would be exempt from surprise OSHA
inspections. Naturally, if an employee filed a complaint, or an
accident or serious injury occurred on the site, then OSHA
would, as expected in such a case, respond with an onsite
inspection.
The Clinton administration has recognized the value of
private sector consultants. In fact, Vice President Gore's
original reinventing government report stated ``no army of OSHA
inspectors need descend upon corporate America. * * * OSHA
should give employers two options * * * they could hire third
parties, such as private inspection companies [or train
nonsupervisory employees to conduct inspections].''
In addition, OSHA's form letter to employers under the
phone/fax system notified the employer that a complaint had
been filed and that OSHA needed proof of abatement. The agency
then informed employers that the State consultation service
offered help in ``resolving all occupational safety and health
issues * * * [but in the event of a backlog] you [the firm] may
be able to obtain similar services from your insurance carrier
or private consultant in a more timely fashion.'' \75\ Why
would OSHA refer an employer to an insurance carrier or private
consultant if OSHA did not believe they could do the job?
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\75\ S. Hrg. 104-353, p. 99.
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The committee carefully considered the issue of third-party
certification. Although some concerns were raised about the
independence of certified consultants, the committee is
confident that licensed, certified consultants will act
professionally. As Vice President Gore's reinventing government
report recognized, this body of private sector expertise should
be harnessed and put to good use.\76\
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\76\ The committee also noted that certified public accountants
(CPAs) perform financial audits, and in Virginia, automobile repair
facilities and gas stations perform automobile safety inspections.
These served as good examples of where the private sector has done the
job more efficiently than the public sector.
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The committee also noted that any consultant or employer
making a false certification to OSHA would be subject to
criminal penalties under the OSH Act. This is a powerful
disincentive to falsify documentation.
The committee is certain that the Department of Labor has
the resources to administer the provisions of S. 1423,
including the certification from the third-party consultants
and the certification that a firm has established an effective
safety and health program. Senate bill 1423 only requires
companies to submit a certification, which could be as short as
1 page in length, and that submission would only be required
for those companies participating in the program.\77\
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\77\ Ironically, lack of resources has not stopped OSHA from
proposing new and burdensome regulations on ergonomics and indoor air
quality. The concern about limited resources seems to have been applied
selectively, depending upon whether the Department of Labor supports or
opposes the legislative proposal.
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The filing may be done electronically to reduce the
paperwork. Other Federal agencies have much more lengthy
mandatory reporting, such as the Pension and Welfare Benefit
Administration and the Pension Benefit Guaranty Corporation for
employee benefit plans, as well as affirmative action and equal
employment opportunity forms that the Federal Government
requires firms to file.
OSHA has acknowledged that it cannot inspect every
workplace. The agency will be much more efficient if it more
fully utilizes private sector resources, with the agency
conducting monitoring audits to assure against fraudulent
reporting and certification (which carry criminal penalties).
Vice President Gore's reinventing government report recommended
that approach, and OSHA has used those procedures with the
Maine 200 program.
reduced penalties
Employers addressing health and safety through the
reinvention initiatives would experience reduced OSHA penalties
in the event of a citation. The penalty would be reduced at
least 25 percent if the employer maintained a health and safety
program or maintained an exemplary health and safety record.
The reduction would be 50 percent if the employer had both the
program and the exemplary record. And the penalty would be
reduced at least 75 percent if the employer used a certified
health and safety auditory to review the work site and the
employer complied with the auditor's recommendations.
The purpose of automatic penalty reductions for companies
that implement health and safety programs, have good safety
records, or use third-party consultants, is to create an
incentive for companies to ``do the right thing.'' The
committee wants to reward good behavior through positive
incentives, even if the work site falls short of absolute
perfection in the eyes of an inspector. 78
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\78\ The penalty reduction for work sites using a third-party
consultant only applied if the violation had not created an imminent
danger, caused a fatality or serious incident, or been repeat citation.
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For the positive incentives to be credible, firms require
some certainty that the inspection exemption and penalty
reduction are real. The only was to do that is to guarantee it
in the OSHA statute. OSHA's current plan, to grant a sliding
scale of penalty reductions, is not a credible incentive.
The committee noted that OSHA has supported automatic
penalty reductions in the past. In it's ``Reinventing Labor
Regulations'' report, 79 the Department of Labor stated
that ``OSHA will waive penalties for any employer with up to
250 employees who is found to have no significant (willful,
repeated, or serious) violations.'' In response to written
questions after a committee hearing, OSHA appeared to distance
itself from its own proposal, but there is not dispute that
last year, OSHA itself believed this to be good policy.
Moreover, OSHA has used a similar approach by offering an
inspection exemption and penalty waiver for work sites, in VPP,
Maine 200, and SHARP.
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\79\ June 15, 1995.
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Inspection Exemption
One of the positive incentives for firms to address health
and safety concerns on their own is the inspection exemption.
This also allows OSHA to concentrate its efforts on those work
sites where supervisors and workers are not committed to
addressing health and safety.
Senate bill 1423 is not the first time that OSHA or the
Congress granted health and safety inspection exemptions. As
described below, small employers under the annual Labor-Health
and Human Services appropriations rider and work sites
participating in the SHARP, VPP and the Maine 200 program, have
been removed from OSHA's general inspection schedule.
In the annual Labor-HHS appropriations rider, Congress
exempted small family farms, and small employers with better
than average safety records, from regular programmed safety
inspections. Congress included this rider in every
appropriations bill since 1978.
OSHA also provided an exemption from random inspections for
certain companies using the onsite consultation program
(usually smaller firms or those in high-hazard industries)
under the Safety and Health Achievement Recognition Program
(SHARP).80 To participate in the program, the State onsite
consultation service sends a consultant to the work site for a
review of injury and illness logs, written programs, and a
walk-through of the plant. Work sites that establish an
effective health and safety program and reduce their injury and
illness rates to below average for their industry are exempt
from programmed inspections.
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\80\ ``Consultation Services for the Employer,'' U.S. Department of
Labor, OSHA 3047, printed in S. Hrg. 104-316, p. 170.
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OSHA also recognized excellence in health and safety for
work sites through its VPP program. These companies with a
comprehensive health and safety program that underwent a
thorough evaluation by OSHA every 3-4 years were exempt from
regular, programmed inspections.
Finally OSHA touted the success of its Maine 200 program,
where the agency identified the 200 Maine companies with the
highest numbers of injuries and gave them a choice: establish a
comprehensive health and safety program, demonstrate a
reduction in workplace injuries, and be placed on OSHA's
secondary inspection list, or face a comprehensive, wall-to-
wall inspection. Companies on the secondary inspection list
were removed from the primary inspection list and would only be
subject to a monitoring audit, where OSHA would verify that the
health and safety program was being implemented.
During the committee's hearings, some criticized S. 1423,
claiming the bill would exempt 72 percent of employers from
OSHA inspections. This criticism was misplaced for several
reasons.
First, S. 1423 does not exempt any employers from complaint
inspections, so employers are still subject to OSHA regulation,
inspections, and citations. Second, the annual appropriations
rider alone, which has been enacted into law since 1978,
exempts 75 percent of our works sites from safety inspections
because OSHA does not conduct random safety inspections of any
employer with less than 10 employees. (In the United States,
there are a total of 6.4 million work sites, 4.78 million of
which have fewer than 10 employees.)
For the remaining larger employers (with more than 10
employees), OSHA targets high-hazard industries. According to
CRS, only about 384,000 work sites of the 6.4 million
establishments nationwide are subject to random OSHA
inspections. So in practice, the current system for random
inspections exempts about 94 percent of work sites from safety
inspections. It is astonishing that opponents, particularly the
Department of Labor, criticize S. 1423 for granting ``a
substantial majority'' of firms an inspection exemption when
OSHA's current inspection process exempts 94 percent of work
sites from safety inspections.
Consultation and Voluntary Protection Program (VPP)
In addition to providing positive incentives for employers
to establish health and safety programs and to use private
sector health and safety consultants, Senate bill 1423 also
codifies two very successful programs that enjoy bipartisan
support: the onsite consultation program and the Voluntary
Protection Program (VPP). Both programs use Federal Government
resources to give information to firms so they may identify and
abate workplace hazards.
Senate bill 1423 codifies the onsite consultation program,
also known as the section 7(c)(1) program. Heretofore, pursuant
to regulation, OSHA has offered grants to states to provide
health and safety assistance to small, and particularly high-
risk firms. Employers request that the consultation agency send
a consultant to the work site to review all relevant paperwork,
to walk around the work site to observe hazards, to talk with
employees about possible hazards, and to conduct a closing
conference to review the findings and discuss possible methods
to abate hazards. The consultation is conducted without fear of
generating an OSHA citation or fine, as long as the firm agrees
to address any hazards identified during the consultation.
Similarly, S. 1423 codifies the VPP program, where OSHA
recognizes larger work sites for their extraordinary commitment
to health and safety. After an extensive work site review, OSHA
awards VPP status to work sites with effective health and
safety programs and superior lost workday records. Such work
sites are removed from OSHA's programmed inspection list.
By codifying the consultation and VPP, the committee
intends to provide stability and permanence to these important
programs. Moreover, the committee believes codification
reaffirms the Federal commitment to providing the private
sector with the occupational safety information firms need to
comply with the law.
Limited Self-Audit Privilege
Separate and apart from the consultation, inspection
exemption, and penalty reduction program described above, or
other audits required by existing OSHA standards, Senate bill
1423 also provides a limited privilege for employer health and
safety audits. Under the legislation, records of health and
safety inspections, audits, or reviews conducted by employers
need not be disclosed to an OSHA inspector, except under
certain circumstances.
The purpose of the limited privilege is to encourage
employers to examine critically their health and safety
procedures, workplace conditions, and possible sources of
injuries and accidents. In the past, managers have been
deterred from conducting these audits knowing that an OSHA
inspector could use the records from such audits as the basis
for a willful citation.
Because the privilege is intended to encourage employers to
investigate and address workplace hazards, the privilege would
not apply unless the employer takes measures to address the
hazards that were identified during the audit. In addition, the
privilege does not extend to OSHA investigations involving
fatalities or serious injuries due to the government's interest
in investigating serious accidents.
The committee intends that the privilege would be applied
procedurally just as other matters of privilege, such as the
attorney-client privilege, are applied. Thus, employers would
assert the privilege when the OSHA investigator requests the
self-audit information. At a later time, the matter would be
litigated before an administrative law judge, the OSHA Review
Commission, or a court of competent jurisdiction.
Employee Involvement
Senate bill 1423 also takes an important step toward
promoting employee involvement on health and safety issues.
Rather than create a new Federal program, however, the
legislation instead simply removes the barriers that Federal
labor law places in the way of employee involvement.
The National Labor Relations Board has held that worker-
management health and safety committees, where workers discuss
health and safety issues with supervisors, violate the National
Labor Relations Act.\81\ Senate bill 1423 creates a safe-harbor
in Federal labor law for employee involvement programs that
meet to discuss, in whole or in part, health and safety issues.
The legislation also contains an important restriction limiting
its scope to nonunion settings, so an employer would be
prohibited under S. 1423 from trying to bypass its existing
union on health and safety issues.
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\81\ See Dillon Stores (NLRB, 1995) (worker suggestions for bakery
employees to be given safety goggles while working fryer violated
NLRA); EFCO (Case No. 17-CA-16911, 1995).
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The committee agrees with the U.S. Department of Labor that
``employer commitment and meaningful employee participation and
involvement in safety and health is a key ingredient in
effective programs.'' \82\ The committee also agrees that
``employee participation is vital to a safe working
environment.'' \83\ The Department of Labor has promoted
employee involvement in numerous ways, and the committee
applauds those efforts.
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\82\ ``The New OSHA,'' p. A-1, cited in S. Hrg. 104-353, p. 71.
\83\ Written testimony of OSHA Assistant Secretary Joseph Dear, S.
Hrg. 104-353, p. 53.
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For instance, in its reinvention effort, OSHA promises
``partnership'' rather than ``traditional enforcement'' for
companies with strong health and safety programs that include:
management commitment, employee involvement, procedures to
identify and abate hazards, and employee training. For
companies with strong health and safety programs, OSHA offered
to make inspections ``quite rare.'' (Emphasis added.) \84\
---------------------------------------------------------------------------
\84\ ``The New OSHA,'' pp. 3-4, cited in S. Hrg. 104-353, pp. 63-
64.
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In fact, when implementing this reinvention program through
the Maine 200 program, OSHA gave the 200 Maine employers with
the greatest number of worker's compensation claims a choice--
establish a strong health and safety program, or face a wall-
to-wall inspection. OSHA told employers that their program must
include a ``provision for employee involvement in safety and
health matters. An employee safety and health committee is the
preferred method, but equivalent systems will be considered * *
* on an individual basis.'' \85\ OSHA even wrote to one
employer participating in the Maine 200 program that it was
``delighted to see your `employee team concept' used to perform
[an] ergonomic job hazard analysis on high risk jobs.''
---------------------------------------------------------------------------
\85\ OSHA Augusta Area Office Instruction CPL 2.1A, June 25, 1993.
---------------------------------------------------------------------------
The performance agreement for 1995 between Labor Secretary
Robert Reich and OSHA Assistant Secretary Joseph Dear included
a section on employee involvement. That agreement stated:
OSHA will take advantage of opportunities to redefine
its relationship with the public. Partnerships with
business and labor will be strengthened to foster
excellence in worksite safety and health and high
performance workplaces through educational, training
and outreach programs; grass roots partnerships will be
formed as well. And cooperative labor-management
approaches to safety and health excellence will be
encouraged by demonstration of the advantages of
management commitment, teamwork and employee
involvement. (Emphasis added.) \86\
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\86\ Performance Agreement, p. 2.
The committee hopes it will assist OSHA Assistant Secretary
Joseph Dear to meet Secretary Reich's performance criteria by
permitting employee involvement on health and safety issues.
Senate bill 1423 will facilitate these cooperative efforts
between workers and supervisors.
The Department of Labor suggests that current
interpretations of Federal labor law permit employee
involvement programs with ``appropriate protections.'' \87\
However, as Senator Gregg pointed out to OSHA Assistant
Secretary Dear during an OSHA reform hearing: ``The fact is
that if an employer sets up an employee participation
committee, he can be subject to a labor law violation or the
potential for labor law violation. And you can give a lot of
verbal support to the concept of having employer-employee
relations and joint participation, but unless you get over that
threat, you have got a problem.''\88\
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\87\ S. Hrg. 104-353, p. 53.
\88\ S. Hrg. 104-116, p. 93.
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The ``appropriate protections'' most frequently mentioned
by opponents of the employee involvement provisions in S. 1423
are secret ballot elections. Ironically, the NLRB has used
secret ballot elections to find that the employee teams were
``employee representation committees'' dominated by management
in violation of the law.\89\
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\89\ Webcor Packaging, Inc. 319 NLRB No. 142, fn. 6 (1995) (``Plant
Council acted in a representational capacity because its employee-
members were elected by respondent's work force''); Dillon Stores, 319
NLRB No. 149 (1995) (employee committee elected by coworkers through
secret ballot, where members dealt with safety and other workplace
issues, violated Federal labor law).
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Finally, for those who claim that Federal labor law poses
no hindrance to worker-management committees or other employee
involvement programs, the committee noted that a Democrat-
endorsed OSHA reform bill, S. 575 (103d Congress), that
mandated that all employers with more than 10 employees
establish worker-management health and safety committees,
amended the National Labor Relations Act to assure that the
committees were not inconsistent with Federal labor law. The
Clinton administration and the AFL-CIO both endorsed this
legislation.
reforming osha enforcement
In addition to providing positive incentives and
eliminating the barriers firms face in addressing health and
safety on their own, the committee also believed that OSHA's
enforcement effort needed to be reformed. Senate bill 1423
amends OSHA's employee complaint process, OSHA's inspector
citation policy, and OSHA's penalty structure. These reform
efforts refocus OSHA on its basic mission, which is to improve
safety and health for workers, particularly at the most
dangerous work sites.
One method of improving workplace safety focused on
increasing the efficiency of OSHA's inspection process.
According to an AP Online report:
Three-quarters of U.S. work sites that suffered
serious accidents in 1994 and early 1995 had never been
inspected during this decade by the Federal workplace
safety agency. * * * Two key reasons OSHA did not make
advance visits to these lethal work sites are a
shortage of OSHA inspectors and its mandate to follow
up on all worker complaints, no matter how routine.
More than half the time, complaint inspections find no
serious violations. * * * [OSHA Assistant Secretary]
Dear says OSHA is trying to address the inspection
problems, including experiments to seek out unfounded
complaints by fax or telephone. * * *'' \90\
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\90\ AP Online, September 4, 1995. The report noted that ``more
than half the OSHA inspections triggered by formal complaints since
1989 failed to find any serious violations, while nearly a third found
no violations at all.'' (Id.) According to the report, ``OSHA officials
readily acknowledge the problem but say their hands are tied by the
1972 law that created the agency and required that all worker
complaints be inspected.'' (Id.)
According to the AP Online analysis, OSHA wasted 106,000
hours in 1994 on complaint inspections that found no
violations. Indeed, OSHA found serious hazards in complaint
inspections roughly the same percentage of the time as it did
with random inspections.\91\ In other words, OSHA could have
just as well picked work sites out of a hat (a random process)
rather than responded to specific complaints, and it would have
identified the same number of hazards. The committee found that
rather astounding. Clearly, the complaints process required
reform.
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\91\ See also written testimony of Joseph Dear before the Senate
Committee on Labor and Human Resources, Nov. 29, 1995, S. Hrg. 104-353,
p. 55 (``In fact, OSHA finds serious hazards at the same rate for
complaint-based inspections as it does for targeted inspections.'')
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The OSH Act requires an onsite inspection when an
individual files a formal (written and signed) complaint and
the Secretary has ``reasonable grounds'' to believe that a
violation or danger exists.\92\ The Department of Labor
interpreted the OSH Act to require an onsite inspection after
an individual files a formal complaint.\93\ In other words,
when it receive a formal complaint, the Department of Labor
thought that it must do an onsite inspection if the signed
complaint alleged that a hazard or violation existed. The
agency did not believe it could conduct an investigation,
through phone, fax or other means, to determine whether there
was reasonable cause to believe a violation or hazard existed
and then use the results of that investigation as the basis for
not conducting the onsite inspection.
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\92\ 29 U.S.C. 657(f).
\93\ See Department of Labor responses to Senator Kassebaum's OSHA
questions, S. Hrg. 104-353, p. 84-85.
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In contrast, with an informal complaint, OSHA had
discretion whether to conduct an onsite inspection. In the
recent past, OSHA has used the phone/fax system to determine
whether a hazard existed and whether it had been abated.
Senate bill 1423 amends OSHA's complaint process to give
the agency more flexibility to evaluate complaints. After an
individual filed a complaint, if the complaint alleged that a
hazard or violation existed (where is the ``reasonable
grounds'' that a hazard or violation existed), then OSHA would
be authorized ``as a method of investigating an alleged
violation or danger,'' to attempt to contact the employer by
telephone, facsimile, or other appropriate methods, to
determine whether the hazard actually existed and/or whether
the employer had taken or was willing to take corrective
action.\94\
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\94\ Senate bill 1423, Sec. 3(b).
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This provision ends the complainant's ``entitlement'' to an
onsite inspection simply because the individual filed a written
complaint. The era of big government is over. With scarce
resources, it would be foolish for Congress to mandate that
OSHA conduct an onsite inspection even after OSHA determined,
through investigation by phone, facsimile or other device, that
there was no hazard or violation at the work site.
The legislation also gives OSHA the discretion on whether
to conduct an onsite inspection when the Department of Labor
determines that the complaint was made for reasons other than
the health and safety of workers. For instance, in
circumstances where the Department of Labor determines that
harassment by a disgruntled former employee or competitor
motivated the complainant, and OSHA determines that workers are
not at risk, then S. 1423 grants the agency discretion to
determine whether to conduct an onsite inspection.
Senate bill 1423 in no way encourages OSHA to ignore
complaints alleging hazards or violations. The committee
believes strongly that OSHA should err on the side of caution
and fully expects OSHA to conduct an onsite inspection if there
is any doubt as to the existence of the hazard or violation.
However, in instances where OSHA determines through proof
offered by phone, facsimile or other means that no hazard or
violation exists, then the Department of Labor should have the
discretion not to conduct the onsite inspection and to direct
its resources toward abatement of real hazards.
In addition, the current OSHA complaint form (OSHA-7) asks
the complainant whether he has informed his employer of the
hazard or violation.\95\ Senate bill 1423 codifies this
inquiry. The committee notes that the complainant need not
answer ``yes'' to this question in order to trigger an
inspection. To the contrary, the response is simply one piece
of information that an OSHA inspector should have at his
disposal when the inspector receives the complaint.
---------------------------------------------------------------------------
\95\ S. Hrg. 104-353, p. 95.
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Senate bill 1423, states that when OSHA conducts an onsite
inspection in response to a complaint, the inspection shall be
conducted for the limited purpose of determining whether the
violation or danger exists. The purpose of this provision is to
preclude OSHA inspectors from engaging in a ``fishing
expedition'' when they enter the work site.
At the same time, the committee does not expect OSHA
inspectors to put blinders on during the inspection process.
Senate bill 1423 specifically permits the Department of Labor
to take ``appropriate actions with respect to health and safety
violations that are not within the scope of the inspection and
that are observed'' during the inspection.\96\
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\96\ S. 1423, section 3(b).
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For example, in the course of conducting a complaint
inspection, an inspector may examine the OSHA 200 log to
determine whether the employer recorded the accident, injury,
or violation that led to the complaint, and if an inspector
found a reasonable basis for expanding the complaint, then such
an expansion would not be precluded by section 8(f)(1)(E)I).
Similarly, if an inspector noted another hazard or violation in
plain view in the course of investigating a complaint, then
nothing in the above noted section would preclude the inspector
from citing the employer for those violations.
Senate bill 1423, as introduced, stated that the
complainant's name would not appear in the copy of the
complaint provided to the employer, ``except that the Secretary
[of Labor] may disclose this information during prehearing
discovery in a contested case.'' The sponsors did not intend
that the complainant's name be released on a routine basis.\97\
Instead, they intended to provide the Secretary with
flexibility to balance the complainant's need for anonymity
against the firm's need to defend itself against the charge and
to release the complainant's name only in rare instances when
the firm could meet its extraordinary burden of demonstrating
the need for the information.
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\97\ If the sponsors had intended this, they would have said that
the Secretary ``shall'' disclose the complainant's name to the
employer.
---------------------------------------------------------------------------
To avoid any misconstruction of this provision, however,
the committee adopted the Jeffords/Abraham amendment during the
executive session to eliminate the Department of Labor's
discretion in releasing the complainant's name. Senate bill
1423, as reported, therefore, does not permit the name of any
complainant to be released to the employer.
In addition, Senate bill 1423, as introduced, stated that
an inspection may only be requested by an employee or an
employee representative. During the committee hearings,
concerns were raised, particularly by Robert Georgine of the
Building and Construction Trades Department, AFL-CIO, that
bystanders, hospital emergency room personnel, spouses, and
other individuals would be precluded from filing OSHA
complaints on behalf of workers. Although the sponsors of S.
1423 had not intended this result,\98\ they recognized the
legitimate concerns that were raised at the hearings and, when
the committee met in executive session, supported the DeWine
amendment, which removed the restriction on who could file a
complaint.
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\98\ The OSH Act stated that ``employee or employee
representatives'' may file a complaint requesting a special inspection
under Section 8(f)(1). See also S. Hrg. 104-353, p. 90.
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To further reform OSHA's enforcement process, the committee
believed that OSHA should focus its resources on the most
hazardous work sites, while at the same time recognizing the
unique problems that smaller employers have had in complying
with burdensome paperwork requirements. The committee noted
OSHA Assistant Secretary Dear's testimony before the House
appropriations subcommittee: ``* * * the agency will soon
announce a revised penalty system, which will substantially
increase penalty discounts for small employers. * * * In the
near future, we intend to establish a small business advocacy
office within OSHA, to ensure that small employers have a voice
in our enforcement practices and regulatory policy making.''
\99\
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\99\ Statement of Joseph Dear before the House Appropriations
Subcommittee on Labor, Health and Human Services, and Education, May 8,
1996.
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Senate bill 1423 provides immediate relief to small
employers, while focusing OSHA inspection resources on the most
hazardous work sites. Consistent with Dr. David Whiston's
testimony before the committee, the legislation codifies the
long-standing (since 1978) rider in the Labor-Health and Human
Services (Labor-HHS) appropriations bill that exempts small
employers (employers with fewer than 11 employees) in
industries with better than average lost workday records from
random OSHA inspections. The provision does not exempt small
employers from complying with OSHA safety and health standards,
and small employers remain subject to post-accident and
complaint inspections.
In written testimony, the Department of Labor conceded that
``as a general matter, OSHA recognizes that small businesses
face unique challenges and are deserving of special treatment
from OSHA.'' \100\ Nevertheless, OSHA believed that
``compliance assistance and penalty reductions,'' not ``across
the board exemptions'' were more appropriate.\101\ The
Department of Labor's testimony failed to note that its fiscal
year 1996 Labor/HHS appropriations request included the small
employer random inspection exemption,\102\ and that the
department's current selection system for conducting targeted
inspections excludes employers with fewer than 10 employees
from random safety inspections.\103\
---------------------------------------------------------------------------
\100\ S. Hrg. 104-353, p. 53.
\101\ Id.
\102\ To the extent that the ``lost workday case rate'' in the
small employer exemption provision only reflects safety as opposed to
health records, the committee would endorse a technical amendment to
assure that ``illness'' as well as ``injury'' rates were considered.
\103\ According to the Congressional Research Service, ``OSHA's
practice is to exempt from programmed inspections all employers of
fewer than 10 employees in all industries.'' CRS Memorandum,
``Workplaces Subject to OSHA Programmed Inspections,'' February 23,
1996.
---------------------------------------------------------------------------
The committee strongly believed that OSHA must focus on
safety and health performance, rather than bureaucratic
activity, to measure the agency's success. OSHA's assistant
secretary testified before the House appropriations
subcommittee that his agency ``eliminated performance measures
based on inspections, fines and citations, and is developing a
new performance system tied to real improvements in safety and
health.'' \104\ In written testimony, OSHA's director stated
that these quotas ``have contributed to OSHA's reputation as a
nit-picky, overzealous enforcement agency.'' \105\
---------------------------------------------------------------------------
\104\ Statement of Joseph Dear before the House Appropriations
Subcommittee on Labor, Health and Human Services, and Education, May 8,
1996.
\105\ S. Hrg. 104-353, p.58.
---------------------------------------------------------------------------
To facilitate the assistant secretary's efforts, S. 1423
eliminates OSHA inspector quotas. The legislation prohibits the
Secretary of Labor from establishing any numerical quota with
respect to the number of inspections conducted, the number of
citations issued, or the amount of penalties collected.
Inspectors must not face institutional pressure to issue
citations or collect fines. Success for OSHA must depend upon
whether the Nation's work force is safer and healthier, and not
upon meeting or surpassing numerical goals for inspections,
citations, or penalties.
alternative methods defense
Senate bill 1423 contains other important methods to focus
OSHA on performance rather than bureaucratic activities. The
legislation requires OSHA to recognize alternative methods of
compliance that offer equivalent or greater protection to
workers.
As a defense to a citation under the OSH Act, section 5 of
S. 1423 requires the Department of Labor to vacate any citation
if the employer demonstrates that its employees were protected
by alternative methods ``equally or more protective of the
employee's safety and health than those required by OSHA.''
This provision forces OSHA to abandon its ``one-size-fits-all''
approach to occupational safety and health.
This defense goes to the heart of OSHA reform. OSHA must
recognize that it does not have all the answers. The regulators
at OSHA cannot possibly account for the variety of problems
that individual supervisors and workers encounter and the
solutions which they devise.
The Department of Labor must begin to recognize that all
solutions to workplace hazards do not originate in OSHA's
workplace standards division. The ultimate test of
``performance'' is whether workers are protected, not whether
firms follow a ``one-size-fits-all'' set of prescriptive rules
established by those who write the regulations in OSHA's
Washington, DC, headquarters. Senate bill 1423 requires OSHA to
recognize alternative methods of worker protection.\106\
---------------------------------------------------------------------------
\106\ Federal courts have recognized that a citation may be
inappropriate (although a de minimus notice was sustained) when there
was no significant difference between the protection provided by the
employer and that which would be afforded by technical compliance with
the standard. Phoenix Roofing v. Dole, 874 F.2d 1027 (5th Cir. 1989).
---------------------------------------------------------------------------
Regrettably, the Department of Labor opposed this
provision. In written testimony presented to the committee,
OSHA's assistant secretary stated that this provision ``could
seriously undermine OSHA standards. * * *'' \107\ Apparently,
OSHA failed to appreciate its mission, which is to protect
workers not its standards.
---------------------------------------------------------------------------
\107\ S. Hrg. 104-353, p. 58.
---------------------------------------------------------------------------
The agency also claimed the alternative methods provision
would increase ``costly and time consuming'' litigation as
employers contest citations. OSHA noted that under current
rules, ``the contest rate has remained relatively low; under 10
percent of all citations are contested.'' \108\
---------------------------------------------------------------------------
\108\ Id.
---------------------------------------------------------------------------
The Department of Labor's argument is specious. The
department appears to suggest that administrative convenience
overrides workplace safety and health. It suggests that success
for the agency is measured by how many citations it
successfully prosecutes, rather than whether workers are
actually protected from occupational hazards. If the contest
rate were zero, would workers be safer? The committee does not
believe that to be the case.
Employee accountability
The legislation, under section 5, also codifies the
employee accountability defense. Under the provision, no
citation shall issue if the employer can demonstrate that: (1)
its employees were trained properly and provided with the
appropriate equipment to prevent the violation; (2) work rules
to prevent the violation were established, communicated to
employees, and enforced through appropriate discipline; (3) the
failure of the employees to follow the work rules led to the
violation; and (4) the firm took reasonable steps to discover
the violation.
The defense is designed to assure that firms are held
accountable for implementing safety and health standards, while
at the same time assuring that firms are not unnecessarily
punished should their employees fail to follow appropriate
safety and health procedures. The Department of Labor indicated
that it had no objection to the provision.\109\
---------------------------------------------------------------------------
\109\ S. Hrg. 104-353, p. 58.
---------------------------------------------------------------------------
citation and penalty policy
Senate bill 1423 further reforms OSHA's enforcement policy
by revising the health and safety agency's citation and penalty
system. The legislation permits OSHA inspectors to issue
warnings in lieu of citations in appropriate situations and
reduces penalties for nonserious violations of health and
safety standards.
The committee believes that OSHA inspectors should focus on
serious hazards and agrees with the Department of Labor that
``unnecessary issuance of citations for minor technical
violations of paperwork and written program requirements
undermines the agency's efforts to promote the agency
mission.'' \110\ The current OSH Act does not give inspectors
the flexibility they need to use ``judgment and common sense to
protect workers.'' \111\ Instead, the OSH Act, by its terms,
mandates that inspectors issue citations for all offenses,
regardless of the severity of the offense.\112\
---------------------------------------------------------------------------
\110\ OSHA Instruction CPL 2.111, ``Citation Policy for Paperwork
and Written Program Requirement Violations.''
\111\ ``The New OSHA,'' p. 9, cited in S. Hrg. 104-353, p. 69.
\112\ Section 9 of the OSH Act, 29 U.S.C. 658, states that if an
inspector believes that an employer has violated an OSHA standard or
the general duty clause, then the inspector ``shall with reasonable
promptness issue a citation to the employer.''
---------------------------------------------------------------------------
Senate bill 1423 grants inspectors discretion whether to
issue a citation after observing a violation. Under the
legislation, inspectors ``may'' issue a citation. Such
discretion is intended to be used with care. The committee does
not intend inspectors to ignore hazards or violations that pose
a danger to workers. On the other hand, the committee wishes to
give inspectors the explicit authority to decide against
issuing a citation if circumstances warrant.
For instance, where workers have not been placed at risk or
where an inspector observes that a firm remains in substantial
compliance with OSHA standards yet has fallen just short of the
mark, then the inspector may decide not to issue a
citation.\113\ There is no mechanical formula for making this
decision. It requires inspectors to use judgment. Without this
authority, however, inspectors will be under institutional
pressure to cite firms for all violations observed, and the
Department of Labor will face uncertainty in designing programs
like Maine 200 and VPP.\114\
---------------------------------------------------------------------------
\113\ See testimony of Mark Hyner, president of Whyco Chromium,
Inc. regarding recommendations of White House Conference on Small
Business, S. Hrg. 104-316, p. 9-11.
\114\ For instance, the Department of Labor's written testimony on
OSHA reform noted that ``Federal case law demonstrates that OSHA
possesses a greater degree of prosecutorial discretion than was
recognized in the early years of the agency.'' (S. Hrg. 104-353, p.
58.) Similarly, OSHA's assistant secretary testified that ``we have
discovered a great deal more flexibility in the Act than many people
previously thought was there. The Main [sic `Maine'] program, the
Focused Construction program and others are essentially departures from
perceived policy that if any serious violation exists, OSHA is
compelled to issue a citation to note the violation.'' (S. Hrg. 104-
353, p. 29.)
---------------------------------------------------------------------------
The bill's language amending section 9(a)(1) of the OSH Act
is intended to complement section 9(a)(3), which grants
inspectors the explicit authority to provide technical or
compliance assistance to an employer in correcting a hazard
discovered during an inspection or an investigation. The
committee believes that inspectors should have this discretion
to improve workplace safety without relying solely on
citations.
Senate bill 1423 also provides two specific examples where
the inspector may issue a warning in lieu of a citation. First,
the legislation states that inspectors may issue a warning with
respect to a violation that has no significant relationship to
employee safety or health.\115\ Second, the legislation permits
inspectors to issue a warning in lieu of a citation when an
employer acts in good faith promptly to abate a violation, as
long as the violation is not a willful or repeated
violation.\116\
---------------------------------------------------------------------------
\115\ Although the Department of Labor did not support this
provision, OSHA Assistant Secretary Joseph Dear testified as follows in
response to Senator Gregg's question regarding a ``nonserious violation
structure'' and ``warnings in lieu of a citation structure:''
I believe we can do that without amending the statute. * *
* Clearly, in the case of violations that have no direct
relationship with any threat to workers' health or safety,
the opportunity exists for OSHA not to issue a citation or
to issue a citation and not have a penalty.'' (S. Hrg. 104-
---------------------------------------------------------------------------
116, p. 93-94.)
\116\ S. 1423, section 7 ``Warnings in Lieu of Citations,''
amending section 9(a)(2) of the OSH Act.
---------------------------------------------------------------------------
These two instances call upon OSHA inspectors to use sound
judgment. The committee specifically grants inspectors the
discretion to issue a warning where workers are not place at
risk by the violation, or where the employer demonstrates good
faith to address the hazard promptly. If the inspectors
believes that a warning would further the purposes of the act
then the inspector need not issue the citation.
These changes are consistent with the Department of Labor's
published policy statement. In its reinvention document, OSHA
claimed that ``citation for violations of paperwork
requirements are declining'' and ``OSHA inspectors no longer
penalize employers who have not put up the required OSHA
poster.* * *'' \117\ Similarly, OSHA's ``Citation Policy for
Paperwork,'' CPL 2.111, indicated that in certain circumstances
where paperwork deficiencies pose no risk to workers, OSHA
inspectors should not issue citations.
---------------------------------------------------------------------------
\117\ ``The New OSHA'', p. 8, cited in S. Hrg. 104-353, p. 68.
---------------------------------------------------------------------------
The Department of Labor did not support providing OSHA with
discretion on whether to issue citations for violations. One
the one hand, the department recognized that a strict reading
of the OSH Act would require an inspector to issue a citation
after observing a violation. On the other hand, the department
recognized that its own policies and reinvention initiatives
depend upon a more liberal reading of the OSH Act, because the
Main 200 VPP expansion and ``no citation for failure to post
the OSHA poster'' policies all depend upon OSHA exercising
discretion in not citing firms for every violation that
inspectors encounter.
The department must therefore conclude that it has
discretion on whether to issue citations. But it opposes
codifying the very discretion that it exercises because to do
so would ``undermine both the preventive purpose as well as the
deterrent effect of OSHA's enforcement program.'' \118\ The
department apparently believes that such changes to the OSH Act
would ``signal employers that they need not take preventive
steps to protect their workers'' and could wait until an OSHA
inspector arrives before addressing workplace hazards.\119\
---------------------------------------------------------------------------
\118\ S.Hrg. 104-353, p, 58.
\119\ Id.
---------------------------------------------------------------------------
This argument is meritless for at least two reasons. First,
the employer will not know whether the inspector will issue a
warning or a citation. Granting the inspector discretion to
issue a warning in no way provides immunity to bad actors.
Since the employer cannot rely upon a warning, the firm has no
choice but to attempt to comply with OSHA standards.
Accordingly, OSHA's ``preventive'' and ``deterrent'' effects
are not undermined.
Second, if OSHA believed that providing such discretion to
inspectors really undermined the agency's effectiveness, then
it should not have adopted and publicized its reinvention
initiatives that rely upon that discretion. By doing so, OSHA
appears to have undermined its own argument.\120\
---------------------------------------------------------------------------
\120\ By the department opposing these provisions granting OSHA
inspectors discretion, the committee is left to wonder whether the
department believes its inspectors should issue citations for every
citation that inspectors encounter. Further, the committee is left to
wonder whether the Department believes citations (rather than warnings)
should issue for all violations that have no significant relationship
to safety or health and in situations where the employer in good faith
promptly abates first time, nonwillful violations.
---------------------------------------------------------------------------
Senate bill 1423 further reforms OSHA's enforcement process
by amending the penalty schedule for violations of OSHA
standards. The legislation reduces penalties for nonserious
violations and posting or paperwork infractions. By these
changes the committee reaffirms the importance of OSHA
standards that directly affect worker safety and health and
underscores the need to focus on these standards rather than
the paperwork, posting and other compliance burdens that do not
directly improve worker protection.
Under S. 1423, section 8, the maximum penalty for
``serious'' violations remains unchanged at $7,000 per
violation.\121\ On the other hand, the bill reduces the maximum
penalty for other-than-serious, also termed ``nonserious,''
violations from a maximum of $7,000 per violation to a maximum
of $100 per violation. By lowering this amount, the committee
intends to refocus OSHA inspectors on serious hazards and away
from nonserious, technical violations of law.
---------------------------------------------------------------------------
\121\ Similarly, the legislation does not lower the maximum fine
for ``willful'' or ``repeat'' violations, and it does not in any way
affect the department's ability to use the ``egregious'' penalty policy
to pursue particularly flagrant OSHA violators.
---------------------------------------------------------------------------
Posting and Paperwork
In addition, the legislation eliminates penalties for
posting or paperwork requirements. This provision is designed
to encourage OSHA inspectors to focus on violations that place
workers at risk, rather than nonserious paperwork violations.
The committee noted that in 1995, OSHA inspectors issued the
most citations (over 3,000 citations) to employers for failure
to properly maintain a written program under the hazard
communication standard. In fact, record keeping, the written
program and information/training under the hazard communication
standard (generally industry and construction), and container
labeling were among the most frequently cited standards by OSHA
inspectors.\122\
---------------------------------------------------------------------------
\122\ U.S. Department of Labor (Oct. 30. 1995).
---------------------------------------------------------------------------
The committee intends for the term ``paperwork and posting
requirement'' to be interpreted consistent with the definitions
the Department of Labor adopted in its ``posting and
paperwork'' regulation, CPL 2.111. That regulation applied to
``record keeping, posting of the OSHA notice, written program
requirements in standards such as lockout-tagout, permit-
required confined spaces, blood borne pathogens, hazard
communication, personal protective equipment, and other
essentially similar requirements found in OSHA standards.''
\123\
---------------------------------------------------------------------------
\123\ OSHA Instruction CPL 2.111, p.2.
---------------------------------------------------------------------------
To its credit, the Department of Labor conceded that ``in
the past * * * OSHA cited employers not for genuine safety
hazards, but also for minor or paperwork violations.'' \124\
However, in an attempt to inject some ``common sense'' into the
enforcement system, ``citations for violations of paperwork
requirements are declining. * * * OSHA inspectors no longer
penalize employers who have not put up the required OSHA poster
if the employer agrees to post it right away. * * * [and] OSHA
has issued new inspection guidelines that will better assure
that employers are not fined for failure to have a material
safety data sheet for a common consumer product. * * *'' \125\
OSHA recognized that citations for ``minor technical violations
of paperwork and written program requirements undermine the
agency's efforts to promote the agency's mission.'' \126\
---------------------------------------------------------------------------
\124\ ``The New OSHA'', p. 8, cited in S. Hrg. 104-353, p. 68.
\125\Id., at p. 68.
\126\OSHA Instruction CPL 2.111, p.2.
---------------------------------------------------------------------------
Consistent with the Department of Labor's reinvention
efforts, Senate bill 1423 assures that firms will not be fined
for nonwillful, nonserious posting and paperwork violations.
The committee reaffirms the importance of identifying and
eliminating serious hazards and intends OSHA inspectors to
focus on those violations, rather than nit-picky, paperwork
violations. Although OSHA has made progress in reducing
citations for posting the OSHA notice and failure to properly
maintain material safety date sheets, the committee believes
legislation is necessary to institutionalize the advances that
have been made.
Criteria to Assess Penalties
Senate bill 1423 expands the criteria that the OSHA Review
Commission utilizes to assess civil penalties. The current OSH
Act authorizes the Commission to consider the following
factors: the size of the firm being charged, the gravity of the
violation, the good faith of the employer, and the history of
previous violations.127
---------------------------------------------------------------------------
\127\ OSH Act, section 17(j), 29 U.S.C. 666 (j).
---------------------------------------------------------------------------
The OSHA reform legislation includes the following
criteria; the size of the employer, the number of employees
exposed to the violation, the likely severity of any injuries
directly resulting from the violation, the probability that the
violation could result in injury or illness, the employer's
good faith in correcting the violation after it was discovered,
the extent to which employee misconduct was responsible for the
violation, the effect of the penalty on the employer's ability
to stay in business, the history of previous violations, and
whether the violation is the sole result of the failure to
comply with posting the OSHA notice or maintaining records or
paperwork.128
---------------------------------------------------------------------------
\128\ S. 1423, section 8.
---------------------------------------------------------------------------
Both current law and the reform legislation authorize the
OSHA Review Commission to consider the size of the firm, and
current law's ``gravity of the violation'' is roughly
equivalent to the ``number of employees exposed,'' ``the likely
severity'' of injury, and the ``probability that the violation
could result in injury or illness.'' In addition, both current
law and the reform legislation refer to the good faith of the
employer and the history of previous violations.
Accordingly, S. 1423 simply expands the criteria by
authorizing the Review Commission to consider the extent to
which employee misconduct was responsible for the violation,
the effect of the penalty on the employer's ability to stay in
business, and whether the violation is the sole result of
posting or paperwork deficiencies. The committee intends the
Review Commission to consider these criteria as mitigating
factors.
Conclusion
In sum, the committee places a high priority on OSHA
reform. As Mark Hyner, president of Whyco Chromium Co. of
Thomaston, CT, testified: ``OSHA reform is not merely a wish or
a hope; it is an absolute necessity which is long, long
overdue. * * * We need change, and we need it now.'' 129
---------------------------------------------------------------------------
129 S. Hrg. 104-316, p. 9-10.
---------------------------------------------------------------------------
The committee believes that the OSHA Reform and Reinvention
Act, S. 1423, will improve worker safety and health, increase
employee involvement, provide greater flexibility and
efficiency to OSHA, and reduce unnecessary paperwork burdens on
workers and supervisors. Private sector resources will be more
fully utilized, and OSHA, leveraging scarce resources, will
better focus its resources on the most dangerous hazards at the
most perilous work sites.
OSHA can no longer afford to treat all employers alike. In
our ``post-big government era,'' the Federal Government must
distinguish between safe work sites and unsafe work sites, and
concentrate its resources where they are most needed. The
agency also must distinguish between serious hazards and mere
technical violations of the law.
Senate bill 1423 provides the Department of Labor with the
tools it needs to address our Nation's health and safety needs.
The committee encourages the Senate to enact this important
legislation.
V. Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 27, 1996.
Hon. Nancy Landon Kassebaum,
Chairman, Committee on Labor and Human Resources, U.S. Senate,
Washington, DC.
Dear Madam Chairman: The Congressional Budget Office has
prepared a cost estimate for S. 1423, the Occupational Safety
and Health Reform and Reinvention Act, as ordered reported by
the Committee on Labor and Human Resources on March 5, 1996.
Because enactment of S. 1423 would affect receipts, pay-as-you-
go procedures would apply to the bill.
If you wish further details on this estimate, we will be
pleased to provide them.
Sincerely,
June E. O'Neill, Director.
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
1. Bill number: S. 1423.
2. Bill title: Occupational Safety and Health Reform and
Reinvention Act.
3. Bill status: As ordered reported by the Senate Committee
on Labor and Human Resources on March 5, 1996.
4. Bill purpose: To amend the Occupational Safety and
Health Act of 1970 to make modifications to certain provisions,
and for other purposes.
5. Estimated cost to the Federal Government: S. 1423 would
affect the Occupational Safety and Health Administration's
(OSHA's) need for budgetary resources in several ways, some of
which would increase costs and some of which would reduce them.
The provisions of the bill that would narrow the scope of
OSHA's regulatory domain--either directly by exempting certain
employers from inspection or indirectly by permitting employers
to apply for exemptions--would decrease OSHA's costs. The
provisions of the bill that would require review of application
for exemptions and would extend OSHA's jurisdiction to cover
the federal government and state and local governments would
increase its costs. In addition, federal agencies may incur
additional costs to comply with OSHA standards. CBO does not
have sufficient information to estimate the net effect of these
provisions on the federal budget.
With one exception, the costs or savings associated with S.
1423 would involve discretionary spending. The bill would,
however, result in the loss of about $1 million a year in
federal receipts from civil penalties.
6. Basis of estimate: Section 3 of S. 1423 would prohibit
the Secretary of Labor from conducting routine inspections of
or enforcing any OSHA regulation on certain farming operations
with 10 or fewer employees and on employers with above-average
safety records and 10 or fewer employees. Although this
exemption has been included in legislation providing for OSHA's
appropriations in recent years, S. 1423 would represent a
change in permanent law. Thus, by permanently reducing the
scope of OSHA's jurisdiction, this provision would reduce
potential federal costs. Reliable data on the number of
employers who would be eligible for this exemption are not
available, but the savings to OSHA--relative to future costs
under current law--could be in the range of $30 million to $45
million annually.
Section 4 of the bill would exempt employers who meet
certain qualifications from all safety and health inspections,
other than those arising from the death or severe injury to an
employee. In a given year, employers could meet these
qualifications in two ways. First, they could qualify if they
had been reviewed under an approved workplace safety and health
consultation program provided by a state or local government or
by any other business entity or qualified person certified by
the Secretary during the preceding year. Second, they could
qualify if they had not had a work-related employee death
during the preceding year, had an above-average safety and
health record, and maintained an employee safety and health
program meeting specified standards. The Secretary could
conduct random audits to verify that employers were in
compliance.
The effects of this provision on the federal budget would
depend critically on how many employers chose to apply for
certification and the percentage of certifications that were
audited. Even a cursory review of applications would require
one full-time equivalent employee for every 1,000 applications.
CBO cannot estimate how many employers would apply for
certification, but if 100,000 applications were received
annually, federal costs would be over $5 million. Costs would
be higher if applications were reviewed more intensively.
Auditing 1 percent of these applications--a percentage similar
to the audit rate of the Internal Revenue Service but higher
than the current percentage of establishments subject to OSHA
inspection--would add further costs of about $5 million.
Further, an increase in the number of employers choosing to use
consultation services provided through state agencies (but
largely paid for with federal funds) could require an increase
in spending of $10 million. These certification, auditing, and
consultation costs would be offset somewhat because OSHA would
no longer need to conduct inspections of certified employers.
Section 5 of S. 1423 would provide additional grounds on
which employers could contest citations for noncompliance
issued by OSHA. Citations would be vacated if employers could
demonstrate that employees were protected by methods at least
as stringent as the OSHA regulation being violated. This
provision could increase OSHA's litigation costs by increasing
the incentive for employers to contest citations.
Sections 7 and 8 of the bill would reduce civil monetary
penalties for certain violations in some circumstances. For
violations not considered serious, penalties of up to $7,000
under current law would be reduced to not more than $100. Civil
penalties for violations of posting and paperwork requirements
would be eliminated for violations that were not serious, were
not repeated, and which occurred before time to correct them
had expired. In addition, penalties would be reduced by 25
percent in cases where an employer maintained a qualified
safety and health program or had an exemplary safety record and
by 50 percent for employers meeting both criteria. Penalties
would be reduced by 75 percent if, within one year of the date
of the citation, the employer was reviewed by an approved
consultant and complied with any resulting recommendations.
This latter reduction would not apply if the violation had been
cited previously, created imminent danger, or caused death or a
serious accident.
Several of the penalty provisions in the bill would
formalize what are for the most part current OSHA policies.
However, in some instances these provisions would reduce
penalties below the current level of collections. CBO estimates
that enacting Section 8 of the bill would reduce governmental
receipts by about $1 million annually.
Section 11 would include the federal government and state
and local governments as employers subject to the jurisdiction
of OSHA. Currently, the federal government is required to
maintain an occupational safety and health program and to
comply with OSHA standards. However, OSHA may only issue a
``failure to abate'' to agencies not in compliance, and has no
authority to levy fines. This amendment would enable inspectors
to levy fines for safety and health violations. Federal costs
would rise because agencies would be under greater pressure to
comply; however, CBO cannot estimate how large this increase
would be.
Twenty-three states elect to administer OSHA standards.
These states are already required to include public employees
in their programs. Based on their cost of administering OSHA
standards, CBO estimates that making the remaining states
subject to these standards would cost OSHA about $20 million
annually.
7. Pay-as-you-go considerations: The Balanced Budget and
Emergency Deficit Control Act of 1985 sets up pay-as-you-go
procedures for legislation affecting direct spending or
receipts through 1998. The bill would have the following pay-
as-you-go impact:
------------------------------------------------------------------------
1996 1997 1998
------------------------------------------------------------------------
Changes in outlays..................... (\1\) (\1\) (\1\)
Changes in revenues.................... 0 -1 -1
------------------------------------------------------------------------
\1\ Not applicable.
8. Estimated cost to State, local, and tribal governments:
S. 1423 contains an intergovernmental mandate as defined in
Public Law 104-4. Specifically, the bill would require state
and local governments to apply federal workplace health and
safety laws to public workplaces. Currently, the Occupational
Safety and Health (OSH) Act excludes states and their political
subdivisions from the definition of employer and covers public
employees only when a state voluntarily assumes the
responsibility for administrating the federal program.
Currently 23 states and two territories are voluntarily
administering the program to some extent. If S. 1423 is
enacted, OSH Act provisions would apply in 31 jurisdictions (27
states, the District of Columbia, and three territories) that
currently do not apply such laws to public workplaces. CBO
estimates that approximately 54,500 governmental units
(including states, counties, cities, towns, and other special
purpose governments such as school districts) and eight million
public employees would be affected.
At this time, CBO cannot precisely estimate the net costs
of applying federal workplace health and safety laws to state
and local government workplaces although we believe that they
are likely to exceed the $50 million annual threshold
established in Public Law 104-4. These costs would be incurred
in the first few years after enactment as governments bring
their workplaces into compliance. State and local governments
would face additional costs for such activities as modifying
facilities and machinery, training employees, recordkeeping,
purchasing safety equipment, and posting safety procedures. CBO
is in the process of preparing a more complete estimate of the
impact of S. 1423 on state and local governments.
9. Estimated impact on the private sector: This bill does
not include any private-sector mandates as defined in Public
Law 104-4.
10. Previous estimate: None.
11. Estimate prepared by: Federal Cost Estimate: Cyndi
Dudzinski; State and Local Cost Estimate: Marc Nicole; Federal
Revenue Estimate: Stephanie Weiner.
12. Estimate approved by: Robert A. Sunshine (for Paul N.
Van de Water, Assistant Director for Budget Analysis).
VI. Regulatory Impact Statement
The committee has determined that there will be no increase
in the regulatory burden imposed by this bill.
VII. Section-by-Section Analysis
Sec. 1. Short Title.--The bill may be referred to as the
``Occupational Safety and Health Reform and Reinvention Act.''
Sec. 2. Employee Participation.--The legislation permits
workers and supervisors to address health and safety matters
through employee involvement programs by amending Federal labor
law. The section also contains an important limitation to
clarify that this labor law provision does not permit an
employer to bypass its union (if applicable) and in no way
alters an employer's duty to bargain with its union (if
applicable) over health and safety issues.
Sec. 3(a). Inspections.--The legislation codifies the
annual small employer (10 or fewer employees) appropriations
rider by exempting from safety inspections small farms, and
small employers with better than average lost workday rates.
The bill expands this exemption to health inspections as well.
Sec. 3(b). Inspection Based on Employee Complaints.--
Employees or employee representatives must contact OSHA in
writing when filing a complaint (same as current OSH Act).
The bill codifies the phone/fax system OSHA uses to
investigate informal (nonwritten) complaints and expands it for
use with formal (written, signed) complaints. After receiving
the complaint, the Secretary may use the telephone, facsimile,
or other appropriate methods to determine whether an onsite
inspection is necessary. A copy of the complaint must be
provided to the employer no later than at the time of
inspection, but the name of those who filed the complaint may
be withheld by the Secretary upon request.
Sec. 4. Work Site-Based Initiatives.--The Secretary shall
establish a program to encourage voluntary efforts to improve
workplace safety and health. The program provides a 1-year
exemption from regular programmed inspections and reduced OSHA
penalties for work sites that have been reviewed by a
certified, third-party health and safety expert, or whose
places of employment have established a comprehensive health
and safety program (that includes employer commitment, employee
involvement, hazard identification and abatement, and worker
training) and have an exemplary safety and health record.
Records of employer self-audits and self-inspections to
identify hazards (not conducted pursuant to the inspection
exemption described above) shall be privileged from disclosure
to the Secretary, as long as the employer has taken measures to
address any serious hazards identified during the self-audit
and the Secretary's investigation does not involve a serious
accident.
Sec. 5. Employer Defenses.--The legislation codifies the
employee accountability defense, which provides a defense to an
OSHA citation when an employee disregards an established health
and safety work rule that is the subject of the citation, where
the employer enforces the work rule and provides appropriate
training to the employee. In addition, the section provides a
defense to a citation if an employer can demonstrate that it
has provided an alternative means to protect workers that is
equally or more protective than the safeguards required by the
act.
Sec. 6. Inspection Quotas.--OSHA may not evaluate
inspectors based on the number of inspections that they
conduct, violations that they cite, or penalties that they
collect.
Sec. 7. Warnings in Lieu of Citations.--The Secretary has
discretion to issue a warning in lieu of citation if a
violation has no significant relationship to employee safety or
health, or if the employer acts in good faith promptly to abate
a hazard. The Secretary also may provide technical and
compliance assistance to address a violation discovered during
the course of an inspection.
Sec. 8. Reduced Penalties for Nonserious Violations and
Mitigating Circumstances.--The legislation reduces penalties
from up to $7,000 to no more than $100 for other-than-serious
(nonserious) violations. This section also provides for reduced
penalties if the employer has been inspected by a certified
third-party safety and health consultant or has an effective
health and safety program.
Sec. 9. Consultation Services.--The legislation codifies
OSHA's consultation program, where OSHA provides funding to the
States to provide compliance assistance to small businesses.
The consultants provide advice in identifying and addressing
workplace hazards without citing the employer for violations,
as long as the firm promises to abate serious hazards
identified during the consultation.
Sec. 10. Voluntary Protection Program.--The legislation
codifies the Voluntary Protection Program (VPP), where OSHA
recognizes those work sites that have demonstrated a strong
commitment to workplace safety and health. The section also
codifies OSHA's current practice of granting a programmed
inspection exemption to VPP work sites.
Sec. 11. Coverage for Public Sector.--The legislation
extends OSHA coverage to public sector workers, including
workers at the Federal, State and local levels.
VIII. ADDITIONAL VIEWS OF SENATOR ABRAHAM
During the Labor Committee's consideration of S. 1423, I
was unable to comment on several amendments that were offered,
so I wanted to take this opportunity to make my views clear.
First, while I supported the underlying legislation, I
cosponsored two amendments that I believe improve the bill. The
first, offered by Senator Jeffords, clarifies that the name of
an employee who complains to OSHA may not be released to the
employer at anytime during OSHA's response. As I understand the
underlying bill, its intent was to permit the complaining
employees' written statement to be released for good cause
after they had testified in a contested case. Testimony before
the committee, however, raised questions whether potential
release of the name would unnecessarily deter employees from
filing complaints.
The other amendment, sponsored by Senator DeWine, strikes
the sentence ``The Secretary may only make an inspection under
this section if such an inspection is requested by an employee
or representative of employees.'' The amendment clarifies that
nonemployees--such as doctors and family members--may file
written complaints. While I understand the intent of the bill
was to prevent disgruntled former employees from filing OSHA
complaints, witnesses before the committee suggested that
independent observers sometimes are important sources of
information regarding work place hazards. This amendment
ensures that they have access to OSHA.
A third amendment I supported was the Simon amendment to
extend OSHA coverage to local, State and Federal employees.
While some groups view this amendment as an unwarranted
expansion for OSHA's current jurisdiction, I supported it for
the following reasons.
First, Congress recently passed legislation which applies
Federal labor and safety laws--including OSHA--to the House and
Senate. The argument for this legislation is that Congress
should not exempt itself from the laws and mandates it applies
to other employers. I believe this same argument applies to the
coverage of public employees under OSHA.
Second, every argument raised against this amendment--that
it will cost too much, that it means retraining employees, and
that it will affect low-risk workplaces--applies to private
employers and their workplaces as well. In other words, those
who oppose this amendment wish to maintain a two-tier system
where private employers are subject to OSHA scrutiny and costs
while public employers, including the Federal Government, are
not. I believe this distinction is unjustified.
While the preceding three amendments were accepted, the
committee also rejected numerous amendments offered by
Democratic members. I want to comment on two of those
amendments.
One amendment was the criminal penalty amendment offered by
Senator Kennedy. I support imposing tough penalties upon those
employers who recklessly and knowingly endanger the lives of
their employees. At the same time, I believe Senator Kennedy
failed to demonstrate why it is necessary for Federal penalties
of this magnitude to be imposed when state laws already address
these crimes. All fifty States already have laws to cover
negligent homicide. Before this amendment is adopted, the case
needs to be made that there is a gap in the legal fabric
between State and Federal laws addressing negligent homicide.
Senator Kennedy failed to address this issue.
In addition, the size of the penalties Senator Kennedy
wished to impose appear to be out of proportion to existing
State penalties for similar crimes. The Kennedy amendment would
punish employers up to 20 years for willfully violating a
standard that leads to the death of an employee. At the same
time, someone convicted of willfully killing someone could
anticipate a sentence of just a fraction that long. In other
words, the Kennedy amendment would elevate the punishment for
willfully violating a standard above the typical punishment for
willfully killing a person. While there may be some level of
increased Federal criminal penalty that is appropriate for
violating OSHA standards, I found those prescribed by the
Kennedy amendment to be excessive compared to existing State
penalties.
Another amendment I opposed was the Simon amendment to
allow the debarment of Federal contractors with a pattern and
practice of serious OSHA violations. As with the Kennedy
amendment, I have several concerns with the approach Senator
Simon takes.
First, the amendment fails to outline under what procedures
debarment proceedings would take place. It is my understanding
that similar debarment provisions under other laws provide
specific and well-defined processes by which a contractor is
debarred, yet the Simon amendment fails to either set up its
own procedures, or refer to those already established under the
Administrative Procedures Act. Because of this oversight, I am
concerned that this provision could be abused for political
purposes.
Second, in my opinion, the amendment fails to adequately
define what a ``pattern and practice'' is. Although Senator
Simon modified his amendment to change ``serious'' to read
``substantial probability of death or serious physical harm to
employees,'' this modification does not ensure that this
provision would only be used against so-called ``bad actor''
employers who truly disregard the health and safety of their
employees.
The final amendment upon which I would like to comment is
the Wellstone amendment. His amendment would have extended the
current whistleblower complaint period from 30 days to 180 days
and allowed awards of back-pay, compensatory damages, and
attorney's fees. During debate, Chairman Kassebaum indicated
that, while she sympathized with Senator Wellstone's intent,
she preferred to offer a more moderate approach when this
legislation is debated on the floor. As Chairman Kassebaum made
clear, protecting whistleblowers from retaliation is something
that should be addressed by this legislation and I intend to
support her efforts to bring this matter up when S. 1423 is
considered by the full Senate.
In conclusion, I supported S. 1423 because I believe this
is an issue which the full Senate should have a chance to
debate. As someone who cares very much about worker safety and
health, I am encouraged that many of the reforms included in
this legislation have either been endorsed or implemented
administratively by the Clinton administration. While there are
several remaining areas of the bill which I believe can be
improved upon, I am confident that, under Chairman Kassebaum's
leadership, these concerns can be addressed on the floor in a
bipartisan manner.
IX. MINORITY VIEWS OF SENATORS KENNEDY, DODD, HARKIN, WELLSTONE, PELL,
SIMON, AND MIKULSKI
The committee's majority has voted for a collection of
amendments to the Occupational Safety and Health Act with one
unifying theme: to weaken enforcement of workplace safety and
health standards. The amendments would (1) allow all but a few
employers to exempt themselves from surprise inspection, (2)
make it more dangerous for employees to complain about hazards,
(3) take away the right of workers to an on site inspection
when OSHA finds reasonable grounds to believe there are serious
hazards, (4) give the agency the authority not to cite
employers for serious violations, even if they had caused the
death of an employee, (5) automatically reduce penalties by a
minimum of 50% for many employers with serious safety
violations, even if they have long histories of safety
violations, their violations are willful and repeat, and the
violations have led to the death or disability of workers
through occupational disease or illness.
For these and other reasons detailed below, we oppose
enactment of S. 1423 and applaud the Administration's pledge to
veto this bill if it reaches the President's desk.
overview
Chairman Kassebaum and the committee's majority have
repeatedly declared their support for the OSHA reinvention
initiatives the Clinton administration has undertaken. They
claim that S. 1423 ``simply codifies'' those initiatives. In
reality, S. 1423's ``reforms'' are vastly different from OSHA's
reinvention initiatives, and conflict with them in fundamental
ways. The Administration's strong opposition to S. 1423 is
proof that the bill's sponsors are hiding behind the wrong
skirts.
The first and greatest conflict between the Clinton program
and S. 1423 involves their differing approaches to enforcement.
In summary, OSHA reinvention is premised on strong enforcement
of the law, while S. 1423 undermines or negates enforcement of
safety and health standards in numerous ways.
OSHA is changing its fundamental operating model from one
of command and control to one that provides employers with a
real choice between a cooperative partnership and a traditional
enforcement relationship. For example, OSHA's ``Maine 200''
program, one of the 1995 winners of the Ford Foundation
Innovations in American Government Award, offers employers a
choice of working in partnership with OSHA or facing stepped-up
enforcement. All of these reinvention activities are premised
on a strong enforcement program. In fact, as many of the
participants in these reinvention initiatives have recognized,
without a strong enforcement program many of these companies
would not participate.
In contrast, S. 1423 consists of a series of inspection
exemptions, means of avoiding citations, defenses to citations,
penalty reductions and other enforcement relief. Taken
together, these provisions would seriously undermine OSHA's
enforcement program. In addition, the bill would give OSHA the
authority to dismantle its enforcement program altogether,
frustrating the preventive and deterrent purposes of the
original OSH Act.
S. 1423 represents one piece of a larger deregulatory trend
in the 104th Congress. Notably, the current deregulatory
climate has already affected employer efforts to protect
workers. In a recent survey of over 1,000 safety and health
professionals by Industrial Safety and Hygiene News, about one-
third expected greater budget and staff cuts and thought it
would be harder to sell management on major safety investments.
As one management representative said, ``if regulatory
enforcement or requirements are unlikely, it's human nature to
make these areas less of a priority.'' \1\
---------------------------------------------------------------------------
\1\ Industrial Safety and Hygiene News, 12th Annual White Paper
Report on U.S. Industry Safety and Health Practices, November 1995.
---------------------------------------------------------------------------
Second, OSHA has developed its reinvention initiatives
through a careful, ongoing process of pilot programs,
stakeholder input, and simple trial and error. For example, the
principle of the Maine 200 Program--leveraging OSHA's limited
resources by offering employers a choice between a cooperative
partnership and traditional enforcement--is a young one. But
two years after beginning the program OSHA is still defining
the appropriate parameters for similar programs.
Many of S. 1423's provisions, on the other hand, would
impose new statutory changes without adequate consideration,
testing or dialogue with stakeholders. Once enacted, these
reforms would be very difficult to refine or otherwise modify
even if serious problems arose during their implementation.
OSHA's experience during the early 1980's confirms the
dangers of precipitous change. The agency exempted employers
from targeted inspections based solely on the number of
injuries and illnesses recorded on their logs. Some in Congress
even wanted to enact this records-check exemption into law.
OSHA soon discovered, however, that a sizable number of
employers were under-reporting injuries and illnesses at their
work establishments and that many dangerous workplaces were not
inspected as a result. In some cases OSHA found that workers
had been seriously injured or killed at workplaces that the
agency visited but failed to inspect. The agency subsequently
eliminated the records-check exemption. If this policy had been
enacted into law, it would have been much more difficult to
change.
Third, OSHA's reinvention initiatives and existing programs
permit limited inspection exemptions and penalty reductions for
employers who demonstrate continued commitment to worker safety
and health. In contrast, S. 1423 requires substantially less
from employers to qualify for enforcement relief, and rewards
such employers with substantially greater relief.
Thus, for example, OSHA's Voluntary Protection Program
exempts employers who undergo a wall-to-wall inspection and
follow-up inspections, and demonstrate superior safety and
health performance. Only a few hundred worksites have qualified
for a VPP exemption. Yet OSHA estimates that roughly 94 percent
of U.S. firms would be eligible for an inspection exemption
under S. 1423's various provisions.
Fourth, as the Clinton administration recognized in its
testimony, any effort to improve Federal oversight of workplace
safety and health must improve worker protection. After all,
the very purpose of the original act was ``to assure, so far as
possible, every working man and woman in the Nation safe and
healthful working conditions.'' Thus, for example, OSHA has
improved efficiency significantly through the use of telephone
and facsimile to investigate informal complaints, while
simultaneously protecting the fundamental worker right to a
government inspection where serious hazards are present.
Unfortunately, however, rather than improving worker
protection, the bill's focus is on granting employers
inspection exemptions, means of avoiding citations, defense
against citations, penalty reductions, and other relief from
enforcement. With the exception of Senator Simon's amendment to
extend OSH Act coverage to public sector workers, S. 1423 as
reported does not contain a single provision that strengthens
worker rights or protections. Instead, it would repeal the
worker right to an inspection, one of the original OSH Act's
core principles. In this regard, S. 1423 is seriously
unbalanced and represents an extremely one-sided approach.
Fifth, in the regulatory arena OSHA has sought to
strengthen its standard-setting process to ensure the
development of common sense protective standards. This strategy
has included early and continuous stakeholder involvement, the
use of negotiated rulemaking and non-regulatory approaches
where feasible, an emphasis on performance-based standards, and
an effort to rewrite existing rules in plain English.
By comparison, S. 1423 would weaken every one of OSHA's
protective standards by relieving employers from OSHA
enforcement activities, and by allowing employers to challenge
those standards in every enforcement proceeding. If S. 1423
were enacted into law, employers would be free to ignore OSHA
standards.
Section-By-Section Analysis
Section 2. Employee participation
Section 8(a)(2) of the National Labor Relations Act
protects workers against employer-dominated company or sham
unions. This does not mean, as the majority baldly claims, that
the NLRA ``prohibits worker-management safety committees in
nonunion settings.'' But it does mean that employers cannot set
up phony employee organizations, dominate and control them, and
use them to prevent employees from joining together to let the
employer know their real concerns about workplace safety and
health.
Section 2 of the S. 1423 would exempt from the statutory
protection of the NLRA any employee participation mechanism--no
matter how one-sided, coercive, unfair, and employer-
dominated--which deals at least in part with worker safety and
health conditions and which does not involve the negotiation of
a collective bargaining agreement. This provision would
overthrow 61 years of labor law protecting the right of
employees to be represented only by representatives of their
own choosing and would permit the spread of sham unions dealing
with issues far outside the scope of a safety and health
committee.
Employee participation is vital to a safe work environment,
and current interpretations of the NLRA allow the creation of
employee involvement programs--in both union and nonunion
settings--with appropriate protections to ensure a genuine
voice for employees. However, this provision of S. 1423 would
jeopardize the workers' right to choose a representative
independent of their employer's influence.
Indeed, the bill would make it legal for employers to
dominate, interfere with, or otherwise control any employee
organization, provided that no collective bargaining agreement
is negotiated. Employers could take advantage of this broad
exception to NLRA section 8(a)(2) to appoint employee
``representatives'' who in fact represent only the views of the
employer. Employers could legally exert undue influence on
workers to deprive them of their statutory right to an
independent representative. If a safety committee or other
employee organization actually acted in the interests of the
employees but against the wishes of the employer, the bill
would give the employer the right to terminate the employee
organization at will.
The majority tries to find support for its effective repeal
of National Labor Relations Act section 8(a)(2) in the fact
that S. 575, a bill sponsored by Senator Kennedy in the 103rd
Congress, mandated independent, democratic, joint safety and
health committees and exempted them from the definition of a
``labor organization'' under section 2(5) of the NLRA. They
should look somewhere else for support.
The Committee Report on S. 575 made clear that section
8(a)(2) was not amended or repealed:
Although the committee believes that committees
established under Title II would not pose a problem
under section 8(a)(2) of the National Labor Relations
Act, to ensure there will be no conflict between the
OSH Act and the NLRA the substitute provides that a
safety and health committee established under and
operating in conformity with the OSH Act does not
constitute a labor organiza- tion. * * * This section
does not, however, limit or modify the NLRA's
prohibition on company-dominated unions. Thus, if an
employer usurps the authority vested in the committee
under Title II, the employer's activities may still
constitute a violation of the NLRA.\2\
---------------------------------------------------------------------------
\2\ Report of the Senate Committee on Labor and Human Resources on
the Comprehensive Occupational Safety and Health Reform Act, 103rd
Cong., 2nd Sess., S. Rpt. 102-453, page 27 (1992).
---------------------------------------------------------------------------
Section 3. Inspections
Small business exemption
Section 3 would exempt from inspection farms with fewer
than 11 employees and establishments of fewer than 11 employees
within industries that have injury or lost workday case rates
below the national average. While small businesses face unique
challenges, and are deserving of special treatment from OSHA,
that should come in the form of compliance assistance and
penalty reductions, where appropriate, not in the form of
across-the-board exemptions from inspections.
Although a similar exemption has been added to OSHA's
appropriations bill for a number of years, workers at smaller
establishments should be entitled to the same rights and
protections as workers at larger establishments. As the
American Society of Safety Engineers testified: ``All Americans
have a fundamental right to a safe and healthful working
environment regardless of the size of the firm in which they
are employed. * * * [section 3(a)] could be interpreted by
small business that providing a safe and healthful workplace is
not a priority.'' \3\
---------------------------------------------------------------------------
\3\ Statement of American Society of Safety Engineers, ``Small
Business and OSHA Reform,'' Joint Hearing of the Committee on Labor and
Human Resources and the Committee on Small Business, S. Hrg. 104-316,
page 99 (December 6, 1995) (``Statement of ASSE'').
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In fact, workers at small establishments are already in
increased danger; businesses with fewer than 11 workers account
for 33 percent of all fatalities even though they account for
less than 20 percent of all employees. Moreover, even small
employers with terrible safety and health records could qualify
for the exemption if their industry has a low injury rate
overall. Workers at these establishments need and deserve the
protections of OSHA's targeted inspection program.
Even worse, S. 1423 would expand the current exemptions to
ban targeted health inspections for the first time, without
regard for the employer's occupational illness record. The
majority pretends to codify the small business appropriations
rider, but they do not. In enacting the small business rider in
past years, Congress has repeatedly recognized the importance
of health inspections by excluding them from the scope of the
rider. Indeed, health inspections protect workers from latent
hazards that many small employers may not even recognize. No
new justification or evidence has been offered which would
warrant depriving millions of workers at small establishments
of this critical protection against health hazards.
Finally, the data S. 1423 would use to determine
eligibility for the exemption may be suspect. As one witness
testified before the Committee, ``many observers believe that
the BLS annual survey is marred by serious and pervasive
underreporting, especially among the smaller employers.''
Codifying the small business exemption would permanently rely
on these questionable data.
Employee complaints
Section 3 would amend section 8(f)(1) of the OSH Act to
require employees submitting written complaints to state (1)
whether the alleged violation has been brought to the
employer's attention, and (2) whether the employer has refused
to remove the hazard. This provision will discourage workers
from filing complaints about unsafe work practices.
While in current practice OSHA's complaint form asks
employees whether they have alerted employers about the hazard
in question, the agency does not require workers to respond.
Many workers are afraid of retaliation by their employers, and
OSHA's experience with antidiscrimination complaints suggests
that in many cases their fears are well-founded. Establishing
the above statutory requirements--including a requirement that
the worker indicate ``whether the employer has refused to take
any action'' to correct the hazard--could easily be
misunderstood as requiring workers to identify themselves to
their employers as a prerequisite to filing a complaint.
As such, this provision may cause a chilling effect on the
filing of worker complaints, and a consequent reduction of
worker protections. Alternatively, if workers were unaware of
these provisions, employers would file procedural challenges to
complaints which failed to provide the required responses, and
OSHA might be precluded from conducting an inspection even when
workers were facing substantial risks.
The Voluntary Protection Programs Participants'
Association, a group of employer participants in OSHA's VPP
excellence recognition programs, opposes this provision of S.
1423 for similar reasons:
[W]e believe employees should not be required to
state whether or not they informed their employer of
the safety complaint. While the VPPPA encourages
employees to bring safety concerns to the attention of
management before contacting OSHA, we realize that this
may not always be possible. Employees must have direct
access to OSHA, and they must feel free to report
safety or health concerns without fear of retaliation.
While we recognize that the current OSH Act contains
specific remedies for employer retaliation, many times
employees do not know these rights or are not willing
to risk losing their jobs.\4\
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\4\ Statement of Lee Ann Elliot, Executive Director, VPPPA, ``Small
Business and OSHA Reform,'' Joint Hearing of the Committee on Labor and
Human Resources and the Committee on Small Business, S. Hrg. 104-316,
page 125 (December 6, 1995) (``Statement of VPPPA'').
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A worker's right to an OSHA inspection
In enacting the OSH Act in 1970, Congress established two
important principles: first, that employers have an obligation
to provide a safe workplace, and second, that workers have a
right to an OSHA inspection where dangerous hazards are
present. Section 3 of S. 1423 would repeal this second
principle.
Currently, section 8(f)(1) of the OSH Act provides that
OSHA ``shall'' conduct an inspection in response to a complaint
when the agency determines that thee are ``reasonable grounds''
to believe that ``a violation of a safety or health standard
exists that threatens physical harm.'' S. 1423 would change
``shall'' to ``may'', giving OSHA the discretion to decline to
inspect even where it concludes that there are clear dangers to
workers.
Workers have had the right to an OSHA inspection for 25
years, and no evidence has been offered to warrant the repeal
of that right. Proponents of S. 1423 have questioned whether
protecting this right represents the best use of OSHA's limited
resources. In fact, as is discussed below, OSHA has
substantially improved efficiency through reforms in complaint
handling procedures, while simultaneously protecting this
fundamental right. With these improvements, a significantly
higher rate of complaint-based inspections have led to findings
of serious hazards than was the case in the past.
In many cases, only an OSHA inspection will ensure that
workers are adequately protected. In 1992, for example, workers
at the Lundy packinghouse in North Carolina suffered an
outbreak of brucellosis, a hog-transmitted disease. North
Carolina's health agency investigated, and recommended that the
company purchase only brucellosis-free herds. The company also
underwent a state consultation visit; the consultant
recommended employee training and personal protective
equipment. The employer followed neither recommendation,
resulting in an epidemic of brucellosis cases that accounted
for half of the cases reported nationwide.
The following year, an employee filed a complaint with
OSHA. In response, the agency conducted an inspection, issuing
citations and fines totalling $13,000. Only then did the
employer address the hazard by changing its hog purchasing
policies, and by providing workers with medical surveillance,
treatment, education and training.
In sum, workers' longstanding statutory right to an
inspection represents a sound public policy that should not be
overturned. As the American Industrial Hygiene Association
testified before the House Economic and Educational
Opportunities Committee, ``whatever change occurs in our
federal health and safety law, a worker's right to ask for help
in preventing injuries and illnesses should be a mainstay of
any legislative action.''
Limiting the scope of inspections
Section 3 of S. 1423 would also prohibit OSHA from
expanding a complaint inspection beyond the hazards identified
in the complaint. The only exception would be for violations
``observed'' during the inspection. This would exclude worksite
areas not covered by the complaint, as well as many hazards
(such as airborne toxins) which cannot be observed. Thus, if a
compliance officer, responding to a complaint, encountered an
employer who blatantly disregarded worker safety, or discovered
a pattern of serious injuries by reviewing the employer's
injury log, the compliance officer would be precluded from
expanding the inspection to assure protection of all workers at
the facility.
This provision would substantially impede OSHA's ability to
protect workers. For example, last January, OSHA responded to a
complaint at Glacier Vandervill, a manufacturer of fluid film
bearings located near Columbus, OH. The complaint alleged that
employees exposed to lead were not receiving blood lead level
evaluations as required by the standard. When OSHA entered the
plant and examined the injury/illness logs, the compliance
officer discovered large numbers of lead exposure violations--
but also found that workers had suffered amputations and
crushing injuries from mechanical power presses. In response,
OSHA then expanded the investigation to include the entire
facility. The agency eventually cited the company for
overexposure to lead, failure to establish a hearing
conservation program, deficiencies in power press guarding and
safety controls, violations of the standard on confined spaces,
fall protection violations, as well as an inadequate lockout-
tagout program. Under S. 1423, however, OSHA's inspection would
have been limited to checking for blood lead problems and the
agency would have been precluded from protecting workers from
other substantial hazards.
Similarly, when OSHA expanded a complaint-based inspection
at Eastern Prestressed Concrete in Hatfield, PA, the agency
found serious hazards such as unsafe industrial trucks,
improper use of cranes, unguarded floor openings, and unguarded
conveyor belts, saws and grinders. The OSHA Area Director
commented that ``with 30 years'' experience inspecting heavy
equipment I have never observed equipment that was operated in
such a hazardous condition.'' Many of these hazards were not
raised in the initial complaint. As a result, under S. 1423,
OSHA would have been precluded from identifying many of these
hazards and protecting workers from them.
The use of telephone and facsimile machines
S. 1423 would allow OSHA to investigate both formal and
informal complaints by telephone, facsimile or other
appropriate methods instead of conducting an inspection. While
OSHA has itself found these investigation methods desirable for
informal complaints, they should not be used at the expense of
the fundamental worker right to an inspection.
Under current law, OSHA handles worker complaints by
distinguishing between formal and informal complaints. If a
worker files a written, signed, formal complaint, and OSHA has
reasonable cause to believe that a hazard or violation exists,
OSHA is required by section 8(f) of the OSH Act to conduct an
inspection. In contrast, if OSHA receives an informal complaint
(such as a telephone call or an unsigned writing), the agency
has discretion under section 8(a) of the OSH Act to conduct an
inspection or to opt for an alternative method of
investigation. Traditionally, due to resource constraints, OSHA
has responded to most informal complaints by writing a letter
to the employer inquiring about the alleged hazards, and
awaiting a response by letter, a process that often takes
several weeks.
More recently, the agency has conducted pilot programs in
which it used telephone calls and facsimile transmissions
instead of letters to resolve informal complaints. Workers are
offered a choice between this expedited informal complaint
process and the traditional formal complaint process (with an
inspection if the complaint gives OSHA reasonable cause to
believe that workers are exposed to hazards). In this manner,
these programs have protected workers' statutory right to a
government inspection where they are exposed to serious danger.
OSHA is now expanding these pilot programs nationwide.
Proponents of S. 1423 contend that roughly half of OSHA's
complaint-based inspections turn up no serious hazards, and
that S. 1423's proposed change (to allow the use of telephone,
facsimile and other investigative tools for both informal and
formal complaints) is necessary to address this problem. This
change, however, would effectively repeal workers' statutory
right to file a formal complaint and obtain an inspection.
In addition, employers could routinely be notified in
advance of the likelihood of an OSHA inspection. The element of
surprise is critical to the success of the agency's enforcement
program; that is why giving advance notice of an inspection to
an employer constitutes a criminal offense under section 17(f)
of the OSH Act. S. 1423 encourages OSHA to give notice to
employers before every inspection, which would in turn
encourage employers to ignore hazards until OSHA calls. Such a
change in the law would substantially undermine the OSH Act's
preventive and deterrent purposes.
Moreover, it is simply wrong to assume that the agency is
wasting its resources every time a complaint inspection results
in a finding of no violations. Workers exposed to toxic,
airborne substances such as lead may be unable to determine the
extent of their exposures without an OSHA inspector's help. An
inspection conducted to make such a determination would not be
a waste of agency resources even if the exposure levels turn
out to be within safe margins. Similarly, when OSHA finds a
serious hazard that is not covered by the Act's standards or
general duty clause, it is not a waste of resources for the
agency to inspect and recommend appropriate abatement actions
to the employer, even though there is no violation of the act.
Finally, rather than improving efficiency, this provision
of S. 1423 could well increase the time between the filing of a
formal complaint and abatement of the hazard. In cases in which
OSHA chose to conduct an inspection, the inspection would be
delayed several days to allow for the exercise of telephone and
facsimile procedures.
In fact, OSHA has substantially improved the efficiency of
its complaint handling procedures without sacrificing the
fundamental worker right to an inspection. The agency's pilot
programs dramatically reduced the time period from the filing
of an informal complaint to abatement of the hazard. In
addition, with the promise of speedy abatement, more workers
chose to file informal complaints. Workers filed formal
complaints only where they believed them to be absolutely
necessary, such as when the worker had already raised his or
her concern with the employer to no avail. As a consequence,
preliminary data indicate that OSHA found serious hazards in a
much higher percentage of cases (an early estimate of 67
percent as opposed to roughly 54 percent before the pilots).
OSHA is now in the process of expanding the use of
telephone and facsimile transmissions for the investigation of
informal complaints to all offices. Significantly, workers are
still entitled to an inspection if they choose to file a
formal, signed, written complaint that gives the agency
reasonable cause to believe that a hazard exists. The
alternative investigative methods of telephone and facsimile
transmissions are not acceptable where a worker seeks to
exercise his or her statutory right to file a formal complaint
and obtain an inspection.
Determining the complainant's motivation
Section 3 of S. 1423 would allow OSHA to forego a complaint
inspection if it determines that the complaint was made for
reasons other than safety and health--even where the workers in
question are at substantial risk. The agency's determination as
to whether to inspect following a 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 should be 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.
No evidence was ever presented to the committee in support
of this provision. And even the hypothetical examples the
majority puts forward to support the provision fail to provide
any support. A ``disgruntled former employee or competitor'' is
not an employee with a right to an OSHA inspection under
current law. OSHA already has discretion to refuse to inspect
in response to an otherwise valid written complaint.
Section 4. Worksite-based initiatives
Section 4 of S. 1423 would authorize exemptions from
scheduled inspections if an employer (1) had been inspected
under a consultation program or independent audit by a
certified auditor during the preceding year, or (2) has an
``exemplary'' safety and health record and maintains a safety
and health program. This provision poses a number of
significant problems.
The use of broad-based exemptions
This provision--like many of OSHA's own reinvention
initiatives--seeks to leverage the agency's limited resources,
encourage employer/employee cooperation, and reduce the
adversarial nature of the relationship between OSHA and
employers. Nevertheless, the broad exemption described above
does not represent the best balancing of these goals with
OSHA's statutory mission to protect workers.
Currently, OSHA allows an exemption from scheduled
inspections only under limited circumstances, when an employer
demonstrates a superior commitment to worker safety and health.
Under the VPP program, for example, participants must meet
stringent criteria that demonstrate continued excellence in
safety and health as a prerequisite to an exemption. Moreover,
VPP sites receive a comprehensive on-site inspection by OSHA
representatives and are subject to periodic monitoring
inspections as a condition of continuing VPP approval. Only a
few hundred worksites have qualified for a VPP exemption.
By contrast, section 4 of S. 1423 would grant a broad
exemption from targeted inspections. In fact, OSHA estimates
that roughly 94 percent of U.S. firms would be eligible for an
exemption under S. 1423's various provisions.
Under section 4, for example, an employer could qualify for
an exemption just by undergoing even a very limited
consultative visit. Unfortunately, all too often such visits do
not reflect employer commitment to protect workers. For
example, MIT Tank Wash of Garden City, GA, received a state
consultation visit in 1990, and was told to purchase a
retrieval system to rescue workers cleaning tanks. The employer
purchased the equipment, but returned it three months later.
Subsequently an employee cleaning a chemical tank was overcome
by toxic fumes and died. The employer was sentenced to 6 months
in prison and fined $190,000. MIT Tank Wash could have
qualified for a inspection exemption under S. 1423.
On the introduction of S. 1423, Chairman Kassebaum
recognized that ``[t]o be effective, OSHA must use its
resources efficiently.'' The proponents of S. 1423 contend that
section 4's exemption program would further this goal, by
allowing OSHA to focus its limited resource on the most
dangerous workplaces. In fact, the opposite is true: this
provision would require the agency to shift substantial
resources away from targeted inspections, to the processing of
exemption certification paperwork submitted by employers.
OSHA estimates that 6.4 million employers would be eligible
for section 4's exemption program. Assuming that only 10
percent of these eligible employers actually applied for the
exemption, OSHA estimates that the administrative costs of
processing 640,000 applications would involve several hundred
agency employees, at a cost of up to $30 million. (Notably, BLS
spends roughly $20 million annually to process 280,000 annual
survey forms.)
While section 4 appears to exclude monitoring inspections,
OSHA believes that such inspections would be necessary to
ensure that the employers that apply for exemptions actually
protect their workers. If OSHA chose to audit just 10 percent
of these applications to ensure such protection, the agency
estimates that these 64,000 audits would involve even more
agency employees, at a cost of up to $45 million. Together,
these processing and auditing costs could consume more than a
quarter of OSHA's current appropriation. As a result, OSHA
would be forced to curtail targeted inspections or cease
conducting them altogether.
The majority argues that resource constraints are not
really a problem for OSHA, and offers as proof that OSHA has
proposed ``new and burdensome regulations on ergonomics.'' In
fact, OSHA has never issued a proposed rule and which has been
banned for two consecutive fiscal years from doing so.
Third-party certification
In addition, there are many unresolved issues surrounding
third-party certification. The Vice President's National
Performance Review recommended that OSHA consider the use of
employer self-audits as a leveraging device, with the audits
being performed by employees or by third parties.
In 1994, however, at an OSHA stakeholder meeting,
representatives of industry and labor expressed serious
reservations about the use of third-party certification in the
area of occupational safety and health. Similarly, in a 1995
poll conducted by the National Safety Council Safety and Health
Journal, respondents rejected third-party certification as
desirable reform by nearly a two-to-one ratio (42 percent to 23
percent). Participants at the 1994 stakeholders' meeting raised
questions such as: Who would certify the third parties? What
would the certification criteria be? Should OSHA divert its
limited resources to facilitate a costly certification process?
What is the legal liability of private sector experts
certifying a workplace which later suffers a serious accident?
Would third-party auditors be agents of OSHA, employees or the
employer? Who would pay for the audit? If the employer pays,
would it create a conflict of interest?
Conflicts of interest would be almost unavoidable under the
scheme the bill would create. Since the third party auditor
would be hired by the employer and would depend on the
employer's repeat business and good will for his livelihood,
there would be enormous incentives to overlook problems and to
certify employers despite the existence of serious hazards to
the employees.
VPPPA employers warned the committee that ``because the
third-parties would be selected and paid for by the facility,
the possibility exists that the auditors may tell facility
managers what they want to hear.'' 5 These employers have
also pointed out that ``employees are more likely to trust OSHA
with their safety and health issues'' than third-party auditors
who are paid by their employer.
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\5\ Statement of VPPPA at 126.
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Some stakeholders urged OSHA to restrict third party audits
to the employer's safety and health program rather than to the
entire workplace. Others encouraged OSHA to evaluate the
effectiveness of existing audit programs in the context of
corporate-wide settlements and existing safety and health
committees before embarking on the untested waters of third-
party certification.
The resource issues are particularly troubling. Again, this
provision would require OSHA to reallocate substantial
resources away from inspecting the most dangerous worksites,
towards certifying thousands of safety and health consultants.
As one witness observed, ``OSHA would become an agency that
reviewed employer paperwork and certified consultants, not one
that investigated workplace hazards.''
Requiring OSHA to certify individuals to provide a worksite
evaluation leading to exemption from inspection would place an
enormous burden on the agency, both in the pre-certification
process and in quality control. Certification is a costly,
time-consuming process, as OSHA has seen when it accredits
testing laboratories under existing statutory authority; each
such certification costs roughly $40,000.
At the same time, reliance on the private sector for such
certifications would leave third-party consultants with little
accountability, except to the employers that hired them.
Similarly, exempting the employer's worksite from the
possibility of on-site inspections would minimize employer
accountability for safety and health audits and for maintaining
a safe workplace.
Congress would never be so foolish as to grant audit
exemptions to employers who hire CPAs to certify to the IRS
that their tax returns are accurate and in compliance with the
law. We know that such a system would be systematically abused.
Why would we be less protective of worker health and safety
than we are of the government's tax revenues?
Ultimately, although we are skeptical, the concept of
third-party certification may have some utility as a means of
leveraging scarce resources. But is simply far too early to
tell if the concept is workable in the context of worker safety
and health, let alone so reliable that it deserves codification
in the OSH Act. Rather than enacting a broad-scale statutory
scheme, OSHA should be allowed to continue to explore this
concept further through pilot programs. The results of this and
other similar initiatives should be reviewed and the necessary
monitoring and quality control mechanisms must be in place
before decisions are made as to whether third-party
certification should be used on a broader scale.
``Exemplary'' safety and health records
Section 4 also allows exemptions for employers who have an
``exemplary'' safety and health record (fewer lost workdays
than the applicable industry average) and a safety and health
program (including procedures for assessing and correcting
hazards, employee participation, and employee training). While
we are glad to see that the committee's majority recognizes the
importance and effectiveness of safety and health programs, a
broad-scale inspection exemption is not warranted in these
circumstances. Instead, we would prefer to see such programs
mandated for all employers and a health and safety standard
should be promoted through penalty reductions, incentive
programs such as Maine 200 and Focused Inspections in
Construction, and the development of a Safety and Health
Program Standard.
Firms with unexceptional safety records would be deemed
``exemplary'' under the bill, even though many of them might be
quite dangerous. For example, according to the North Carolina
Occupational Safety and Health Program, the Imperial Foods
processing plant where 25 workers were killed in a fire in 1991
had a lower than average lost workday injury rate and would
have been considered an exemplary employer under S. 1423.
The bill's exemption criteria pose a particular problem in
high-hazard industries where injury rates are excessive across
the board, For example, in meatpacking, the average injury rate
is 36 per 100 workers, and the average lost time injury rate is
19 per 100 workers. Yet firms with this record of injuries
would be considered exemplary employers and eligible for
exemption even though their injury rates are five times higher
than the national average for all injuries.
In fact, the use of an employer's injury data as a primary
or exclusive basis for enforcement relief poses problems in and
of itself. First, the bill allows OSHA to conduct random
audits, but would only allow the agency to audit an employer's
records, not actual working conditions. Thus, unsafe employers
who declare themselves eligible for an exemption would not be
held accountable for their failure to protect workers. As the
American Society of Safety Engineers testified ``the
legislation should require an actual physical assessment of the
facility.'' \6\ The VPPPA employer association concurred that
precluding OSHA from conducting monitoring inspections would
``reduc[e] the credibility of these [third-party]
inspections.'' \7\ OSHA learned first-hand in the 1980's that
enforcement exemptions based solely on employer-provided data
will encourage some employers to falsify their records.
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\6\ Statement of ASSE at 100.
\7\ Statement of VPPPS at 126.
---------------------------------------------------------------------------
Second, the unpredictability of small employer injury and
illness rates further demonstrates the difficulties posed by
section 4. In general, such rates have no predictive value: a
small employer may have no reportable incidents one year, and
then have an extremely high rate the next year based on just
one or two incidents. Thus, for example, workers' compensation
insurers give small employers a pooled or capped experience
rating because of the high year-to-year volatility of claims
and injuries.
Third, section 4 ignores hazards that pose long-term health
risks to workers. While an employer's injury data are relevant
to assessing the need for an OSHA inspection, it would be
unwise to use them as the sole or primary basis for an
inspection exemption.
Finally, the bill's measure of an ``exemplary'' record is
the raw number of lost workdays; the measure is not defined as
a rate, such as lost workdays per 1,000 employees. This
radically skews the measure in favor of smaller companies. A
dangerously unsafe company with a 100 percent injury and
illness rate among its 20 employees would be far more likely to
have a below average number of lost workdays than a company
with 1,000 employees whose injury rate was only 3 percent.
We object to the majority's misuse of the fact that labor
union officials participated in a Maryland state occupational
safety and health task force to imply that they support the
inspection exemptions in S. 1423. In fact, the Maryland AFL-CIO
strongly dissented from the Maryland task force report that the
majority cites and opposes ``any measures toward self-
inspection or self audit.'' \8\
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\8\ Letter from Edward A. Mohler, President, Maryland State and
D.C. AFL-CIO to Edward M. Ranier, Esquire, Chairman, MOSH Task Force
(December 5, 1995).
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OSHA access to employer self-audit records
In her opening statement at the Committee's November 29,
1996 hearing, Chairman Kassebaum declared that S. 1423
``encourages the agency to focus on the most serious hazards
and the most dangerous worksites.'' Yet that objective is
seriously undermined by section 4 of the bill, which bars OSHA
from reviewing certain records of safety and health
inspections, audits or reviews unless a worker was killed or
injured on the job. Prohibiting OSHA's access to these records
will impede the agency's effort to target its limited resources
at the worst worksites. (The bill includes another exception--
allowing OSHA access when the employer has not corrected the
hazards identified in the self-audit--but it would be
impossible for OSHA to know whether this was the case without
first having access to the records.)
This provision does not represent an appropriate balance
between an employer's desire for confidentiality and OSHA's
need to determine whether employers were aware of serious
hazards prior to an inspection. Moreover, this provision could
be read to deny OSHA access to a host of records required by
the agency's own standards and regulations, including exposure
monitoring, process hazard evaluation reports, hearing
conservation tests, and other similar records.
Reasonable access to employer self-audit records is
essential to OSHA's efforts to protect American workers. In
some cases, this information will be critical to OSHA for
enforcement purposes. More significantly, at a time when
promising initiatives are underway at OSHA to evaluate and
reward efforts by employers to improve employee health and
safety, OSHA would be completely unable to assess the
effectiveness or good faith of employer-initiated safety
programs without access to underlying documentation. Finally,
allowing employers to refuse to disclose their health and
safety records will, for some employers, remove the incentive
to take prompt and effective action to eliminate any hazards
disclosed by these in-house reports.
In practice, an employer's self-audit records are not used
against employers who have made good faith efforts to protect
their workers. As a result, this provision would only protect
employers who have identified hazards and consciously failed to
correct them.
Section 5. Employer defenses
Employer knowledge
Current law prevents OSHA from issuing citations for
serious violations unless the employer knew or ``could'' have
known of the violation. Section 5 of S. 1423 would prevent OSHA
from issuing a citation for any violation unless the employer
``knew, or with reasonable diligence would have known'' of the
violation.
Although the impact of these changes is not altogether
clear, they appear to be intended to increase the agency's
burden of proving violations of the Act or OSHA standards. The
agency's ability to protect workers could well be compromised
as a result.
No testimony was offered to justify this change in the law.
Employee misconduct defense
Section 5 also attempts to codify the so-called ``employee
misconduct'' defense. In its testimony on S. 1423, OSHA
supported the codification of this longstanding employer
defense, to the extent that its requirements track existing
OSHA case law. This provision would require the employer to
prove this affirmative defense, as is now the case.
The ``alternative methods'' defense
Section 5 would also 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. This provision could seriously
undermine OSHA's standards, and in turn every enforcement
action into a costly and time-consuming variance proceeding.
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 only 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: under 10 percent of all citations are contested currently.
Under this provision of S. 1423, 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. As the VPPPA employer
association recognized, this provision ``might create a
loophole by allowing employers to circumvent OSHA standards * *
* as well as create additional litigation.'' In effect,
standards would no longer be mandatory, but would be subject to
challenge--and potential waiver) in every individual contested
case.
As a consequence, judges with little or no safety and
health expertise would make determinations as to the adequacy
of worker protections, rather than trained safety and health
professionals. This provision could have a substantial impact
on agency resources, and greatly increase litigation burdens on
OSHA, the OSH Review Commission, and the Federal courts.
The provision does not require that the employer take any
action to request a variance or to obtain an independent
opinion about the appropriateness of its alternative
compliance. It encourages employer to ignore accepted practices
and take chances with their employees' safety.
Section 6. Inspection quotas
Section 6 of the bill would prohibit OSHA from establishing
``quotas'' for inspections, citations or penalties. For many
years, Congress used inspections, citations and penalties as
measures of OSHA's performance. As a result, the agency used
them as performance measures as well. In all likelihood, these
performance measures encouraged OSHA compliance officers to
improve their personnel evaluations by maximizing the number of
violations cited and the penalties assessed. By doing so, they
contributed to OSHA's reputation as a nitpicky, overzealous
enforcement agency.
To address this problem, OSHA eliminated these performance
measures last year. OSHA is currently in the process of
developing a performance measurement system that is more
closely tied to improvements in worker safety and health. We
support this section of S. 1423.
Section 7. Warnings in lieu of citations
Currently, the OSH Act provides that OSHA ``shall'' issue a
citation for each violation it discovers during an inspection.
Section 7 of S. 1423 would change this rule to ``may.''
Although federal case law demonstrates that OSHA possesses a
greater degree of prosecutorial discretion than was recognized
in the early years of the agency, this provision would remove
any limits to such discretion.
Section 7 has generated much confusion, even among its
authors. For example, in introducing S. 1423 Senator Gregg
described the bill as including ``warnings in lieu of citations
for nonserious violations.'' In fact, the bill would allow OSHA
to issue warnings instead of citations for all violations,
including willful, repeat, failure to abate, and serious
violations.
Similarly, in her opening statement at the committee's
November 29, 1996 hearing, Chairman Kassebaum stated that S.
1423 ``encourages employers voluntarily to improve workplace
safety.'' Yet that objective is seriously undermined by section
7 of the bill, which would allow OSHA to issue warnings instead
of citations whenever an employer acts promptly to abate a
violation. Such a policy would encourage employers not to take
voluntary steps, but to wait until an OSHA inspector arrived to
conduct an inspection. By eliminating both the preventive and
deterrent functions of OSHA's enforcement program, section 7
would turn that program on its head.
Witnesses at the hearings on S. 1423 also demonstrated
confusion about the impact of section 7. For example, the Labor
Policy Association testified that it was ``pleased that S. 1423
gives discretion to OSHA to issue warning notices in lieu of
citations in cases where an alleged violation poses no threat
to employees.'' In fact, that is OSHA's current policy, known
as the de minimis rule. S. 1423 would go much farther, allowing
the agency to issue warnings instead of citations even where
workers are killed, seriously injured, or permanently disabled
by occupational disease.
In addition, the changes proposed in this section might be
misunderstood by some employers as a limitation on OSHA's
authority to issue citations. For example, paragraph 2(B)
allows the issuance of a ``warning in lieu of a citation'' for
violations that the employer ``acts promptly to abate.'' Even
though it does not require OSHA to issue a warning in such
circumstances, we agree with Assistant Secretary Dear that this
provision may signal employers that they need not take
preventive steps to protect their workers prior to an OSHA
inspection. Such a signal would undermine both the preventive
purpose as well as the deterrent effect of OSHA's enforcement
program.
Ultimately, prompt abatement of hazards should be
encouraged, but it should be encouraged through penalty
reductions, not by eliminating any citations whatsoever for the
violations. Otherwise, employers who made good faith efforts to
protect workers before an OSHA inspector arrived at their door
would be treated the same as neglectful employers that ignored
their workers' safety until the inspection.
Charles Jeffress, Director of North Carolina's State OSHA
Program, made a similar point in testifying before the House
Committee on Economic and Educational Opportunities:
Warning tickets will encourage employers to gamble
with their employees' lives and health, knowing they
have to take no precautions until OSHA arrives. There
are employers who are willing to take big risks with
safety in the mistaken belief that it will reduce costs
or provide some competitive advantage. To say to these
employers, ``there will be no penalty for violating
safety and health rules as long as you fix things after
OSHA has found you'' is to convey the wrong message. I
urge you not to send them this message.
Section 8. Penalty reductions
Section 8 of the bill would make several major changes in
OSHA's penalty policies, reducing penalties for nonserious
violations, limiting penalties for recordkeeping or
``paperwork'' violations, revising the factors to be considered
in assessing a penalty, and providing for substantial penalty
reductions in specific situations. These provisions would
seriously undercut the preventive and deterrent goals of OSHA's
penalty policies. For example, while OSHA's penalty reduction
policies generally reward employers for protecting workers
before OSHA arrives at the doorstep, many of these changes
would reward employers who did little until OSHA arrived.
$100 penalty limit for non-serious violations
Section 8 would reduce the maximum penalty for non-serious
violations from $7,000 to $100. As a general matter, OSHA
typically does not assess penalties against employers for non-
serious violations: in FY 1995, for example, employers were not
penalized for 92 percent of all non-serious violations.
However, the average penalty for the other 8 percent of these
violations was $739. These violations included such hazards as
inadequate fire exits and failure to monitor excessive noise
levels. OSHA needs to retain the authority to levy significant
penalties for violations which may threaten workers even if
they do not technically meet all of the criteria to be
classified as serious.
Posting and paperwork violations
As part of its reinvention effort, OSHA has taken steps to
limit citations and penalties for paperwork violations
unrelated to safety and health. For example, citations for the
most common paperwork violations declined 35 percent between
1991 and 1994. OSHA's compliance officers no longer cite for
minor paperwork requirements; they advise and educate the
employer instead. To illustrate, for years OSHA issued
thousands of violations annually for failing to put up the
required OSHA poster. Last year, OSHA decided just to give
employers a poster and ask them to put it up. The number of
poster violations has dropped from several thousand a year to
near zero. Similarly, if there are no injuries or illnesses to
record, OSHA no longer cites an employer for failing to
complete the agency's recordkeeping requirements.
At the same time, the agency needs to retain the discretion
to penalize employers who under-report injuries and illnesses.
Without accurate data, OSHA would be unable to accurately
determine the nature of workplace problems, would not know
where to target inspections, and would be unable to evaluate
the effectiveness of its interventions. Furthermore, the bill
fails to recognize that there are many other important
``paperwork'' requirements that significantly and directly
protect workers from serious injury or illness. Penalties for
OSHA violations concerning written lockout/tagout programs,
process hazard analysis at chemical plants, hearing
conservation and toxics exposure monitoring records all would
be reduced by the bill.
According to the majority report, ``the legislation
eliminates penalties for posting or paperwork requirements.''
This is thoughtless overkill. OSHA will not be able to enforce
effectively the requirement to keep injury and illness logs,
which occupational safety and health professions consider one
of the most valuable tools available. OSHA will be unable to
enforce effectively the requirement to have material safety
data sheets for extremely hazardous substances including
carcinogens and neurotoxins. For these reasons, the VPPPA
employer association did not support this provision of S. 1423,
stating instead that it ``support[s] OSHA's authority to issue
first instance citations for all violations.'' (Emphasis
added.) \9\
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\9\ Statement of VPPPA at 128.
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Consideration of mitigating factors
S. 1423 would expand the statutory list of factors to be
considered in the assessment of penalties, adding such factors
as whether the employer abated the hazard after the inspection,
whether the violations involved paperwork requirements, whether
employee misconduct contributed to the violation, and whether
the penalty might affect the employer's ability to remain in
business.
None of the four proposed factors would improve the act,
but only the last, which would require the agency to consider
the effect of the penalty on the employer's ability to stay in
business, poses serious problems. In practice, many of the most
negligent companies are those operating on the margins; they
are looking for any means of cutting costs to gain a
competitive advantage, and worker protections are often
sacrificed. For example, Imperial Foods of Hamlet, North
Carolina cut costs by not installing a sprinkler system and by
not maintaining its fryer fuel lines. The company saved money,
but twenty-five workers paid with their lives when a flash fire
started on the fryer line. Under S. 1423, OSHA might be
precluded from assessing significant penalties against similar
employers operating on the margins by endangering their
workers.
The Occupational Safety and Health Act provides OSHA great
discretion in assessing proposed penalties and has not resulted
in excessive penalties. Indeed, the current average federal
OSHA penalty for a serious violation (where there is a
substantial probability that death or serious harm could
result) is only $753, though the law permits of a maximum
penalty of $7,000. There is no need for changes in the law that
would further reduce penalty assessments and the incentive they
provide for compliance.
Minimum penalty reductions (25 percent to 75 percent)
The existing OSH Act sets maximum penalties, and one
minimum penalty for willful violations, and requires OSHA to
consider an employer's size, good faith, and history, and the
gravity of the violations, in assessing penalties. This
statutory scheme allows the agency to establish particular
penalty policies administratively and implement such policies
on a case-by-case basis. In contrast, section 8 of S. 1423
would establish mandatory minimum penalty reductions, limiting
OSHA's discretion to set policies, modify them as experience
dictates, and apply them on a case-by-case basis, considering
all relevant facts and circumstances. Notably, the VPPPA
employer association concluded that penalty reductions should
be developed administratively by OSHA: ``This will allow OSHA
to develop the most efficient method of rewarding these good
faith employers while maintaining its ability to amend the
program when necessary.''
S. 1423 would reduce penalties by a minimum of 25 percent
if the worksite has either an ``exemplary'' safety record or a
safety and health program (a minimum of 50 percent if it has
both). The definition of ``exemplary'' would include hundreds
of thousands of employers whose records are not exemplary at
all. These employers could qualify for major penalty reductions
even where they have ignored serious, widespread hazards; even
where the employer has committed willful, repeat and failure to
abate violations, and even where workers have been killed,
seriously injured, or permanently disabled by occupational
disease.
In addition, stating penalty reductions in terms of an
automatic ``minimum'' reduction leaves the agency without
enough discretion to weigh countervailing factors. An employer
with a truly effective safety and health program should receive
a penalty reduction, and under current practice, OSHA would
grant one. But what about an employer that merely, as section 8
provides, ``maintains a safety and health program''? Nothing in
section 8 requires the program to be effective in order to
entitle the employer to the minimum penalty reduction of 25
percent. An employer with a written safety and health program
could have 15 or 20 willful and repeat violations that resulted
in the death of employees, but this provision would require
OSHA to reduce the penalty. S. 1423 denies the agency
discretion and guarantees absurd and unjust results.
Another provision would reduce penalties by a minimum of 75
percent if the worksite has received a consultation visit or
third-party audit within the preceding year and the employer
has abated any identified hazards within a reasonable period of
time. In addition to the concerns about minimum penalty
reductions we mentioned above, and our concern regarding third-
party certification, this provision would grant a substantial
penalty reduction even for consultation visits with very
limited scope. Thus, the 75 percent reduction would still apply
to willful violations that fell outside the scope of a
consultation visit, third-party audit or self audit.
In addition, the bill would allow a 75 percent reduction
even where the employer has a substantial history of safety and
health violations and workplace injuries. Employers would also
remain eligible for these reductions even if the hazards in
question arose after the consultation visit or audit, and even
if they allowed safety and health conditions to deteriorate
after initially complying with a consultant's recommendations.
Section 9. Consultation programs
Section 9 would codify the consultation services currently
funded by OSHA under section 7(c)(1) of the OSH Act. As a
general matter, OSHA supports the codification of current
consultation programs.
The requirement for at least 15 percent of total OSHA
appropriations to be spent on education, consultation, and
outreach efforts would probably not require any adjustments in
OSHA programs. Nevertheless, it may be unwise to tie the
agency's consultation efforts to a specific percentage of
appropriations. In future years, OSHA's appropriation may
increase or decrease, and the appropriate mix of consultation
and enforcement might shift as well.
Section 10. VPP programs
Section 10 would codify the existing Voluntary Protection
Program. Notably, OSHA testified in support of the codification
of this current excellence recognition program.
OSHA's VPP program has traditionally been reserved for
employers that have demonstrated the highest commitment to
worker safety and health. Unfortunately, this provision of S.
1423 does not define this primary characteristic of VPP. Nor
would the bill require VPP participants to provide meaningful
employee involvement in safety and health. Ideally, any
codification of this program should limit participation to
employers that 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.
This section would also authorize OSHA to charge an annual
fee to VPP participants; the fees would not be available to
support administration of the VPP, but would be deposited in
the general treasury of the United States. If fees are to be
charged for participation, they should be applied to support
the program. They should not be treated as a tax.
Section 10 would also require OSHA to establish cooperative
agreements to encourage the establishment of comprehensive
safety and health management systems. A substantial body of
evidence has established that such systems can dramatically
reduce injury and illness rates. For example, VPP participants
are required to establish comprehensive safety and health
programs and such participants have injury and illness rates 60
percent below their industry averages.
Although the VPP program will undoubtedly retain the
enthusiastic support of Congress even without codification, we
support an amendment that would authorize the program
statutorily and that would accurately codify the program's
current requirements.
Democratic Amendments
simon amendment extending osha coverage to federal, state and local
employees
By a vote of 9-7, the committee accepted Senator Simon's
amendment extending OSHA coverage to Federal, State and local
government employees. This change in the OSH Act is long
overdue. Over 1,700 public employees die each year on the job,
and almost half a million more suffer disability.
Federal employees in particular lack protection from unsafe
work environments. Federal employees are excluded from coverage
by OSHA, and, although Executive Order 12196 requires OSHA to
conduct annual inspections of Federal workplaces, OSHA has no
authority to issue citations or impose penalties upon non-
complying agencies. As a result, the protection of
approximately 3.2 million Federal employees remains at the
discretion of their employers.
Altogether, approximately 7.3 million public employees in
27 States have no health and safety protection from Federal
law. These employees have no whistleblower protection, or right
to request an OSHA inspection. On the other hand, only 23
States have enacted their own safety and health plans as
suggested by the OSH Act.
A study conducted by Ruttenberg and Associates found that
providing public sector workers with OSHA coverage could save
the nation between $600 million and $2.1 billion a year. The
study found that Philadelphia alone could save $7.6 million
from the reduction of workdays lost to injuries; $2.9 million
in service-related disability costs; and $480,000 in medical
costs payable by the city.
By voting to apply OSHA to public employees, the committee
took an important step towards ensuring that all Americans
receive adequate protection against workplace injury and
disease.
Federal Contract Debarment Amendment
During its February 28, 1996 Executive Session, the
committee voted to accept Senator Simon's amendment providing
for Federal contract debarment for repeat OSHA violators. When
the Executive Session continued on March 5, 1996, the Chairman
moved for reconsideration, and the Simon Amendment was rejected
on a party-line vote. The amendment would have allowed the
Secretary of Labor to debar from Federal contracts firms that
showed a clear pattern or practice of serious OSHA violations.
The Federal government already enforces a number of
statutes and executive orders that hold Federal contractors to
high standards. For example, the Davis-Bacon Act requires
Federal construction contractors to pay their workers the
``prevailing wage'' in their locality, and Executive Order
11246 requires Federal contractors to establish affirmative
action policies in their workplaces. Yet there is no statute or
executive order in place to require that Federal contractors
serve as a model for other employers in assuring their
employees a safe and healthful workplace.
On the other hand, a number of studies have shown that the
Federal Government is currently paying millions of contract
dollars per year to companies that have demonstrated a clear
pattern and practice of exposing their employees to hazardous
and even life-threatening working conditions.
Senator Simon's amendment, the Federal Contractor Safety
and Health Enforcement Act of 1996, was designed to address
this problem. It would have given the Secretary of Labor the
discretion to debar firms that show a ``clear pattern and
practice'' of OSHA violations creating a ``substantial
probability of death or serious physical harm'' from receiving
Federal contracts or extensions or modifications of Federal
contracts for three years.
The Simon Amendment would also have given the Secretary
discretion to reduce or remove a debarment order for a firm
that demonstrates that it has complied with the rules that were
found to have been violated, that there has been a bona fide
change of ownership, or that there has been fraud or
misrepresentation by a charging party.
Under the amendment, the Secretary would have been allowed
to define ``pattern and practice'' through the administrative
rulemaking process. The Amendment would also have left to the
Secretary rulemaking discretion to determine the circumstances
under which a parent company should be debarred because of the
actions of a subsidiary.
The Simon Amendment would have helped to ensure that
employers who repeatedly disregard the health and safety of
their workers face serious economic consequences for their
failure to abide by the law. It also would have promoted
efficient and economical Federal procurement by removing
Federal support for firms that unfairly underbid their
competitors by skimping on health and safety for their workers.
Construction Safety
Although the Occupational Safety and Health Act originally
made a pledge to protect America's workers, S. 1423 fails to
adequately safeguard our workers and, in fact, weakens OSHA. It
most specifically fails the construction industry, which has
one of the most disturbing injury records. According to the
most recent figures available to the Occupational Safety and
Health Administration, there were 127,000 deaths in the
construction industry during 1994. Although construction
workers comprise only 6 percent of the workforce, they account
for 16 percent of all workplace fatalities. The injury rate for
construction workers is also higher than the national average,
resulting in more lost work days for construction workers than
workers in any other industry.
In past Congresses, the committee, led by Senator Dodd, has
looked closely into this issue. The committee held hearings on
one of the worst workplace accidents in OSHA's history--the
collapse of the L'Ambiance Plaza construction project which
killed 28 workers in 1987. It became clear that the
construction industry presented unique challenges to providing
a safe workplace. Specifically, construction is characterized
by changing conditions and multiple employers working on one
site with uncoordinated or nonexistent safety plans. OSHA, with
its focus on single employers, is simply unable to fully
address these unique problems.
In an effort to deal with this problem, Senator Dodd
offered an amendment to S. 1423 which provided specific
protections for construction workers by requiring internal
cooperation between contractors on each site to assure safer
working conditions and by establishing an Office of
Construction Safety and Health within the Occupational Safety
and Health Administration. Specifically, the amendment required
every construction project to create a coordinated safety and
health plan. To assure a safer worksite, plans would include a
hazard analysis, an appropriate construction process protocol,
and a method to respond to a request for an inspection of a
potentially imminent danger.
These provisions would have significantly improved the
safety conditions on construction sites. The internal
coordination of safety plans within a work site would have
enabled OSHA to spend more time preventing accidents. By
rejecting this amendment, without offering any alternative of
their own, the majority members of the Committee have indicated
that they place no special priority on the safety of our
nation's construction workers.
Conclusion
S. 1423 would be a major step backward in the nation's long
struggle to improve workplace safety and health. The bill's
fundamental premise--that we can improve the performance of
employers by making it less likely that they will be punished
for violating the law and endangering their employees--is
wrong. It is hard to imagine that the majority would support
this kind of approach with respect to any other activity that
endangers human life. The recent experience with ValuJet
Airlines, for example, would lead no one to conclude that
airline safety would be improved if we lessened the penalties
for unsafe airplane maintenance. No one seriously suggests that
we would improve drug safety by reducing the penalties for
companies caught producing unsafe drugs. Yet the majority's
prescription for workplace safety seems to boil down to the
following: ``Reduce the likelihood of catching companies that
violate the law, and when you do catch them, let them off with
a slap on the wrist.''
No matter how much the majority tries, it cannot make this
ill-conceived approach to ``reform'' resemble the Clinton
Administration's OSHA Reinvention initiative. The
Administration can speak for itself, and its veto message on S.
1423 speaks eloquently.
But someone must speak for the victims of unsafe
workplaces, and no one does that better than Mr. Ron Hayes, who
testified before the committee about the death of his son,
Patrick, who was killed by a grossly negligent employer. In the
section of this report headlined ``Enforcement,'' the majority
quotes Mr. Hayes, perhaps to create the impression that Mr.
Hayes supports this misguided legislation. In fact, Mr. Hayes
is an ardent opponent of S. 1423. In a letter to Chairman
Kassebaum, dated February 15, 1996, Mr. Hayes wrote:
I know you truly believe what you are proposing will
help deregulate some of our government's grip on us,
but in reality, in this instance, I think we will be
hurt more.
I think you know, I have had many problems with OSHA
and I will be the first to say, we need changes within
the agency, but I can't let the changes devastate the
millions of workers that need strong enforcement from
this agency. I do believe that accountability and some
hard changes would make this agency better, but to
completely tie the hands of this already weak agency is
not the answer.
Like Mr. Hayes, we oppose S. 1423 and urge our colleagues
to take a different approach to OSHA reform. Every day, 17
Americans die from work injuries and 137 die from occupational
lung diseases, occupational cancers, and other work-related
illnesses. Every week, 67,000 workers are disabled by work
injuries and illnesses. Most of these injuries and illnesses
are preventable.
We should support legislation only if it enhances the
safety and protection of the millions of men and women who get
up and go to work every day. S. 1423 does not.
Edward M. Kennedy.
Christopher J. Dodd.
Tom Harkin.
Paul Wellstone.
Claiborne Pell.
Paul Simon.
Barbara A. Mikulski.
X. Changes in Existing Law
In compliance with rule XXVI paragraph 12 of the Standing
Rules of the Senate, the following provides a print of the
Statute or the part of section thereof to be amended or
replaced (existing law proposed to be omitted is enclosed in
black brackets, new matter is printed in italic, existing law
in which no change is proposed is shown in roman):
* * * * * * *
OCCUPATIONAL SAFETY AND HEALTH REFORM AND REINVENTION ACT
* * * * * * *
TITLE 29, UNITED STATES CODE
* * * * * * *
Sec. 653. (c) In order to carry out the purpose of this Act
to encourage employers and employees in their efforts to reduce
the number of occupational safety and health hazards, an
employee participation program--
(1) in which employees participate;
(2) which exists for the purpose, in whole or in
part, of dealing with employees concerning safe and
healthful working conditions; and
(3) which does not have, claim, or seek authority to
negotiate or enter into collective bargaining
agreements with the employer or to amend existing
collective bargaining agreements between the employer
and any labor organization, shall not constitute a
``labor organization'' for purposes of section 8(a)(2)
of the National Labor Relations Act (29 U.S.C.
158(a)(2)) or a representative for purposes of sections
1 and 2 of the Railway Labor Act (45 U.S.C. 151 and
151a). Nothing in this section shall be construed to
affect employer obligations under section 8(a)(5) of
the National Labor Relations Act (29 U.S.C. 158(a)(5)
to deal with a certified or recognized employee
representative with respect to health and safety
matters to the extent otherwise required by law.
* * * * * * *
Sec. 657. [(g)] (h) * * *
* * * * * * *
(g)(1) Except as provided in paragraph (2), the Secretary
shall not conduct routine inspections of, or enforce any
standard, rule, regulation, or order under this Act with
respect to--
(A) any person who is engaged in a farming operation
that does not maintain a temporary labor camp and that
employs 10 or fewer employees; or
(B) any employer of not more than 10 employees if
such employer is included within a category of
employers having an occupational injury or a lost
workday case rate (determined under the Standard
Industrial Classification Code for which such data are
published) that is less than the national average rate
as most recently published by the Secretary acting
through the Bureau of Labor Statistics under section
24.
(2) In the case of persons who are not engaged in farming
operations, paragraph (1) shall not be construed to prevent the
Secretary from--
(A) providing consultations, technical assistance,
and educational and training services and conducting
surveys and studies under this Act;
(B) conducting inspections or investigations in
response to complaints of employees, issuing citations
for violations of this Act found during such
inspections, and assessing a penalty for violations
that are not corrected within a reasonable abatement
period;
(C) taking any action authorized by this Act with
respect to imminent dangers;
(D) taking any action authorized by this Act with
respect to a report of an employment accident that is
fatal to at least one employee or that results in the
hospitalization of at least three employees, and taking
any action pursuant to an investigation conducted with
respect to such report; and
(E) taking any action authorized by this Act with
respect to complaints of discrimination against
employees for exercising their rights under this Act.
* * * * * * *
[(f) Request for inspection by employees or representative
of employees; grounds; procedure; determination of request;
notification of Secretary or representative prior to or during
any inspection of violations; procedure for review of refusal
by representative of Secretary to issue citation for alleged
violations.
[(1) Any employees or representative of employees who
believe that a violation of a safety or health standard
exists that threatens physical harm, or that an
imminent danger exists, may request an inspection by
giving notice to the Secretary or his authorized
representative of such violation or danger. Any such
notice shall be reduced to writing, shall set forth
with reasonable particularity the grounds for the
notice, and shall be signed by the employees or
representative of employees, and a copy shall be
provided the employer or his agent no later than at the
time of inspection, except that, upon the request of
the person giving such notice, his name and the names
of individual employees referred to therein shall not
appear in such copy or on any record published,
released, or made available pursuant to subsection (g)
of this section. If upon receipt of such notification
the Secretary determines there are reasonable grounds
to believe that such violation or danger exists, he
shall make a special inspection in accordance with the
provisions of this section as soon as practicable, to
determine if such violation or danger exists. If the
Secretary determines there are no reasonable grounds to
believe that a violation or danger exists he shall
notify the employees or representative of the employees
in writing of such determination.
[(2) Prior to or during any inspection of a
workplace, any employees or representative of employees
employed in such workplace may notify the Secretary or
any representative of the Secretary responsible for
conducting the inspection, in writing, of any violation
of this Act which they have reason to believe exists in
such workplace. The Secretary shall, by regulation,
establish procedures for informal review of any refusal
by a representative of the Secretary to issue a
citation with respect to any such alleged violation and
shall furnish the employees or representatives of
employees requesting such review a written statement of
the reasons for the Secretary's final disposition of
the case.]
(f)(1)(A) An employee or representative of an employee who
believes that a violation of a safety or health standard exists
that threatens physical harm, or that an imminent danger
exists, may request an inspection by providing notice of the
violation or danger to the Secretary or an authorized
representative of the Secretary.
(B) Notice under subparagraph (A) shall be reduced to
writing, shall set forth with reasonable particularity the
grounds for the notice, and shall state whether the alleged
violation or danger has been brought to the attention of the
employer and if so, whether the employer has refused to take
any action to correct the alleged violation or danger.
(C)(i) The notice under subparagraph (A) shall be signed by
the employees or representative of employees and a copy shall
be provided to the employer or the agent of the employer not
later than the time of arrival of an occupational safety and
health agency inspector to conduct the inspection.
(ii) Upon the request of the person providing the notice
under subparagraph (A), the name of the person and the names of
individual employees referred to in the notice shall not appear
in the copy of the notice or on any record published, released,
or made available pursuant to subsection (i), except that the
Secretary may disclose this information during prehearing
discovery in a contested case.
(D) The secretary may only make an inspection under this
section if such an inspection is requested by an employee or a
representative of employees.
(E)(i) If, upon receipt of the notice under subparagraph
(A), the Secretary determines that there are reasonable grounds
to believe the violation or danger exists, the Secretary may
conduct a special inspection in accordance with this section as
soon as practicable. Except as provided in clause (ii), the
special inspection shall be conducted for the limited purpose
of determining whether the violation or danger exists.
(ii) During a special inspection described in clause (i),
the Secretary may take appropriate actions with respect to
health and safety violations that are not within the scope of
the inspection and that are observed by the Secretary or an
authorized representative of the Secretary during the
inspection.
(2) If the Secretary determines either before, or as a
result of, an inspection that there are not reasonable grounds
to believe a violation or danger exists, the secretary shall
notify the complaining employee or employee representative of
the determination and, upon request by the employee or employee
representative, shall provide a written statement of the
reasons for the Secretary's final disposition of the case.
(3) The Secretary or an authorized representative of the
Secretary may, as a method of instigating an alleged violation
or danger under this section, attempt, if feasible, to contact
an employer by telephone, facsimile, or other appropriate
methods to determine whether--
(A) the employer has taken corrective actions with
respect to the alleged violation or danger; or
(B) there are reasonable grounds to believe that a
hazard exists.
(4) The Secretary is not required to conduct a special
inspection under this subsection if the Secretary determines
that a request for a special inspection was made for reasons
other than the safety and health of the employees of an
employer or that the employees of an employer are not at risk.
* * * * * * *
SEC. 8A. HEALTH AND SAFETY REINVENTION INITIATIVES.
(a) In General.--The Secretary shall establish a program to
encourage voluntary employer and employee efforts to provide
safe and healthful working conditions.
(b) Exemption.--In establishing a program under subsection
(a), the Secretary shall, in accordance with subsection (c),
provide an exemption from all safety and health inspections and
investigations for a place of employment maintained by an
employer participating in such program, except that this
subsection shall not apply to inspections and investigations
conducted for the purpose of--
(1) determining the cause of a workplace accident
that resulted in the death of one or more employees or
the hospitalization of three or more employees; or
(2) responding to a request for an inspection
pursuant to section 8(f)(1).
(c) Exemption Requirements.--To qualify for an exemption
under subsection (b), an employer shall provide to the
Secretary evidence that, with respect to the employer--
(1) during the preceding year, the place of
employment or conditions of employment have been
reviewed or inspected under--
(A) a consultation program provided by
recipients of grants under section 7(c)(1) or
23(g);
(B) a certification or consultation program
provided by an insurance carrier or other
private business entity pursuant to a State
program, law, or regulation if the person
conducting the review or inspection meets
standards established by, and is certified by,
the Secretary; or
(C) a workplace consultation program provided
by a qualified person certified by the
Secretary for purposes of providing such
consultations,
that includes a means of ensuring that serious hazards
identified in the consultation are corrected within an
appropriate time and that, where applicable, permits an
employee (of the employer) who is a representative of a health
and safety employee participation program to accompany a
consultant during a workplace inspection; or
(2) the place of employment has an exemplary safety
and health record and the employer maintains a safety
and health program for the workplace that includes--
(A) procedures for assessing hazards to the
employer's employees that are inherent to the
employer's operations or business;
(B) procedures for correcting or controlling
such hazards in a timely manner based upon the
severity of the hazard; and
(C) an employee participation program that,
at a minimum--
(i) includes regular consultation
between the employer and nonsupervisory
employees regarding safety and health
issues;
(ii) includes the opportunity for
nonsupervisory employees to make
recommendations regarding hazards in
the workplace and to receive responses
or to implement improvements in
response to such recommendations; and
(iii) ensures that participating
nonsupervisory employees have training
or expertise on safety and health
issues consistent with the
responsibilities of such employees.
(d) Model Program.--The Secretary shall publish and make
available to employers a model safety and health program that
if completed by the employer shall be considered to meet the
requirements for an exemption under this section.
(e) Certification.--The Secretary may require that, to
claim the exemption under subsection (b), an employer provide
certification to the Secretary and notice to the employer's
employees of such eligibility. The Secretary may conduct random
audits of the records of employers to ensure against
falsification of the records by the employers.
(f) Records.--Records of a safety and health inspection,
audit, or review that is conducted by an employer and that is
not conducted under a program described in subsection (a) shall
not be required to be disclosed to the Secretary unless--
(1) the Secretary is conducting an investigation
involving a fatality or a serious injury of an employee
of such employer; or
(2) such employer has not taken measures to address
serious hazards in the workplace of the employer
identified during such inspection, audit, or review.
* * * * * * *
Sec. 652. * * *
* * * * * * *
(15) The term ``exemplary safety and health record''
means such record as the Secretary shall annually
determine for each industry. Such record shall include
employers that have had, in the most recent reporting
period, no employee death caused by occupational injury
and fewer lost workdays due to occupational injury and
illness than the average for the industry of which the
employer is a part.
* * * * * * *
Sec. 658. (d) No citation may be issued under subsection
(a) to an employer unless the employer knew, or with the
exercise of reasonable diligence would have known, of the
presence of the alleged violation. No citation shall be issued
under subsection (a) to an employer for an alleged violation of
section 5, any standard, rule, or order promulgated pursuant to
section 6, any other regulation promulgated under this Act, or
any other occupational safety and health standard, if such
employer demonstrates that--
(1) employees of such employer have been provided
with the proper training and equipment to prevent such
a violation;
(2) work rules designed to prevent such a violation
have been established and adequately communicated to
employees by such employer and the employer has taken
reasonable measures to discipline employees when
violations of such work rules have been discovered;
(3) the failure of employees to observe work rules
led to the violation; and
(4) reasonable steps have been taken by such employer
to discover any such violation.
(e) A citation issued under subsection (a) to an employer
who violates the requirements of section 5, of any standard,
rule, or order promulgated pursuant to section 6, or any other
regulation promulgated under this Act shall be vacated if such
employer demonstrates that employees of such employer were
protected by alternative methods equally or more protective of
he employee's safety and health than those required by such
standard, rule, order, or regulation in the factual
circumstances underlying the citation.
(f) Subsections (d) and (e) shall not be construed to
eliminate or modify other defenses that may exist to any
citation.
(g) The Secretary shall not establish any quota for any
subordinate within the Occupational Safety and Health
Administration (including any regional director, area director,
supervisor, or inspector) with respect to the number of
inspections conducted, citations issued, or penalties
collected.
* * * * * * *
Sec. 658. [(a) Authority to issue; grounds; contents;
notice in lieu of citation for de minimis violations.
[If, upon inspection or investigation, the Secretary or his
authorized representative believes that an employer has
violated a requirement of section 5 of this Act, of any
standard, rule or order promulgated pursuant to section 6 of
this Act, or of any regulations prescribed pursuant to this
Act, he shall with reasonable promptness issue a citation to
the employer. Each citation shall be in writing and shall
describe with particularity the nature of the violation,
including a reference to the provision of the Act, standard,
rule, regulation, or order alleged to have been violated. In
addition, the citation shall fix a reasonable time for the
abatement of the violation. The Secretary may prescribe
procedures for the issuance of a notice in lieu of a citation
with respect to de minimis violations which have no direct or
immediate relationship to safety or health.]
(a)(1) Except as provided in paragraph (2), if, upon
inspection or investigation, the Secretary or an authorized
representative of the Secretary believes that an employer has
violated a requirement of section 5, of any regulation, rule,
or order promulgated pursuant to section 6, or of any
regulations prescribed pursuant to this Act, the Secretary may
with reasonable promptness issue a citation to the employer.
Each citation shall be in writing and shall describe with
particularity the nature of the violation, including a
reference to the provision of the Act, regulation, rule, or
order alleged to have been violated. The citation shall fix a
reasonable time for the abatement of the violation.
(2) The Secretary or the authorized representative of the
Secretary--
(A) may issue a warning in lieu of a citation with
respect to a violation that has no significant
relationship to employee safety or health and
(B) may issue a warning in lieu of a citation in
cases in which an employer in good faith acts promptly
to abate a violation if the violation is not a willful
or repeat violation.
(3) Nothing in this Act shall be construed as prohibiting
the Secretary or the authorized representative of the Secretary
from providing technical or compliance assistance to an
employer in correcting a violation discovered during an
inspection or investigation under this Act without issuing a
citation.
* * * * * * *
Sec. 666(c) Citation for violation determined not serious.
Any employer who has received a citation for a violation of the
requirements of section 5 of this Act, of any standard, rule,
or order promulgated pursuant to section 6 of this Act, or of
regulations prescribed pursuant to this Act, and such violation
is specifically determined not to be of a serious nature, may
be assessed a civil penalty [up to $7,000] not more than $100
for each such violation.
* * * * * * *
[[(h)](i) Violation of posting requirement. Any employer
who violates any of the posting requirements, as prescribed
under the provisions of this Act shall be assessed a civil
penalty of up to $7,000 for each violation.]
[[(i)](j) Authority of Commission to assess civil
penalties. The Commission shall have authority to assess all
civil penalties provided in this section, giving due
consideration to the appropriateness of the penalty with
respect to the size of the business of the employer being
charged, the gravity of the violation, the good faith of the
employer, and the history of previous violations.]
(i) Any employer who violates any of the posting or
paperwork requirements other than serious or fraudulent
reporting requirement deficiencies, prescribed under this Act
shall not be assessed a civil penalty for such violation unless
it is determined that the employer has violated subsection (a)
or (d) with respect to such posting or paperwork requirements.
(j)(1) The Commission shall have authority to assess all
civil penalties under this section. In assessing a penalty
under this section, the Commission shall give due consideration
to the appropriateness of the penalty with respect to--
(A) the size of the employer;
(B) the number of employees exposed to the violation;
(C) the likely severity of any injuries directly
resulting from such violation;
(D) the probability that the violation could result
in injury or illness;
(E) the employer's good faith in correcting the
violation after the violation has been identified;
(F) the extent to which employee misconduct was
responsible for the violation;
(G) the effect of the penalty on the employer's
ability to stay in business;
(H) the history of previous violations; and
(I) whether the violation is the sole result of the
failure to meet a requirement, under this Act or
prescribed by regulation, with respect to the posting
of notices, the preparation or maintenance of
occupational safety and health records, or the
preparation, maintenance, or submission of any written
information.
(2)(A) A penalty assessed under this section shall be
reduced by at least 25 percent in any case in which the
employer--
(i) maintains a safety and health program described
in section 8A(a) of the worksite at which the violation
(for which the penalty was assessed) took place; or
(ii) demonstrates that the worksite at which the
violation (for which the penalty was assessed) took
place has an exemplary safety record.
If the employer maintains a program described in clause (i) and
has the record described in clause (ii), the penalty shall be
reduced by at least 50 percent.
(B) A penalty assessed against an employer for a violation
other than a violation that--
(i) has been previously cited by the Secretary;
(ii) creates an imminent danger;
(iii) has caused death; or
(iv) has caused a serious incident,
shall be reduced by at least 75 percent if the worksite at
which such violation occurred has been reviewed or inspected
under a program described in section 8A(c)(1) during the 1-year
period before the date of the citation for such violation, and
such employer has complied with recommendations to bring such
employer into compliance within a reasonable period of time.
* * * * * * *
Sec. 670 [(c) The] (c)1 The Secretary, in consultation with
the Secretary of Health, Education, and Welfare, shall [(1)
provide] (A) provide for the establishment and supervision of
programs for the education and training of employers and
employees in the recognition, avoidance, and prevention of
unsafe or unhealthful working conditions in employments covered
by this Act, and [(2) consult] (B) consult with and advise
employers and employees, and organizations representing
employers and employees as to effective means of preventing
occupational injuries and illnesses.
(2)(A) The Secretary shall, through the authority granted
under section 7(c) and paragraph (1), enter into cooperative
agreements with States for the provision of consultation
services by such States to employers concerning the provision
of safe and healthful working conditions. A State that has a
plan approved under section 18 shall be eligible to enter into
a cooperative agreement under this paragraph only if such plan
does not include provisions for federally funded consultation
to employers.
(B)(i) Except as provided in clause (ii), the Secretary
shall reimburse a State that enters into a cooperative
agreement under subparagraph (A) in an amount that equals 90
percent of the costs incurred by the State under such
agreement.
(ii) A State shall be fully reimbursed by the
Secretary for--
(I) training approved by the Secretary for
State staff operating under a cooperative
agreement; and
(II) specified out-of-State travel expenses
incurred by such staff.
(iii) A reimbursement paid to a State under this
subparagraph shall be limited to costs incurred by such
State for the provision of consultation services under
this paragraph and the costs described in the clause
(ii).
(C) Notwithstanding any other provision of law, at least 15
percent of the total amount of funds appropriated for the
Occupational Safety and Health Administration for a fiscal year
shall be used for education, consultation, and outreach
efforts.
* * * * * * *