[Senate Report 106-202]
[From the U.S. Government Publishing Office]
Calendar No. 353
106th Congress Report
SENATE
1st Session 106-202
======================================================================
SAFETY ADVANCEMENT FOR EMPLOYEES ACT OF 1999
_______
October 28, 1999.--Ordered to be printed
_______
Mr. Jeffords, from the Committee on Health, Education, Labor, and
Pensions, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany S. 385]
The Committee on Health, Education, Labor, and Pensions, to
which was referred the bill (S. 385) to amend the Occupational
Safety and Health Act of 1970 to further improve the safety and
health of working environments, 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. Introduction.....................................................2
II. Summary and purpose..............................................3
III. Legislative history and committee action.........................3
IV. Committee views..................................................7
V. Conclusion......................................................28
VI. Section-by-section analysis.....................................29
VII. Application of law to legislative branch........................31
VIII.Regulatory impact statement.....................................31
IX. Cost estimate...................................................32
X. Minority views..................................................36
XI. Executive agency comments on S. 385.............................61
XII. Changes in existing law.........................................65
I. Introduction
On any given day in the United States, 17 workers will die
and 18,600 workers will be injured on the job.1
Safety inspections by the government are rare, and
consultations with employers are even rarer. To stop the
injuries and deaths suffered every day by the American worker,
a system must be put in place to encourage the good employers
to get safe voluntarily while simultaneously targeting and
punishing the thin layer of bad work sites. This is the system
promoted by the Safety Advancement for Employees (``SAFE'') Act
(S. 385), and enacting it will save workers lives.
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\1\ Anne Scott, A Kinder, gentler, OSHA?, Bus. Rec. (Des Moines),
April 7, 1997, at 10.
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The Occupational Safety and Health Administration, or OSHA,
is the government agency responsible for regulating safety laws
in America. The way that OSHA is supposed to work is to provide
helpful assistance to the overwhelming number of employers who
are actively pursuing safer workplaces. Simultaneously, OSHA
should be effectively targeting those employers who are
willfully disregarding safety laws, inspecting them, fining
them, and then following up to make sure that bad practices are
stopped before accidents occur. But what everyone knows is that
this is not what is actually happening. What is happening is
that OSHA lumps all employers together--both the good and the
bad--treats them the same, and tries to inspect and fine them
all, no matter how small or ridiculous the violation.
Meanwhile, serious and potentially deadly practices go
uninspected and unstopped. The result is disastrous, and
unfortunately, is often fatal.
As reported in the Associated Press, three quarters of work
sites in the United States that suffered serious accidents in
1994 and 1995 had never been inspected by OSHA during this
decade.2 The report also showed that even OSHA
officials acknowledge that their inspectors ``do not get to a
lion's share of lethal sites until after accidents occur.''
3 Because it takes OSHA over 167 years to reach
every work site in this country,4 the fact is that
OSHA neither helps those good faith employers who want to
achieve compliance with safety laws, nor effectively deters bad
employers from breaking the law.
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\2\ The Associated Press, OSHA Failed to Inspect Committee of
Workplaces Where Workers Died in '94, Asheville Citizen Times,
September 5, 1995, at 1A.
\3\ Ibid.
\4\ AFL-CIO, Death on the Job: The Toll of Neglect, Apr. 1997, at
3.
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This is why the committee believes that passing legislation
like the SAFE Act is so vitally important. It will effectively
add thousands of highly-trained safety and health professionals
to the job of inspecting work sites all over the country where
OSHA hasn't even been able to make a dent, while encouraging
employers to get into compliance voluntarily. At the same time,
it would allow OSHA to use its resources to target and punish
serious safety offenders.
The SAFE Act's proactive approach to achieving safer
workplaces is revolutionary because it empowers both OSHA and
employers who truly seek safety and health solutions. The
result will mean vastly improved safety for America's workers.
II. Summary and Purpose
The Clinton administration has acknowledged that OSHA's
adversarial, command and control approach to worker safety
hasn't worked, and it has responded by pledging a ``reinvented
government'' that partners with employers in the effort to
improve occupational safety and health. Vice President Gore has
made strong statements that ``OSHA doesn't work well enough,''
and that OSHA should ``hire third parties such as private
inspection companies'' to perform inspections.5 He
has advocated a new approach at OSHA that would parallel the
accountant's role on behalf of small businesses at tax time.
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\5\ Albert Gore, The Gore Report on Reinventing Government
(Washington, D.C. September 1993), at 62-63.
No army of federal auditors descends upon American
businesses to audit their books; the government forces
them to have the job done themselves. In the same way,
no army of OSHA inspectors need descend upon corporate
America.6
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\6\ See id. at 62.
In fact, the Vice President's conclusions are at the heart
of the SAFE Act's partnership approach. The SAFE Act will
encourage employers to voluntarily hire third party consultants
to audit their workplaces for compliance with OSHA and safety
in general. These consultants must be qualified by OSHA as
legitimate safety consultants and will work with employers on
an ongoing basis to ensure that the employer is in compliance
with OSHA regulations. Once the employer is in compliance, the
consultant will issue him a ``certificate of compliance,''
which will exempt him from civil penalties for one year.
However, at all times and under all circumstances, OSHA remains
free to inspect those work sites, and if that employer is not
acting in ``good faith'' as determined by OSHA, that employer
is removed from the program.
The SAFE Act's third party consultation provision codifies
the Vice President's intent. It will result in tens of
thousands of employers, perhaps more, getting expert safety
consultations. It will allow OSHA to target its enforcement
resources where they are most needed, and it preserves OSHA's
power to inspect any workplace and order abatement as it sees
fit.
III. Legislative History and Committee Action
On February 6, 1999, Senator Enzi introduced S. 385, the
Safety Advancement for Employees (SAFE) Act of 1999.
On March 4, 1999, the Senate Subcommittee on Employment,
Safety and Training held a hearing on the SAFE Act entitled,
``The New SAFE Act: Using Third Party Consultations and
Encouraging Safety Programs to Make Workplaces Safer'' (S. Hrg.
106-37). The following individuals provided testimony:
The Honorable Charles N. Jeffress, Assistant Secretary,
Occupational Safety and Health Administration,
Washington, D.C.
Harry C. Alford, President and C.E.O. of the National Black
Chamber of Commerce, Inc., Washington, D.C.
Robert J. Cornell, Director of Dealer Operations, Director of
Environmental Regulations, Chairman of the Safety
Committee, Mon Valley Petroleum, McKeesport, PA
Rosyln C. Wade, Assistant Commissioner, Minnesota Department of
Labor and Industry, St. Paul, MN
Curtis McGuire, President, Redlegs Lumper Service, Columbus, OH
Margaret Seminario, Director of Occupational Safety and Health,
AFL-CIO, Washington, D.C.
Edwin J. Folke, Jr., Partner, Jackson, Lewis, Shnitzler and
Krupman, Greenville, SC
Scott Hobbs, President, Hobbs, Inc., New Canaan, CT
On April 13, 1999, the Subcommittee on Employment, Safety
and Training had a second hearing on the SAFE Act entitled,
``Accident Prevention, the Focus of SAFE'' (S. Hrg. 106-53).
The following individuals provided testimony:
Ron Hayes, Founder and Director, Families In Grief Hold
Together (FIGHT) Project, Fairhope, AL
Charles LeCroy, Tallahassee, FL
Joanne Royce, Director, Program on Worker Health and Safety,
Government Accountability Project (GAP), Washington,
D.C.
William F. Alcarese, Baltimore, MD
On April 29, 1999, the Senate Committee on Health,
Education, Labor, and Pensions met in Executive Session to
consider Senate bill 385, the Safety Advancement for Employees
Act. The committee voted on the following amendments:
Senator Enzi offered an amendment in the form of a
substitute making technical corrections to S. 385. The
amendment was accepted by voice vote and was used as the
underlying vehicle.
Senator Harkin offered an amendment to require Federal
contracts debarment for persons who violate the Act's
provisions. The amendment failed (8-10) on a rollcall vote:
YEAS NAYS
Kennedy Gregg
Dodd Frist
Harkin DeWine
Mikulski Enzi
Bingaman Hutchinson
Wellstone Collins
Murray Brownback
Reed Hagel
Sessions
Jeffords
Senator Wellstone offered an amendment to protect employees
against reprisals from employers based on certain employee
conduct concerning safe and healthy working conditions. The
amendment failed (8-10) on a rollcall vote:
YEAS NAYS
Kennedy Gregg
Dodd Frist
Harkin DeWine
Mikulski Enzi
Bingaman Hutchinson
Wellstone Collins
Murray Brownback
Reed Hagel
Sessions
Jeffords
Senator Wellstone offered an amendment to modify
provisions relating to citations and penalties. The amendment
failed (9-9) on a rollcall vote:
YEAS NAYS
Kennedy Gregg
Dodd Frist
Harkin DeWine
Mikulski Enzi
Bingaman Hutchinson
Wellstone Collins
Murray Brownback
Reed Hagel
Jeffords Sessions
Senator Kennedy offered an amendment to strike provisions
relating to exemptions from civil penalties for compliance with
a certificate of compliance. The amendment failed (8-10) on a
rollcall vote:
YEAS NAYS
Kennedy Gregg
Dodd Frist
Harkin DeWine
Mikulski Enzi
Bingaman Hutchinson
Wellstone Collins
Murray Brownback
Reed Hagel
Sessions
Jeffords
Senator Kennedy offered an amendment to clarify that the
civil penalty exemption does not apply to violations that were
willful, repeat, or likely to cause serious harm to employees.
The amendment failed (8-10) on a rollcall vote:
YEAS NAYS
Kennedy Gregg
Dodd Frist
Harkin DeWine
Mikulski Enzi
Bingaman Hutchinson
Wellstone Collins
Murray Brownback
Reed Hagel
Sessions
Jeffords
Senator Kennedy offered an amendment to limit the exemption
of an employer from certain civil penalties based on the
employer's receipt of a certificate of compliance. The
amendment failed (8-10) on a rollcall vote:
YEAS NAYS
Kennedy Gregg
Dodd Frist
Harkin DeWine
Mikulski Enzi
Bingaman Hutchinson
Wellstone Collins
Murray Brownback
Reed Hagel
Sessions
Jeffords
Senator Wellstone offered an amendment to protect the
safety and health of State and local employees. The amendment
failed (9-9) on a rollcall vote:
YEAS NAYS
Kennedy Gregg
Dodd Frist
Harkin DeWine
Mikulski Enzi
Bingaman Hutchinson
Wellstone Collins
Murray Brownback
Reed Hagel
Jeffords Sessions
Senator Reed offered an amendment to permit the expenditure
of funds to complete certain reports concerning accidents that
result in the death of minor employees engaged in farming
operations. The amendment failed (9-9) on a rollcall vote:
YEAS NAYS
Kennedy Gregg
Dodd Frist
Harkin DeWine
Mikulski Enzi
Bingaman Hutchinson
Wellstone Brownback
Murray Hagel
Reed Sessions
Collins Jeffords
Senator Reed offered an amendment to provide for a private
right of action and criminal penalties for certain conduct
during a third party consultation. The amendment failed (8-10)
on a rollcall vote:
YEAS NAYS
Kennedy Gregg
Dodd Frist
Harkin DeWine
Mikulski Enzi
Bingaman Hutchinson
Wellstone Collins
Murray Brownback
Reed Hagel
Sessions
Jeffords
Senator Brownback offered an amendment to ensure that
individuals with expertise in workplace safety and health are
eligible to be certified safety and health consultants. The
amendment was accepted by voice vote.
Senator Wellstone offered an amendment to provide for
coverage of employees of the Federal Government. The amendment
failed on a voice vote.
Senator Murray offered an amendment to provide flexibility
in screening certain complaints while protecting fundamental
worker rights. The amendment failed (8-10) on a rollcall vote:
YEAS NAYS
Kennedy Gregg
Dodd Frist
Harkin DeWine
Mikulski Enzi
Bingaman Hutchinson
Wellstone Collins
Murray Brownback
Reed Hagel
Sessions
Jeffords
The committee then voted (10-8) to report the bill, as
amended, on a rollcall vote:
YEAS NAYS
Gregg Kennedy
Frist Dodd
DeWine Harkin
Enzi Mikulski
Hutchinson Bingaman
Collins Wellstone
Brownback Murray
Hagel Reed
Sessions
Jeffords
IV. Committee Views
third party consultations
OSHA leaves small businesses stranded
When OSHA was created by Congress in 1970, its mandate was
to assure for all workers safe and healthful working conditions
``by encouraging employers and employees in their efforts to
reduce the number of occupational safety and health hazards at
their places of employment.'' \7\ The agency, however, has
never seriously attempted to ``encourag[e] employers and
employees in their efforts'' \8\ to create safe workplaces.
Instead, OSHA operates according to an adversarial, command and
control mentality which neither encourages good faith employers
nor effectively deters bad faith employers. The result is that
the majority of small business people who care about worker
safety are left stranded without needed compliance help while
those employers who do not care simply ``play the odds'' that
they will never be inspected.
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\7\ Occupational Safety and Health Act, 29 U.S.C. Sec. 651(b)(1)
(1970).
\8\ Id. (Emphasis added.)
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OSHA has estimated that 95 percent of American employers
``are doing their level best to try to voluntarily comply with
OSHA.'' \9\ On March 4, 1999, the Subcommittee on Employment,
Safety and Training held the first of two hearings on the SAFE
Act to highlight how so many of these good faith employers want
the safest of workplaces, but are drowning in over 1,200 pages
of highly technical safety regulations promulgated by OSHA. All
of the employers who came to the hearing testified that they
were left on their own to comply with every one of the
thousands of rules without helpful assistance from OSHA, and
that passing the SAFE Act would give them the tools they need
to get safer work sites. As stated by Harry C. Alford,
President & CEO of the National Black Chamber of Commerce,
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\9\ Ellen Byerrum, Decline in Inspection Numbers Prompts Renewed
Enforcement Emphasis, Says OSHA, (BNA), No. 38, at A-8 (February 26
1997). Author quotes Deputy Assistant Secretary Frank Strasheim who
estimates that ``probably 95 percent of the employers in the country do
their level best to try to voluntarily comply with OSHA.''
At the White House Conference on Small Business,
1995, Vice President Gore spoke and assured the
delegates that OSHA, under the reinvented government,
would work as a partner with employers. ``There is
going to be much less paper work and far fewer fines.
We want you in compliance and the fastest, simplest and
least painful way to get you there is how we want to do
it.'' The Vice President said OSHA inspectors would be
trained to work with employers as partners. * * * The
SAFE Act is the proper vehicle to achieve the ends
stated by the Vice President.\10\
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\10\ The New SAFE Act, Hearing on S. 385 Before the Senate Subcomm.
on Employment, Safety and Training, 106th Cong., 1st Sess (1999)
[hereinafter The New SAFE Act Hearing] (statement of Harry C. Alford,
Jr., Chairman and C.E.O. of the National Black Chamber of Commerce,
Inc.) at 41.
The sheer volume of OSHA regulations that even the smallest
of businesses are expected to read, understand and implement is
staggering--comprising of more pages than Gone With the Wind,
the Canterbury Tales, or even the Old and New Testaments of the
King James Version of the Bible combined. In fact, many of the
regulations bear no relationship to safety at the workplace.
Others are so vague that discerning one correct interpretation
is impossible. The result is that employers are left to fend
for themselves, wasting valuable time and money misinterpreting
regulations and making work site improvements that are either
not required by OSHA or related to workplace safety, or both.
Edwin Folke, former Chairman of the Occupational Safety and
Health Review Commission and current partner in the law firm of
Jackson, Lewis, Schnitzler and Krupman, testified that one
major advantage of the SAFE Act was that it would help
particularly the smallest of employers wade through complex
regulations with professional assistance to improve on-the-job
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safety and health.
Most employers strive to provide a safe and healthful
workplace. However, many employers, especially small
businesses, just do not have--and most likely will
never be able to achieve--the scientific expertise
necessary to address every conceivable workplace hazard
that might exist. We must also recognize that many
small employers will never have the personnel, nor the
financial ability, to implement a comprehensive safety
and health program that you would expect to see at a
Fortune 500 company. However, encouraging an employer
through modest incentives to voluntarily work with a
qualified and certified safety and health professional
to develop and implement a safety and health program,
which is tailored to meet that employer's unique needs,
seems appropriate.\11\
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\11\ See id. at 74 (statement of Edwin G. Folke, Jr. Partner,
Jackson, Lewis, Schnitzler and Krupman).
In fact, many small employers have responded to the
overwhelming regulatory burden by hiring an outside, private
safety professional to audit the workplace for safety hazards
and to find out how to implement workable abatement strategies.
The results have been overwhelmingly successful. Studies have
demonstrated the tangible results that flow from such safety
consultations, including sizable reductions in worker injury
and illness rates.\12\ The testimony of Scott Hobbs lends
further support to this conclusion:
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\12\ National Association of Manufacturers, OSHA Reform Survey:
Summary of Findings, 1996 (A 1996 survey of 191 companies concluded
that the predominant theme of the respondents' occupational success
stories was that employee safety and health was improved by the
company's own initiatives--including employing safety consultants to
anticipate and correct OSHA problems--rather than anything done by
OSHA.); James L. Loud, Are your safety inspections a waste of time?,
Professional Safety, January 1989, at 32 (A 1981 survey of 143 Nebraska
firms showed that those conducting safety audits averaged nearly 40
percent fewer accidents than firms without an established audit
program.).
The use of third-party auditors to improve workplace
safety and health is not a radical or untested new
idea. It is a common practice in the construction
industry. In fact, 80 of [the Associated General
Contractors' (AGC)] 99 chapters across the country
provide some form of safety and health audit for AGC
members. These audits are a proven means of improving
safety and health, especially for small and medium-
sized contractors who otherwise would receive no formal
safety and health information. In a survey of AGC
members, several contractors report their injury and
illness rates dropping more than 20% after a third-
party safety audit.\13\
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\13\ The New SAFE Act, Hearing, supra note 10, at 86 (statement of
Scott Hobbs, President of Hobbs, Inc.).
The statistics illustrating the importance of safety
consultants in the workplace parallel Vice President Gore's
call for OSHA to use private safety professionals more while
simultaneously requiring less paperwork and issuing fewer
fines. In his Report on Reinventing Government, the Vice
President concluded that employers should be encouraged by OSHA
to use private safety professionals as a way to vastly improve
the health and safety of American workers ``without bankrupting
the federal treasury.'' \14\ Such an approach would ``ensure
that all workplaces are regularly inspected, without hiring
thousands of new employees.'' \15\ By establishing incentives
designed to encourage workplaces to comply, ``[w]orksites with
good health, safety, and compliance records would be allowed to
report less frequently to the Labor Department, to undergo
fewer audits, and to submit less paperwork.'' \16\
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\14\ Gore, supra note 5, at 62.
\15\ Id. at 62.
\16\ Id. at 63.
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Following the Vice President's lead, even OSHA has
recognized the significant value of the third party auditor; it
has recommended to employers seeking help from a State OSHA
consultation service that in the event of a backlog, the
employer ``may be able to obtain similar services from [its]
insurance carrier or private consultant in a more timely
fashion.'' 17 The General Accounting Office (GAO)
has also concluded that an important way for OSHA to ``stretch
the existing inspection workforce'' would be to allow
``consultations by OSHA-certified private sector safety and
health specialists as substitutes for targeted inspections.''
18
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\17\ Occupational Safety and Health Reform and Reinvention Act,
Hearing on S. 1423 Before the Senate Comm. on Labor and Human
Resources, 104th Cong., 1st Sess. 99 (1995) [Memorandum from John B.
Miles, Jr., Director, Directorate of Compliance Programs and Nelson
Reyneri, Director, Office of Reinvention, to the OSHA Regional
Administrators (May 2, 1995) (emphasis added).
\18\ U.S. General Accounting Office, Options for Improving Safety
and Health in the Workplace (Washington, D.C.:GAO/HRD-90-66BR, 1990),
at 15.
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The value of third party audits in improving safety and
health at work sites was widely supported at the two hearings
on the SAFE Act held by the Subcommittee on Employment, Safety
and Training. Three of the witnesses at the March 4, 1999,
subcommittee hearing had used a private safety consultant and
testified as to the overwhelmingly positive results. In each
instance, the small business owner expended substantial amounts
of money to hire a private safety professional and fix the
identified problems, and the result was that each employer
experienced significant reductions in their worker injury and
illness rates following the involvement of the safety
professional. According to Bob Cornell's testimony, this
occurred in great part because his company both expected and
received from the consultant an honest reporting of safety
problems that did not gloss over areas of needed improvement.
We knew going in that it would be a comprehensive
inspection, and that no stone would be left unturned.
But that was our objective. Even though we had
requested the inspection, we were not looking for a
favorable report. We wanted an honest report. We wanted
to know if we had any deficiencies, and if so, where
they were. Our goal was to correct those deficiencies
and, most importantly, to provide a safe workplace for
our employees.
When we received the inspection report, it showed us
where we were in compliance with OSHA and where we were
not. Using the information contained in the report,
our Safety Committee followed through on the recommendation we
could complete in-house.19
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\19\ The New SAFE Act Hearing, supra note 10, at 45 (statement of
Robert J. Cornell, Director of Dealer Operations, Chairman of the
Safety Committee, Mon Valley Petroleum, Inc.).
Also significant was that the employers at the March
hearing uniformly testified that they were able to openly
communicate with the private consultant about safety problems.
This is significant because many employers, and particularly
the smallest of employers, are very reluctant to communicate
safety problems to OSHA for fear of retaliation. Both Bob
Cornell and Curtis McGuire agreed that they were not
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comfortable calling OSHA for help. As Bob Cornell testified:
I was extremely apprehensive about asking OSHA for
help, feeling that would open the door to extensive
fines and penalties. Yes, I feared the statement,
``Hello, I'm from the government and I'm here to
help.'' 20
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\20\ Ibid.
Curtis McGuire also testified that the open communication
he shared with his safety consultant was a key factor in
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obtaining the improved safety results achieved at his company.
I felt free to explain to him what I expect of my
employees and what happens on a daily basis--whether
good or bad. This was important to me, because there
had been days when my employees had not followed our
set safety guidelines, and I did not know how to
adequately address and correct this for the future. * *
* This freedom to honestly discuss our workplace
practices was key to accurately assessing what we could
do to prevent injuries and create a safer workplace.
21
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\21\ The New SAFE Act Hearing, supra note 10, at 53 (statement of
Curtis McGuire, Owner, Redlegs Lumper Service).
Mr. McGuire went on to testify that he would not feel
comfortable talking in such an open manner about his company's
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safety concerns with an OSHA consultant.
In all honesty, my personal preference is to work
with a private consultant hired by us than one provided
by OSHA.22
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\22\ Ibid.
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The substantial training and qualifications required to become a
consultant under the SAFE Act
For over 25 years, safety professionals have become
experienced at understanding OSHA's requirements and at
implementing individual solutions that fit workplaces as
diverse as manufacturing plants, funeral homes and retail
stores. Indeed, one of the most important benefits provided by
third party consultants is that they are not bound to conduct
compliance inspections (as OSHA inspectors are), but can also
target other safety problems that exist in each work
environment. The SAFE Act recognizes and responds to the
diversity of small and medium-sized employers by giving them an
incentive to call a safety consultant who can work with them to
find solutions to their specialized safety needs.
Additionally, the SAFE Act specifies that only the most
well-trained safety professionals may conduct safety audits
under the bill. For example, the bill makes Certified
Industrial Hygienists (CIH) and Certified Safety Professionals
(CSP) eligible for qualification as consultants. In both cases,
the highest degree of safety education and training is
required. To become a CIH, individuals must have a bachelor's
degree in science, at least 5 years employment in the field,
and have passed a comprehensive examination.23 Board
certified safety professionals (CSP) and safety engineers must
have a bachelor's degree, have a least 4 years professional
safety experience or an advanced degree or certification, and
pass a comprehensive national examination.24
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\23\ American Board of Industrial Hygiene certification handbook,
at 7-12.
\24\ Board of Certified Safety Professionals, Certified Safety
Professional Candidate Handbook, May 1997, at 3-5 (See Appendix II).
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Another highly important aspect of becoming a CIH or CSP
are the strict ethical codes to which each is bound. Each CIH,
for example, is required to follow six Cannons of Ethical
Conduct, including the mandatory requirement to ``Avoid
circumstances where a compromise of professional judgment or
conflict of interest may arise.'' 25 Similarly, all
CSP's are bound by a six-pronged code of professional conduct,
which includes the standard to ``Hold paramount the safety and
health of people.'' 26
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\25\ Code of Ethics for the Practice of Industrial Hygiene, Cannons
of Ethical Conduct.
\26\ Board of Certified Safety Professionals, Certified Safety
Professional Candidate Handbook, May 1997, at 7.
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These requirements and standards far exceed the education
and training prerequisites for becoming an OSHA inspector.
Under current regulations, the only formal training required
for becoming an OSHA inspector is 6 to 7 weeks of formal
classroom instruction at OSHA.27
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\27\ Letter from Gregory Watchman, Acting Assistant Secretary,
Occupational Safety and Health Administration, to James Talent,
Chairman, U.S. House of Representatives Small Business Committee,
(August 15, 1997), at 2.
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SAFE Act consultants can be held liable for bad behavior; OSHA
inspectors are immune
It is also highly significant that there is a far different
standard of liability for private consultants than for OSHA
inspectors who act with negligence or even gross negligence in
performing their safety duties. Private safety consultants have
been uniformly held liable for negligence in performing safety
inspections; OSHA inspectors are wholly immune from liability,
even for the most negligent behavior.
In one recent case, the Supreme Court of Arkansas held that
a private safety consultant owed a duty of reasonable care in
making inspections, and could be held liable if he was found to
have breached that duty.28 Rulings in other courts
have been similar.29 However, similar negligence
practiced by an OSHA inspector has the absolute opposite
result. Further, the courts have taken a strict interpretation
of this immunity, even when the facts of the case illustrate an
OSHA inspector has engaged in ``disturbing''
negligence.30 In one case before the First Circuit,
for example, a woman brought suit against negligent OSHA
inspectors after suffering horrible injuries when her hair was
drawn into a vacuum created by the high-speed rotation of a
drive shaft. The court held, however, that its hands were tied.
While noting that the ``case has disturbing aspects'' because
``the government's [OSHA] inspectors appear to have been
negligent and the plaintiff suffered grievous harm,'' the court
was prevented from assigning liability to OSHA due to OSHA's
immunity from suit.31
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\28\ O'Neal Wilson v. Rebsamen Insurance, Inc., et al., 957 S.W.2d
678 (Ark. 1997).
\29\ See Price v. Management Safety, Inc., 485 So.2d 1093 (Ala.
1986); Santillo v. Chambersburg Engineering Company, et al., 603 F.
Supp. 211 (E.D. Pa. 1985); Canipe v. National Loss Control Service
Corporation, 736 F.2d 1055 (5th Cir. 1984).
\30\ Irving v. United States, 162 F.3d 154, 169 (1st Cir. 1998).
\31\ Id. at 169.
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Safety and health groups, former OSHA inspectors support the SAFE Act
The SAFE Act is supported by two of the most prominent
safety professional organizations in America, the American
Society of Safety Engineers (ASSE) and the American Industrial
Hygiene Association (AIHA). Their support is particularly
important given the groups' dedication to and expertise in
improving safety and health and given their frequent support of
many of OSHA's programs and regulations.
ASSE and AIHA have said that they support the SAFE Act
because it embodies suggestions that they have long believed
should be part of an effective OSHA. Testifying on behalf of
AIHA, Gayla McClusky, a former OSHA inspector and current
Treasurer and member of the Board of Directors of AIHA,
testified that:
There are more than six million workplaces that are
under the jurisdiction of OSHA. Currently, there are
approximately 2,500 compliance officers in the Federal
and state programs. Given the millions of workplaces,
it should be obvious that most will never see a
compliance officer. OSHA's goal should be that every
employer has routine assessments of their facilities
conducted by a competent health and safety professional
to identify and correct health and safety hazards.
Therefore, strategies such as third party assistance
can be a part of the solution.32
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\32\ The New SAFE Act Hearing, supra note 10 at 79 (statement of
Gayla McCluskey, Treasurer, American Industrial Hygiene Association).
ASSE has taken a similar position in a letter endorsing the
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SAFE Act:
Utilizing the skills and abilities of qualified
private sector safety professionals as a third party
consultation medium benefits the employer, the
government, and most important of all--the American
worker.33
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\33\ Letter from Jerry P. Ray, CSP, President, American Society of
Safety Engineers, to James Talent, Chairman, U.S. House of
Representatives Small Business Committee (October 7, 1997), at 5.
Other former OSHA inspectors have endorsed the SAFE Act as
well. William Alcarese, a former Federal and State OSHA
inspector, testified that the SAFE Act is a good idea because
it would help employers take a more active view in how they
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address safety in the workplace.
Safety management is a process not an event. S. 385
addresses safety management as a methodology to tackle
work place safety issues. It provides employers
resources to tackle and learn through the aid of
competent trained safety professionals what this safety
stuff really means. It allows for the approach to
address hazards where the losses are occurring, and
where the potential problems are
festering.34
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\34\ Accident Prevention: The Focus of SAFE, Hearing on S. 385
Before the Senate Subcomm. on Employment, Safety and Training, 106th
Cong., 1st Sess (1999) [hereinafter Accident Prevention Hearing]
(statement of William Alcarese) at 29.
Steve Cave, former Assistant Area Director/Team Leader with
OSHA, has also strongly supported the SAFE Act. Speaking at the
press conference accompanying introduction of the SAFE Act, Mr.
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Cave remarked that:
[The SAFE Act] will provide a direct incentive to
private-sector employers to improve workplace safety
and health by enabling them to correct hazards in the
most effective manner possible. In addition, use of
private-sector third-party consultants will empower
OSHA to focus its efforts in areas that will provide
more direct benefit to employee safety and
health.35
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\35\ Press conference to introduce the SAFE Act in the House and
Senate, 105th Cong., 1st Sess. (September 30, 1997) (statement of Steve
Cave).
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Victims rights advocates support the SAFE Act
As discussed above, the Subcommittee on Employment, Safety
and Training's first hearing on March 4, 1999, highlighted how
OSHA is not helping the 95 percent of small business people who
care about worker safety read through or implement the
thousands of pages of safety regulations. The subcommittee's
second hearing on April 13, 1999, focused on the flip side of
that coin, and looked at how OSHA is not deterring the thin
layer of bad employers from willfully violating safety laws
either. At its second hearing, the subcommittee heard from
family members who lost loved ones in workplace accidents and
how OSHA neither helped prevent these accidents from occurring
nor adequately responded after the accidents took place. They
agreed that the SAFE Act would make OSHA a more effective
agency as well as improve workplace safety and health across
the board.
Ron Hayes, founder and director of the Families In Grief
Hold Together (``FIGHT'') Project, was one of the witnesses at
this hearing. Mr. Hayes began the FIGHT Project after his
nineteen year old son Patrick was killed on the job in 1993. He
testified that passing the SAFE Act would put OSHA ``on the
right track'' and be a proactive step towards ending worker
injuries and fatalities.
It is still disheartening to see so many people
injured and killed on the job, I believe any initiative
that brings about good positive change and oversight to
this agency, such as this bill, should be embraced and
put to the test. It has been said ``if we do not learn
from our past, we are doomed to repeat it in the
future.'' [W]e have given OSHA 29 years to make a
difference, can we really wait many more years to find
out if this agency will learn to become a proactive
partner with everyone in the work place? 36
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\36\ Accident Prevention Hearing, supra note 34, at 10 (statement
of Ron Hayes, Founder, Families In Grief Hold Together (FIGHT)
Project).
Mr. Hayes specifically targeted OSHA's unsuccessful
``reactive enforcement methodology'' as being the reason that
OSHA has been both unresponsive to the good faith employer's
compliance needs and absent from the bad faith employer's work
site all together. 37 He also testified that OSHA's
approach forces the good faith companies to lose out to the bad
faith employers in the marketplace as well.
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\37\ Id. at 9.
[The] good businesses build into their product or
bids safety measures and are sometimes undercut by
other uncaring business owners, so under our present
OSHA system, what is their benefit?
The bad companies know OSHA is ineffective and
because of the length of time it will take OSHA to
inspect every work site or get around to inspecting
them, the odds are on their side and even if caught,
they know OSHA will not do much. This bill will give
the good business some incentive to continue their good
work and will bring more business into safety
compliance, saving life and limb. 38
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\38\ Id. at 9-10.
Charles LeCroy also testified at the Subcommittee's April
hearing. Mr. LeCroy's son, Lance, was killed in 1994 in an
industrial explosion in Florida. Mr. LeCroy testified that OSHA
needed to be more proactive in approaching workplace safety,
and urged the subcommittee members to pass the SAFE Act.
OSHA has been in the past and today is still in need
of substantial alteration if they are to meet the goals
of providing health and safety for millions of workers
as Congress has mandated. We just ask the subcommittee
to know that OSHA has fallen seriously short of
insuring work sites free of hazards. * * * Please lead
the way to enacting S. 385. That piece of legislation
will be a giant step for millions of men and women who
go someplace everyday earning their living. * * * While
S. 385 may not be the perfect piece of legislation
[sic] it is considered a significant move to enhance
the image, integrity and audibility of OSHA. All the
while OSHA has been known as the big watchdog of work
sites. Let's enable the watch dog to be better trained,
work better trained trainers, to be more responsible,
to be more cooperative with employers and employees, to
take the lead and be proactive rather than merely to
wait for something to happen.39
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\39\ Accident Prevention Hearing, supra note 34, at 16 (statement
of Charles LeCroy) .
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Two groups opposed to the SAFE Act: OSHA and the national AFL-CIO
Eleven witnesses testified about the SAFE Act in the two
hearings dedicated to the bill in the Subcommittee on
Employment, Safety and Training this Congress. Nine of those
witnesses testified in favor of the bill, including two former
OSHA compliance officers, safety professionals, small
businesses, the former Chairman of the Occupational Safety and
Health Review Commission, victim rights advocates, and fathers
of sons killed in workplace accidents. 40 Every one
of these diverse groups thought the SAFE Act was a good idea;
every one believed that the SAFE Act embodied a system that
would encourage the good employers to find out how to achieve
safety voluntarily while also targeting and punishing the thin
layer of bad work sites. Two groups have opposed the bill: the
Occupational Safety and Health Administration (OSHA) and the
National AFL-CIO.
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\40\ See generally, The New SAFE Act, Hearing on S. 385 Before the
Senate Subcomm. on Employment, Safety and Training, 106th Cong., 1st
Sess (1999); Accident Prevention: The Focus of SAFE, Hearing on S. 385
Before the Senate Subcomm. on Employment, Safety and Training, 106th
Cong., 1st Sess (1999).
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Both Charles Jeffress, Assistant Secretary of OSHA, and
Margaret Seminario, Director of Occupational Safety and Health
for the AFL-CIO, testified against the bill. In fact, the heart
of OSHA's and the AFL-CIO's opposition is what the committee
sees as the great virtue of the bill: the SAFE Act utilizes and
relies on the most qualified and highly trained safety
professionals to get the Nation's work sites into compliance.
This new approach is what the committee considers to be the
crown jewel of the SAFE Act.
It takes years of schooling and training to become a
private safety consultant under the SAFE Act; 41 it
only takes about 6 to 7 weeks of formal classroom training to
become an OSHA inspector.42 Private safety
professionals are also held responsible for their actions as
they are bound by strict ethical codes and can be held legally
liable for negligent behavior. It is for these reasons that the
committee so strongly supports the SAFE Act's utilization and
reliance on highly trained safety professionals to get
workplaces into compliance. However, OSHA and the National AFL-
CIO rest almost all of their opposition to the bill on this
same basis.
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\41\ The bill makes Certified Industrial Hygienists (CIH) and
Certified Safety Professionals (CSP) eligible for qualification as
consultants. In both cases, the highest degree of safety education and
training is required. To become a CIH, individuals must have a
bachelor's degree in science, at least 5 years employment in the field,
and have passed a comprehensive examination. Board certified safety
professionals (CSP) and safety engineers must have a bachelor's degree,
have a least 4 years professional safety experience or an advanced
degree or certification, and pass a comprehensive national examination.
See Board of Certified Safety Professionals, Certified Safety
Professional Candidate Handbook, May 1997, at 3-5 (See Appendix II).
\42\ Watchman letter, supra note 27, at 2.
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Assistant Secretary Jeffress' testimony in opposition to
the bill suggested that government employees (such as OSHA
compliance officers) have more integrity when it comes to
protecting worker safety and health than do private safety
professionals. Assistant Secretary Jeffress testified as
follows:
[T]he private sector is driven by the market, not a
mandate to protect employee safety and health.
The consultant would feel pressured to sell penalty
exemptions without rigorously inspecting workplaces in
order to create business.43
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\43\ The New SAFE Act Hearing, supra note 10, at 16 (statement of
Charles Jeffress, Assistant Secretary, Occupational Safety and Health
Administration)
One of Assistant Secretary Jeffress' additional concerns
was that, as he testified, OSHA would be unable to adequately
discipline ``unconscientious consultants'' who could inflict
harm on ``thousands of working Americans,'' 44
despite the fact that a consultant could be held criminally
liable under Section 17(g) of the OSH Act for making ``any
false statement, representation or certification,''
45 and could have his professional license revoked
by the professional certifying body for bad
behavior.46 Interestingly, however, Assistant
Secretary Jeffress has noted that these penalties--criminal
liability under section 17(g) and ``appropriate personnel
action''--are a sufficient deterrent for OSHA
inspectors.47
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\44\ Ibid.
\45\ Occupational Safety and Health Act, 29 USC 666(g).
\46\ Letter from Jerry P. Ray, President, American Society of
Safety Engineers, to Alexis Herman, Secretary, Department of Labor
(January 6, 1998), at 4.
\47\ Letter from Charles Jeffress, Assistant Secretary,
Occupational Safety and Health Administration, to Michael B. Enzi,
Chairman, U.S. Senate Employment, Safety and Training Subcommittee
(April 16, 1999), at 2.
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Statements such as these which suggest that private safety
professionals are less ethical than OSHA inspectors are
unacceptable and downright false. What the evidence in fact
suggests is that OSHA inspectors are just as subject to ethical
failings as anyone else. Some evidence even suggests that some
OSHA inspectors--with the power to ruin or save a company based
on the number of citations and monetary fines levied--have
engaged in behavior that is suspect.48
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\48\ See Michael Dresser, Ticket gift may violate ethics laws, The
Sun, September 30, 1996, at 1B; Jim Morris, Dangerous bridge led to
OSHA official's resignation, Houston Chronicle, Fall 1994, at 13.
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The testimony of the AFL-CIO witness, Margaret Seminario,
paralleled that of Assistant Secretary Jeffress. One additional
point of note that Ms. Seminario made was that the SAFE Act
should be opposed because ``even the best companies, with the
best safety and health programs can have serious safety and
health hazards that put workers in danger.'' 49 This
statement, however, only begs the question that the SAFE Act
attempts to answer: why should the best companies with the best
plans in place be hit over the head with OSHA fines rather than
helped into compliance under the SAFE Act? The point is that
good companies are currently doing what they think needs doing
now, and threats from OSHA will not improve workplace safety.
In these workplaces, what the employer needs is effective help,
not additional coercion.
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\49\ The New SAFE Act Hearing, supra note 10, at 61 (statement of
Margaret Seminario, Director of Occupational Safety and Health, AFL-
CIO).
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What OSHA and the AFL-CIO want is what ultimately, it can
never have: total control for OSHA to dictate how worker safety
should be achieved without turning a critical eye to OSHA's
most serious shortcomings and seeking solutions that remedy
problems. With only about 2,500 inspectors for the whole
country 50, OSHA is only able to inspect every work
site once every 167 years.51 OSHA inspectors simply
cannot spend enough time at any given workplace to really
understand the particular safety needs of that workplace.
Therefore, just as OSHA in its current set up is no real help
to employers who want to comply, it is no real deterrent to
that thin layer of employers who are insensitive to safety.
Those employers know that the chance of a serious OSHA
inspection is very small. Even OSHA has admitted that in the
vast majority of cases, it does not inspect workplaces where a
death occurs until after the fatality,52 when it is
too late for the deceased worker and his family.
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\50\ Watchman letter, supra note 27 at 4.
\51\ AFL-CIO, supra note 4, at 3.
\52\ Associated Press, supra note 2, at 1A.
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Why the SAFE Act is needed and so strongly supported.
OSHA has suggested that, if passed, the SAFE Act will not
be used by employers. It bases this conclusion on a survey of
employers conducted by North Carolina's state OSHA plan. This
survey asked employers whether they would prefer to have an
OSHA consultant perform safety consultations at their work
sites or a private consultant, and the majority of employers
responded that they would rather use an OSHA
consultant.53
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\53\ The New SAFE Act Hearing (Jeffress testimony), supra note 43,
at 24.
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This survey, however, misses the point entirely. The first
and most obvious problem with OSHA's conclusion is that these
employers were asked whether they would use a private
consultant under the current system; they were not asked if
they would want to pay for and use a private consultant if the
SAFE Act passed and they had an incentive to do so. Such a
question would clearly yield quite different results.
The second disconnect with OSHA's conclusion is that the
SAFE Act is the most supported OSHA reform bill in history.
Dozens of business groups have applauded the SAFE Act for
giving businesses the tools they need to get safer workplaces,
including the American Bakers Association, the American Dental
Association, the American Farm Bureau Federation, the American
Health Care Association, the Associated Builders Contractors,
Inc., the Associated General Contractors of America, the
Coalition on Occupational Safety & Health, the Food
Distributors International, the National Association of
Convenience Stores, the National Association of Home Builders,
the National Association of Manufacturers, the National Black
Chamber of Commerce, the National Cattleman's Beef Association,
the National Cotton Council of America, the National Cotton
Ginners' Association, the National Federation of Independent
Businesses, the National Funeral Directors Association, the
National Mining Association, the National Paint and Coatings
Association, the National Restaurant Association, the National
Roofing Contractors Association, National Small Business
United, the Painting and Decorating Contractors of America, the
Printing Industries of America, Inc., the Small Business
Survival Committee, the Society of American Florists, the
Synthetic Organic Chemical Manufacturers Association, and the
United States Chamber of Commerce.
Indeed, when the panel of small business witnesses was
asked by Senator Wellstone (D-MN) at the subcommittee's March
hearing why the SAFE Act was needed given the fact that
employers are already using safety consultants, the strong
response from the panelists was that the incentive contained in
the SAFE Act was instrumental in getting more employers
involved in safety. Scott Hobbs testified as follows:
[The SAFE Act] would allow us just one more carrot to
try to bring these people into the safety blanket. Once
they try it, they very well might find out all the
other benefits that can come along. 54
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\54\ The New SAFE Act Hearing (Hobbs testimony), supra note 13, at
94.
Mr. Cornell strongly agreed that adding a ``kicker to a
small business person who does not want to generally get
involved with big government anyway'' would help bring even
more employers into the safety fold. 55
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\55\ The New SAFE Act Hearing (Cornell testimony), supra note 19,
at 56-57.
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The new SAFE Act: Safety and Health Plans added based on OSHA's SHARP
program
One of the most important changes made to the SAFE Act in
the 106th Congress is that the third party consultation section
of the bill has been strengthened significantly. This section
now requires that employers who voluntarily opt into the SAFE
Act's consultation program must develop work site-specific
safety and health programs before they receive a Certificate of
Compliance. The new language in the SAFE Act regarding these
``safety plans'' was taken directly from one of OSHA's
successful consultation programs, the Safety and Health
Achievement Recognition Program, or SHARP. SHARP is a
consultation-based program available to businesses who want to
work with an OSHA consultant and develop a safety and health
program in return for 1 year free from programmed
inspections.56 The key to this program's success is
that it is voluntary, it helps employers achieve compliance by
working with a trained safety consultant, and it contains
incentives to encourage employers to seek solutions to safety
and health hazards.
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\56\ www.osha.gov/oshprogs.consult.html
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The outstanding results of the SHARP program will be
amplified by its inclusion in the SAFE Act. Due to the limited
resources that OSHA dedicates to consultation, very few
employers are able to take advantage of the SHARP program.
However, under the SAFE Act, the safety benefits of the program
will be available to every employer on a voluntary basis.
An important and additional benefit of including OSHA's
voluntary, consultation-based SHARP program in the SAFE Act is
that it strikes a compromise. OSHA has been moving forward in
promulgating a mandatory safety and health program rule
applicable to all employers regardless of size or type. The
rule is not only mandatory but it is also a ``performance-
based'' rule, the elements of which are almost completely
subjective in nature. For example, the rule requires a program
``appropriate'' to conditions in the workplace, an employer to
evaluate the effectiveness of the program ``as often as
necessary'' to ensure program effectiveness, and ``where
appropriate,'' to initiate corrective action. 57
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\57\ See OSHA Draft Proposed Safety and Health Program Rule, 29 CFR
1900.1, Docket No. S&H-0027, October 1998.
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Employers are justifiably concerned because the draft rule
offers no definition of these terms to help them in their
compliance efforts. They are also concerned because there is no
objectivity to the rule. OSHA is answering these concerns by
promising that their inspectors will be fair in their
application of the rule and flexible in their interpretations.
That does not satisfy employers who have safety and health
programs in place or are working to develop such programs in a
way that meets with OSHA's approval without the threat of
fines. As stated by Brian Landon, a small business owner who
participated in OSHA's Small Business Advocacy Review Panel
process for OSHA's draft safety and health program rulemaking,
I find the vague language and terms in the proposed
rule troubling and scary. Very small business employers
would be overwhelmed implementing the vague and
sweeping mandates that are part of the
rule.58
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\58\ Small Business Advocacy Review Panel Report, OSHA's draft
proposed rule on safety and health programs, January 4, 1999, (comments
of Brian Landon, owner, Landon's Carwash and Laundry) at 4.
Many others have also questioned OSHA's mandatory draft
rule, which, as Edwin Folke, former Chairman of the
Occupational Safety and Health Review Commission has pointed
out, has a questionable and inadequate scientific
record.59 The alternative, he testified, is the SAFE
Act's voluntary standard.
---------------------------------------------------------------------------
\59\ The New SAFE Act Hearing (Folke Testimony), supra note 11, at
75.
I also believe that a benefit of the SAFE Act is that
it would provide a voluntary mechanism for employers to
implement a safety and health program, which is
tailored to that employer's unique facility and work
processes. In addition, it would allow employers a way
to measure the effectiveness of that program with the
assistance of a knowledgeable, certified consultant.
The kind of proactive consultation program that the
SAFE Act envisions can be implemented without an undue
burden on OSHA, either financially or in terms of
personnel.60
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\60\ Ibid.
The SAFE Act combines the need to promote a safety and
health program standard that is sanctioned by OSHA with the
need of the employer to know specifically how to achieve
regulatory compliance. By keeping the SAFE Act consultation-
based, employers will have full access to personalized
compliance assistance. Neither will there be a threat of
subjective enforcement under the SAFE Act because good-faith
employers cannot be penalized for good- faith compliance
efforts. The SAFE Act is the workable alternative to encourage
and implement safety and health programs that work to improve
conditions for America's workers.
The New SAFE Act: Other changes
Another important change to the SAFE Act is that the bill
has been streamlined to strengthen the consultation theme by
removing provisions that do not relate to consultation. The
importance of such streamlining is that, by highlighting
consultation, the SAFE Act is able to maintain a one-theme
message that consultations work and that their availability
should be expanded to more employers.
During markup of a prior version of the SAFE Act in the
105th Congress (S. 1237), of the minority's nine intents to
file amendments related directly to the SAFE Act, the SAFE Act
of the 106th Congress (S. 385) adopted over seven of those nine
intents. When S. 385 was introduced this Congress, three entire
sections had been removed, penalties were strengthened for bad-
acting consultants, and OSHA's right to inspect was clarified.
And as specified directly above, S. 385 also requires
participating employers to implement a safety and health plan
using language taken directly from OSHA's SHARP program. These
massive changes and overhaul demonstrate that the majority has
considered and accommodated most of the minorities concerns.
However, every time the majority has made such efforts, the
minority has moved the goal post.
The reasonableness of this year's SAFE Act cannot be
denied. In addition to the changes made to the third party
consultation section of the bill, the SAFE Act contains a
number of well-reasoned programs that either parallel or
improve OSHA's current programs.
Continuing Education and Professional Certification for Certain
Occupational Safety and Health Administration Personnel
This section of the bill requires that the OSHA personnel
performing inspections, consultations and standards
promulgation functions must obtain private sector professional
certification within 2 years of initial hire at OSHA. In
addition, OSHA employees who carry out inspections or
consultations under this section must also receive ongoing
professional education and training every 5 years of
employment. This makes obvious sense because under current
regulations, the only formal training required for becoming an
OSHA inspector is 6 to 7 weeks of classroom instruction at
OSHA.61 Such minimal requirements pale in comparison
to the requirements to become a private safety professional. To
become a Certified Industrial Hygienist (CIH), for example,
individuals must have a bachelor's degree in science, at least
5 years employment in the field, and have passed a
comprehensive examination.62 Board certified safety
professionals (CSP) and safety engineers must also have a
bachelor's degree, have at least 4 years professional safety
experience or an advanced degree or certification, and pass a
comprehensive national examination.63
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\61\ Watchman letter, supra note 27, at 2.
\62\ American Board of Industrial Hygiene certification handbook,
at 7-12.
\63\ Board of Certified Safety Professionals, Certified Safety
Professional Candidate Handbook, May 1997, at 3-5 (See Appendix II).
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Nonetheless, the SAFE Act, which includes the provision
which would ensure that OSHA is better-trained and able to meet
the safety needs of an ever-changing work force, was opposed by
the minority.
Expanded Inspection Methods
This section of the bill, which would empower OSHA in its
own discretion to investigate complaints other than through an
on-site inspection (such as by phone or fax), was also opposed
by the minority even though it directly parallels one of OSHA's
own successful programs. OSHA's ``New Nonformal Complaint
Process,'' or ``phone/fax'' procedure, provides as follows:
OSHA has reached an important milestone in building on
its successes in process improvement * * * [A] new
nonformal complaint process has been developed and
piloted, demonstrating significant reductions in
complaint turnaround time. By responding to nonformal
complaints with the telephone and fax, the pilot
offices have been [sic] able to reduce the time to
achieve hazard abatement by more than 75%. * * * We are
now prepared to implement the new nonformal complaint
pilot program in all federal offices.64
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\64\ www.osha-slc.gov (Emphasis added).
Under the phone/fax provision in the bill, such inspections
would be made for all complaints relating to safety and health
just as currently occurs at OSHA. The minority, however,
opposed the provision and offered an amendment that would allow
an employee to make complaints for reasons other than safety
and health. The committee opposes efforts that would force
OSHA, the agency dedicated solely to preserving worker safety
and health, to use its limited budget to respond to non safety
and health related complaints. The minority would not support
the phone/fax provision without this expansive language, and
thus, opposed the SAFE Act's phone/fax provision despite the
fact that it is current OSHA policy.
work site-specific compliance methods
This section of the bill allows OSHA citations to be
vacated if an employer can demonstrate that the employees of
such employer are protected by alternative methods that equal
or are more protective than the OSHA regulation. It was also
opposed by the minority. In the minority views of the committee
report on the SAFE Act during the 105th Congress, the minority
stated as follows:
[This section] of the bill would create an entirely
new statutory defense to an OSHA citation, based on an
employer's demonstration that employees were protected
by alternative methods as protective or more protective
than those required by the standard the employer
violated.65
\65\ Safety Advancement for Employees Act of 1997, S. Rep. No. 105-
159, 105th Cong., 2nd Sess (1998) at 43.
This section, however, does not create an ``entirely new
statutory defense'' to an employer under OSHA.'' Far from it.
In fact, this section is a mere offshoot of current OSHA
---------------------------------------------------------------------------
policy, which states as follows:
At times employers may not be able to comply fully
with a new safety or health standard in the time
provided due to a shortage of personnel, materials or
equipment. In situations such as these, employers may
apply to OSHA for a temporary variance from the
standard. In other cases, employers sometimes are using
methods, equipment or facilities that differ from those
prescribed by OSHA, but that the employer believes are
equal to or better than OSHA's requirements. In
applying for a permanent variance, the employer must be
able to show that his/her facility or method of
operation provides employee protection ``at least as
effective as'' that required by OSHA's
standard.66
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\66\ www.osha-slc.gov
Nonetheless, despite the fact that the SAFE Act parallels
OSHA's current policy, the minority remains opposed.
technical assistance program
This section of the legislation would allow States to give
technical assistance through cooperative agreements with OSHA
and be reimbursed in an amount that equals 90 percent. To
increase health and safety awareness, the SAFE Act mandates
that not less than 15 percent of OSHA's total amount of funds
appropriated for a fiscal year shall be used for education,
consultation, and outreach. The SAFE Act consultation services
under this pilot program must occur no later than 4 weeks after
being requested by an employer. In addition, where violations
were discovered during the consultation, OSHA would issue a
warning in lieu of citations and conduct no more than 2 visits
to the workplace to determine if corrective measures have
occurred. If the violation was not corrected, OSHA could issue
a citation. The committee has found that small businesses often
lack the necessary resources to seek a third party consultant.
Moreover, small businesses who currently request a free
consultation under existing State cooperative agreements can
confront an excessive waiting period in some States. Under this
pilot program, small businesses could still seek a free
consultation, or opt for an expedited consultation in a
participating State.
voluntary protection programs
In addition to providing cooperative initiatives for
employers to establish employer/employee participation programs
and seek third party consultation services, S. 385 would also
codify Voluntary Protection Programs (VPP) created by OSHA in
1982. VPP currently 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 VPP, the committee intends to provide
stability and permanence to these important programs. Moreover,
the committee recognizes that codification reaffirms the
federal commitment to providing the private sector with the
occupational safety and health information needed to comply
with the law. In addition to codifying the VPP, S. 385 would
also require OSHA to encourage small businesses (as the term is
defined by the Administrator of the Small Business
Administration) to participate in the voluntary protection
program by carrying out assistance and outreach initiatives and
to develop program requirements that address the needs of small
businesses.
prevention of alcohol and substance abuse
This section of the SAFE Act allows employers to establish
drug and alcohol testing programs. The effect that drugs and
alcohol have on the workplace is staggering. In 1992, for
example, the Bureau of Labor Statistics' Census of Fatal
Occupation Injuries (CFOI) program collected 1,355 toxicology
reports from 43 States and the District of Columbia, roughly
one report for every four of the 1992 fatalities. In about one-
sixth of the cases for which toxicology reports were available,
fatally injured workers tested positive for toxic substances,
most frequently alcohol followed by cocaine and
marijuana.67
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\67\ William M. Marine, M.D., and Tracy Jack, Analysis of
Toxicology Reports from the 1992 Census of Fatal Occupational Injuries,
Compensation and Working Conditions, October 1994.
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What's more, even the Department of Labor encourages
employers to establish drug and alcohol testing programs based
on its finding that drug and alcohol use by employees has a
hugely negative effect on worker safety and health. Some of
DOL's findings are as follows:
Seventy-three percent of all current drug users
aged 18 and older (8.3 million adults) were employed in 1997.
This includes 6.7 million full-time workers and 1.6 million
part-time workers.68
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\68\ www.dol.gov [quoting United States Department of Health and
Human Services, National Household Survey on Drug Abuse, (Rockville,
MD, August 1998)].
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The National Institutes of Health recently
reported that alcohol and drug abuse cost the economy $246
billion in 1992.69
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\69\ www.dol.gov [quoting National Institute on Drug Abuse and the
National Institute on Alcoholism and Alcohol Abuse, The Economic Costs
of Alcohol and Drug Abuse in the United States. (Rockville, MD, 1992)].
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In 1990, problems resulting from the use of
alcohol and other drugs cost American businesses an estimated
$81.6 billion in lost productivity due to premature death and
illness; 86% of these combined costs were attributed to
drinking.70
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\70\ www.dol.gov [quoting Substance Abuse and Mental Health
Services Administration, United States Department of Health and Human
Services, Sustance Abuse and Mental Health Statistics Sourcebook, 3
(Rockville, MD, May 1995)].
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A survey of callers to the national cocaine
helpline revealed that 75 percent reported using drugs on the
job, 64 percent admitted that drugs adversely affected their
job performance, 44 percent sold drugs to other employees, and
18 percent had stolen from co-workers to support their drug
habit.71
---------------------------------------------------------------------------
\71\ www.dol.gov (quoting National Cocaine Helpline. ``1-800-
COCAINE.'' Summit, N.J. 1987).
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Alcoholism causes 500 million lost workdays each
year.72
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\72\ www.dol.gov [National Association of Treatment Providers,
Treatment is the Answer: A White Paper on the Cost-Effectiveness of
Alcoholism and Drug Dependency Treatment (Laguna Hills, CA. March
1991)].
To respond to the growing problem of drug and alcohol abuse
in the workplace, the DOL has recommended that employers
implement drug testing programs.73 The committee has
responded to this by including a strong but voluntary drug and
alcohol testing program section in the SAFE Act that would give
OSHA the discretion to conduct testing of employees (including
managerial personnel) of an employer for use of alcohol or
controlled substances during any investigation of a work-
related fatality or serious injury. Indeed, even the testimony
of Assistant Secretary Jeffress was favorable with regard to
the voluntary drug testing program established in the SAFE
Act.74
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\73\ www.dol.gov
\74\ The New SAFE Act Hearing, (Jeffress testimony), supra note 43,
at 7 (attachments section).
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The minority, however, has opposed these efforts in the
past, stating that ``[i]nserting OSHA into this process seems
unnecessary and unwise.'' 75 This despite the fact
that drug and alcohol abuse on the job is not only common, but
is in fact one of the leading causes of workplace accidents and
fatalities.
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\75\ Safety Advancement for Employees Act of 1997, S. Rep. No. 105-
159, 105th Cong., 2nd Sess (1998) at 50.
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discretionary compliance assistance
Under current law, inspectors are not permitted to consult
with an employer on how to abate a hazard, but are required to
issue a citation. The SAFE Act would give inspectors the
ability to provide inspectors with technical or compliance
assistance in correcting a violation discovered during an
inspection or investigation without issuing a citation. This
consultative flexibility would be entirely discretionary on the
part of the inspector and would not undermine the agency's
enforcement responsibilities.
This section would permit, not require, OSHA inspectors to
issue warnings in lieu of citations in appropriate situations.
The OSH Act states that inspectors must issue a citation when
they see a violation, although the act does provide for a ``de
minimis notice'' (which is not a citation and carriers no
penalty) under sec. 9(a) of the act for violations that have
``no direct or immediate relationship to safety or health.''
76 The committee expects OSHA inspectors to use good
judgment. If they see a problem, then perhaps a citation is
required. But if the employer has tried to comply with the law
and the problem is not serious, a warning could be in order.
The committee recognizes that current law fails to provide
inspectors with this type of flexibility.
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\76\ Occupational Safety and Health Act, 29 USC 651(b)(1) (1970).
---------------------------------------------------------------------------
The constitutionality of the SAFE Act
On April 29, 1999, Senator Kennedy received a letter from
the Department of Justice (DOJ) which he shared with the
committee regarding DOJ's constitutional concerns with the
Safety Advancement for Employees (``SAFE'') Act of 1999. The
letter offered a discourse on the separation of powers and
delegation doctrines under the Constitution, and concluded that
the SAFE Act likely violates both constitutional mandates. This
letter, however, is inaccurate.
It is critical to understand that the arguments proffered
in the DOJ's letter against the constitutionality of the SAFE
Act are premised entirely on DOJ's interpretation of what
authority the consultant actually has. Indeed, if DOJ's
interpretation of the third party consultant's role were
factual, most of their analysis could be supported. But because
the interpretation is wholly incorrect, both the factual and
legal premise upon which the DOJ bases its argument must be
strongly questioned.
According to the letter, the underlying reason that the DOJ
finds the SAFE Act to be unconstitutional is that the third
party consultants envisioned by the bill would be acting in the
role of surrogate OSHA compliance officers, inspecting and
finding where and how an employer has broken OSHA regulations
without having the authority to do so. According to the DOJ,
such activities are ``central executive functions'' and go to
the heart of what ``executive agencies typically do.''
77 The SAFE Act, states the DOJ letter, is likely
unconstitutional because it ``delegates to private entities
outside the Executive branch substantial authority to execute
the laws,'' 78 and as such, ``implicates the
Secretary's power to make case-by-case determinations as to
whether admittedly applicable law has been violated''
79 and ``constrain[s] the executive branch's
implementation of the law.'' 80 The letter even goes
so far as to state that the bill would ``eliminat[e] the
executive's control over the enforcement of the law.''
81
---------------------------------------------------------------------------
\77\ Letter from Jon P. Jennings, Acting Assistant Attorney
General, Department of Justice, to Senator Edward M. Kennedy, Ranking
Member, U.S. Senate Health, Education, Labor and Pensions Committee,
(April 29, 1999), at 2.
\78\ Id. at 2.
\79\ Id. at 4.
\80\ Id. at 2.
\81\ Id. at 5.
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This analysis, however, misses the point entirely. The
fundamental role of the SAFE Act consultant is not to
``implement the legislative mandate'' 82 by imposing
penalties for noncompliance with the OSH Act as stated by the
DOJ. Instead, third party consultants are involved only to
exempt ``good faith'' employers from a 1 year civil penalty. By
passing the SAFE Act, Congress would simply be exercising its
clear and unquestionable authority to enhance and reduce OSHA
penalties.
---------------------------------------------------------------------------
\82\ Id. at 2.
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There are sufficient examples where Congress has acted to
exercise this authority for the purpose of establishing a
penalty ceiling, for mitigating penalties, or for exempting
from civil penalties altogether. It is clear, for example, that
Congress may not be prohibited from establishing civil
penalties for environmentally harmful acts. 83 In
addition, Congress has acted within its authority to increase
the maximum civil penalty limits for a violation of the Mine
Act 84 and the Occupational Safety And Health Act.
85 Of even greater relevance, in 1996, Congress
passed the Small Business Regulatory Enforcement and Fairness
Act (SBREFA), which instructed each agency regulating the
activities of small businesses to ``establish a policy or
program within one year of enactment * * * to provide for the
reduction, and under the appropriate circumstances waiver, of
civil penalties for violations of a statutory or regulatory
requirement.'' 86 The Environmental Protection
Agency (EPA) responded to SBREFA by promulgating Incentives For
Self-Policing 87, a policy that waives or mitigates
gravity-based civil penalties for those companies who conduct
their own audit and disclose and correct violations. It was
unquestionably EPA's intent--flowing from the intent of
Congress in passing SBREFA--to promote penalty waivers and
compliance assistance and show ``leniency for good actors in
order to ensure continued protection of the American public and
of our Nation's environment.'' 88 It is plain that
Congress, and the agencies following Congress' lead, have the
authority to show ``leniency for good actors'' by mitigating
and waiving penalties.
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\83\ United States v. General Motors Corp., 403 F. Supp. 1151
(1975). See also Federal Water Pollution Control Act (Clean Water Act)
Amendments of 1972, 33 U.S.C.A. Sect. 1321(b)(6).
\84\ See Federal Mine Safety And Health Act Amendments of 1990, 30
U.S.C.A. Sect. 820(a).
\85\ 29 U.S.C.A. Sect. 666 (e).
\86\ Small Business Regulatory Enforcement Fairness Act of 1996,
Sec. 223.
\87\ 60 Fed. Reg. 66706, Dec. 22, 1995
\88\ Department of Justice, Environmental And Natural Resources
Division Statement Before The Senate Subcommittee On Administrative
Oversight And The Courts, May 21, 1996, p.4. Since its issuance, EPA's
policy has been widely used, generating disclosure of violations from
an estimated 470 entities at more than 1,880 facilities. The policy has
also ``encouraged companies to expand their use of environmental
auditing and compliance management systems.'' EPA, Office of Regulatory
Enforcement, Audit Policy, Vol. 4, Number 1. See also 64 Fed. Reg.
26745 (May 17, 1999).
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The DOJ's letter also implicates the Supreme Court case of
Morrison v. Olson to bolster its argument that the SAFE Act
violates the separation of powers and delegation
doctrines.89 This case, however, has no application
whatsoever to the relevant sections of the SAFE Act. Morrison
dealt with investigative and prosecutorial authority in
criminal cases, and, indeed, the committee fully agrees that
criminal law enforcement and prosecutorial authority should be
left solely to the executive branch. But again, the SAFE Act
does not eliminate the control of the executive branch over law
enforcement. The SAFE Act simply prevents penalties on certain
civil violations for good faith actors. If an OSHA inspector
discovers that the employer did not make a good faith effort to
remain in compliance, if there has been a fundamental change in
the hazards of the workplace, or if the employer has engaged in
behavior rising to criminal levels, the inspector may
vigorously pursue all penalties available. The third party
audit provision in no way immunizes the employer from
recklessness or intentional misconduct. Nor does it in any way
create an evidentiary privilege which would stymie OSHA
investigations into wrongdoing. The OSHA inspector may continue
his inspections unabated and uninterrupted.
---------------------------------------------------------------------------
\89\ Morrison v. Olson, 487 U.S 654 (1988).
---------------------------------------------------------------------------
In a similar vein, the Supreme Court has upheld the
constitutionality of the Professional Standards Review Law
90 in which Congress designated private health
organizations with the authority to regulate their peers,
91 subject at least theoretically, to Health and
Human Services control.92 In fact, authorities have
noted that the only enactment of Congress ever invalidated for
delegating too much authority outside Congress was the
Bituminous Coal Act of 1935 in the case of Carter v. Carter
Coal Company.93 In overturning this law, the Supreme
Court in Carter held that the government intrusted too much
power in one party to regulate the private property of
another--including competitors--by allowing coal producers and
miners to fix maximum hours of labor, minimum wages, penalize
defectors with a ``prohibitive'' tax and prohibition from
government contracting.94 It is without question
that the third party consultation provision of the SAFE Act in
no way infringes on interstate commerce or fosters unfair
methods of competition as the law in question was held to do in
Carter.
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\90\ 42 U.S.C. 1320c.
\91\ Assoc. of Am. Physicians and Surgeons v. Weinburger, 395 F.
Supp. 125 (1975), aff'd without opinion, 423 U.S. 975 (1975).
\92\ Harold J. Krent, Fragmenting the Unitary Executive:
Congressional Delegations of Administrative Authority Outside the
Federal Government, 85 Nw. U. L. Rev. 62, 96, n. 108 (1990).
\93\ Carter v. Carter Coal Company, 298 U.S. 238 (1936).
\94\ Id. at 311. The Court invalidated the Coal Act as a violation
of the commerce clause and due process clause. See also Krent Article,
85 Nw. U. Law Rev. at 88, fn. 81.
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The fundamental issue under the SAFE Act is whether OSHA's
mandate to ``encourag[e] employers and employees in their
efforts to reduce the number of occupational safety and health
hazards'' is bolstered by providing positive incentives for
voluntary compliance and remediation. The issue is not whether
such incentives should be provided in lieu of enforcement for
those who shirk their responsibility under the law. Passing the
SAFE Act will have no effect whatsoever on OSHA's ability to
punish the bad actors; the SAFE Act only applies to the good
actors who can have penalties waived for good faith efforts.
V. Conclusion
For 2 years, the committee has attempted to modernize OSHA
and make it more effective. And for 2 years, the misinformation
campaign about the SAFE Act has persisted. There have been
reports alleging that the SAFE act is an attempt to dismantle
OSHA, articles that maintain that employers will be able to buy
immunity from penalties despite non compliance, and remarks
that OSHA officials are more ethical than private professionals
because ``the private sector is driven by the market, not a
mandate to protect employee safety and health.'' 95
This despite the fact that the committee has listened and
responded to the minority's concerns. The SAFE Act has
incorporated major changes to address the concerns of the
minority: it has been substantially narrowed in scope, it has
tightened controls on third party consultants, and it now
includes much of OSHA's own SHARP program language. The
minority has yet to take one step toward compromise.
---------------------------------------------------------------------------
\95\ The New SAFE Act Hearing (Jeffress testimony), supra note 43,
at 16.
---------------------------------------------------------------------------
What keeps happening is that as the committee talks about
what has been changed, or dispels myths about the bill, the
minority changes the subject. They say they are opposed to one
provision, and then when it is removed, they say that they are
opposed to another. The committee is tired of playing this
game. The new SAFE Act demonstrates the committee's commitment
to compromise, but it cannot continue to compromise over and
over again while the bar is moved higher and higher, when no
constructive suggestions are received, and when compromise is
not reciprocated.
There is no perfect fix to the crisis that is facing
America's workers, but the SAFE Act comes close. What the SAFE
Act would do is tap the thousands of safety and health
professionals who have the highest level of training and have
them work with employers to get them into compliance with
safety laws. If the employer gets into compliance with the
law--and not before--that employer can receive a certificate of
compliance which will exempt him from civil penalties only for
1 year. However, at all times and under all circumstances, OSHA
remains free to inspect these work sites, and if that employer
is not acting in ``good faith'' as determined by OSHA, that
employer is removed from the program. If the consultant is not
acting in good faith, he loses a career. Both can be subject to
monetary penalties for bad behavior as well. It's as simple as
that.
The SAFE Act is supported by testimony from two former OSHA
inspectors, safety professionals, small businesses, the former
Chairman of the Occupational Safety and Health Review
Commission, victims rights advocates, and fathers of sons
killed in workplace accidents. For those in the minority who
believe that the SAFE Act is so wrong that it is beyond
passage--beyond even compromise--it should be asked why so many
diverse groups think that the SAFE Act is a good idea. It
should be asked why people like Charles LeCroy and Ron Hayes
who have lost children in horrific workplace accidents and have
so much at stake in the fight to keep workers safe say that the
SAFE Act is a good bill that will save workers lives. It simply
is not possible that everyone who has signed on in favor of the
SAFE Act is wrong about what it will take to improve worker
safety. And by shutting down effective discussion on the bill
and by failing to take constructive action, it is the American
worker who loses out.
The SAFE Act is, at its heart, a bill that takes a step
away from the adversarial approach to worker safety that
virtually everyone agrees is without benefit or substantive
result. It is a step toward a proactive approach to achieve
safer workplaces that involves employees, employers and OSHA.
By striking a new and healthier balance for America's workers,
it will result in tens of thousands of employers getting expert
safety consultations; it will allow OSHA to target its
resources where they are most needed; and unlike other OSHA
reform bills, it preserves in full OSHA's power to inspect any
workplace and order abatement as it sees fit.
VI. Section-by-Section Analysis
Section 3: Third party consultation provision
Establishes a program to allow employers to voluntarily
enlist the help of highly-trained safety and health
professionals to create safe and healthful work sites for the
benefit of the American worker. Employers who fully utilize the
service of qualified safety and health professionals under this
program will be exempt for a period of 1 year from any civil
penalty prescribed under the OSH Act. This does not affect the
right of OSHA to inspect and investigate workplaces covered by
a certificate of compliance.
Section 4: Establishment of special advisory committee
Provides that no later than 6 months after the date of
enactment, the Secretary will establish an advisory committee
pursuant to the Federal Advisory Committee Act for the purpose
of advising and making recommendations to the Secretary with
respect to the establishment and implementation of
certification standards for individuals participating in third
party audit and evaluation programs. The committee will be
broadly represented by employees (3), employers (3), the
general public (2), and states with safety and health plans
(1). All committee members are required to have expertise in
workplace safety and health.
Section 5: Continuing education and professional certification for
certain OSHA personnel
Requires the federal employees charged with enforcing the
OSH Act and crafting new standards be capable and qualified.
Calls on all OSHA personnel performing inspection, consultation
and standards promulgation functions requiring knowledge of
safety or health disciplines to obtain private sector
professional certification within 2 years of initial hire at
OSHA. In addition, OSHA personnel who carry out inspections or
consultations under this section must also receive ongoing
professional education and training every 5 years of
employment.
Section 6: Expanded inspection methods
Empowers OSHA, entirely in its own discretion, to
investigate complaints other than through an on-site
inspection. Some complaints may only take a phone call or
written inquiry to clear up; this provision will allow OSHA to
have the discretion to save its inspectors' time for
investigating the most serious of problems.
Section 7: Work site specific compliance methods
All workplaces are unique and require individual worker
safety solutions. In this vein, citations in violation of OSHA
regulations will be abandoned if an employer can demonstrate
that the employees of such employer were protected by
alternative methods equally or more protective of the workers'
safety and health.
Section 8: Technical Assistance Program
It is often the case that employers who request a free
consultation from a State plan wait for a period of 16 to 18
months prior to receiving the service. Meanwhile, the employer
is left vulnerable to routine OSHA inspection and fines.
This section broadens the availability of consultation
services by states and OSHA to employers who voluntarily seek a
safe and healthful workplace. It codifies OSHA's current
consultation policy in cooperation with states with a state
safety and health plan by establishing a ``pilot'' program
within 90 days of enactment in 3 states for a period of 2 years
to provide expedited consultation services to small business
employers (defined by the Small Business Administration). OSHA
may charge a nominal fee for such expedited consultation
services. Under the pilot program, OSHA must provide
consultation services no later than 4 weeks after the
employer's request.
To further enhance such services, this section also
requires that 15 percent of the total amount of annual funds
appropriated to OSHA be used for education, consultation, and
outreach efforts.
Section 9: Voluntary protection programs
Codifies OSHA's Voluntary Protection Program (VPP) to
further establish cooperative agreements that encourage
comprehensive safety and health management systems. This
section requires the Secretary of Labor to encourage small
business participation in the VPP program by providing outreach
and assistance initiatives and developing program requirements
that address the needs of small businesses.
Section 10: Prevention of alcohol and substance abuse
The bill addresses the fact that preventing drug- and
alcohol-related deaths and injuries is imperative to increasing
worker safety and health in America by permitting employers to
establish drug and alcohol abuse testing programs.
Substance abuse testing programs will permit the use of on-
site or off-site urine screening or other recognized screening
methods, so long as the confirmation tests are performed in a
lab subject to subpart B of the mandatory guidelines for
federal workplace drug testing programs, State certification,
the Clinical Laboratory Improvements Act, or the College of
American Pathologists. The alcohol testing program would take
the form of alcohol breath analysis and would conform to any
guidelines developed by the Secretary of Transportation for
alcohol testing of mass transit employees under the Department
of Transportation and Related Agencies Appropriations Act,
1992.
The provisions prescribed under this section preempt any
provisions of State law to the extent that such State law is
inconsistent with this section.
Section 11: Discretionary compliance assistance
Would permit, not require, OSHA inspectors to issue
warnings in lieu of citations in appropriate situations.
Current law fails to provide OSHA with this flexibility. Under
this section, OSHA inspectors could rely on good judgment; if
they see a problem, then perhaps a citation is required. But if
the employer has tried to comply with the law and the problem
is not serious, a warning could be in order.
VII. Application of Law to Legislative Branch
Section 102(b)(3) of Public Law 104-1, the Congressional
Accountability Act (CAA), requires a description of the
application of this bill to the legislative branch. S. 385
amends the Occupational Safety and Health Act of 1970 (OSH Act)
to further improve the safety and health of working
environments, and for other purposes. S. 385 amends section 9
of the OSH Act to consider employer knowledge of an alleged
violation when issuing a citation, and to permit demonstration
by an employer of satisfactory alternative methods of
protection of the safety and health of its employees. S. 385
further amends section 9 to allow inspectors to exercise
discretion regarding the issuance of a citation. Section
215(a)(1) of the CAA requires each employing office and each
covered employee of the legislative branch to comply with the
provisions of section 5 of the OSH Act. Section 215(b) of the
CAA requires that the remedy for a violation shall be an order
to correct the violation as would be appropriate under section
13(a) of the OSH Act. Section 215(c)(1) and (2) of the CAA
grants the General Counsel of the Office of Compliance the
authority granted the Secretary of Labor in sections 8(a),
8(d), 8(e), 8(f), 9 and 10 of the OSH Act. Section 215(c)(4) of
the CAA grants the Board of Directors of the Office of
Compliance the authority granted the Secretary of Labor in
sections 6(b)(6) and 6(d) of the OSH Act. S. 385 amends
sections 8(f) and 9 of the OSH Act. Therefore, the changes made
by S. 385 to sections 8(f) and 9 apply to the legislative
branch.
VIII. Regulatory Impact Statement
The committee has determined that there will be only a
negative increase in the regulatory burden of paperwork as a
result of this legislation.
IX. Cost Estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 27, 1999.
Hon. James M. Jeffords,
Chairman, Committee on Health, Education, Labor, and Pensions, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 385, the Safety
Advancement for Employees Act of 1999.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Cyndi
Dudzinski (for federal costs), Susan Sieg (for the state and
local impact), and Theresa J. Devine (for the private-sector
impact).
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
S. 385--Safety Advancement for Employees Act of 1999
Summary: S. 385 would direct the Secretary of Labor to
establish programs to help employers comply with the
Occupational Safety and Health Act and avoid citations. Those
programs would include third-party consultation services and
expedited consultation services to small businesses.
Implementing the bill would result in additional costs to
the Occupational Safety and Health Administration (OSHA). The
precise amounts would depend on how provisions in the bill
would be implemented and the response to the new programs. CBO
estimates such costs could be several million dollars over the
first two years, and about $3 million per year thereafter,
subject to the availability of appropriations. In addition,
enactment of S. 385 would eliminate fines levied by OSHA in
cases where companies demonstrate that they have implemented a
safety measure at least as stringent as the OSHA regulation
being violated. This could decrease the total amount of fines
collected; therefore, pay-as-you-go procedures would apply.
However, CBO estimates the amounts involved would be less than
$500,000 a year.
S. 385 contains an intergovernmental mandate as defined in
the Unfunded Mandates Reform Act (UMRA). However, that mandate
would impose no costs on state, local, or tribal governments.
Other provisions of the bill would impose costs on state
governments, but such costs would be incurred voluntarily. S.
385 contains a private-sector mandate on workers related to
testing for alcohol or controlled substances, but CBO estimates
that the direct costs to workers would be negligible.
Estimated cost to the Federal Government: For purposes of
this estimate, CBO assumes that the necessary amounts will be
appropriated for each year. The estimate is based on
information from OSHA and from professional safety and health
associations. Because this bill would create several new
programs within OSHA, CBO cannot provide a precise estimate.
The costs of these provisions would depend on how the new
programs are implemented and on the extent to which employers
and safety and health professionals participate in them.
Third-Party Consultation Services Program and Special Advisory
Committee
Sections 3 and 4 would require the Secretary of Labor to
provide third-party consultation services within 18 months of
enactment. Under this program, an employer could hire a
consultant to inspect the workplace and write a consultation
report identifying violations and providing for a safety and
health program to be established and maintained by the
employer. A consultant would give an employer that met the
requirements of such a report a certificate of compliance that
would exempt that employer from any civil penalty for a period
of one year. The exemption would not apply if the employer did
not make a good faith effort to remain in compliance as
required under the declaration of compliance or to the extent
that there was a fundamental change in the hazards of the
workplace. The exemption could be extended for another year if
the employer passed a re-inspection by a certified consultant.
To implement this program, the Secretary would establish an
advisory committee to provide recommendations for third-party
consultation services. The Secretary also would be responsible
for approving consultants and maintaining a public registry of
the names of those who are approved. The Secretary could revoke
the status of a qualified consultant or employer if that
individual or employer fails to meet the requirements of the
program.
Implementing sections 3 and 4 could increase or decrease
spending by OSHA. On the one hand, OSHA would pay for the
meetings and support staff for the advisory committee. OSHA
also would need additional staff to process the applications of
individuals that apply to be certified as consultants, maintain
a public data bank containing the names of certified
individuals, and monitor practicing consultants to ensure
compliance. On the other hand, the same number of workplaces
could be inspected using fewer OSHA staff, because CBO expects
that OSHA would rarely inspect a workplace that had received a
certificate of compliance. On balance, CBO expects the net
impact of implementing these provisions would likely be a cost
of several million dollars over the 2000-2004 period, subject
to appropriation of the necessary amounts.
Potential Costs. Most of the costs for implementing
sections 3 and 4 would arise in processing applications and
policing the program to prevent fraud and abuse. Without
knowing the required qualifications or the demand for
consultants, CBO cannot estimate how many individuals would
apply for certification as consultants. For example, if 25,000
people applied, OSHA would spend $6 million dollars over the
first few years to process applications. Under this scenario,
CBO estimates that OSHA would employ 32 full-time employees at
about $90,000 a year (in 2000 dollars) to process 8,000
applications per year. CBO estimates that maintaining the
program after the initial pool of applications is processed and
policing the program to ensure proper compliance would cost $1
million annually.
Potential Savings. If OSHA otherwise would have inspected a
workplace that successfully participated in the consultation
program and S. 385 freed those enforcement efforts to be
applied to another establishment, then these provisions could
reduce the resources needed at OSHA to maintain the same
inspection status for each workplace. That result would occur
if giving employers the option to hire private consultants
reduces the number of workplaces that OSHA would need to
inspect. CBO estimates, however, that any such decrease would
be negligible for several reasons. First, many of the people
eligible to be consultants might inspect few workplaces.
Second, it is unlikely that OSHA would otherwise have inspected
many of the employers seeking certificates of compliance.
Third, a certification would not exempt employers from
inspections. So until the program was well-established, OSHA
would still inspect high-hazard workplaces whether or not they
received a certificate of compliance under the new program of
third-party consultation services.
Education and certification for OSHA personnel
Section 5 of S. 385 would require federal employees
responsible for enforcing the Occupational Safety and Health
Act to meet the same eligibility requirements as a qualified
individual under the consultation program created by sections 3
and 4. Many of the inspectors currently working for OSHA do not
meet the criteria specified in the bill, and many could require
additional training and certification if OSHA inspectors were
held to these standards. Because the bill would allow the
Secretary to determine criteria by which current employees
would qualify, however, CBO estimates this provision would
result in minimal additional costs.
Worksite-specific compliance methods
Section 7 would require citations to be waived if employers
could demonstrate that employees were protected by methods at
least as stringent as the OSHA regulation being violated. By
giving employers more leverage and thereby increasing their
incentive to contest OSHA citations, this provision could
increase the proportion of citations that are contested and the
amount of resources OSHA would devote toward litigation. Under
current law, about 9 percent of cases involving a citation are
contested and OSHA spends about 5 percent or $6 million a year
of its enforcement resources on such cases. The response to
this provision and its effect on OSHA's resources cannot be
predicted. Based on information from OSHA, this could increase
the number of cases by about 25 percent. If this did occur, CBO
estimates it would increase the amount OSHA spends on
litigation by $2 million a year.
Technical Assistance Program
Section 8 would require the Secretary to establish a pilot
program that would provide expedited consultation services to
small business in return for a nominal fee. The program would
occur in three states for a maximum period of two years. Within
90 days of the termination of the pilot project, the Secretary
would submit a report to the Congress evaluating the pilot
program. In addition, the bill would codify the existing state
consultation program, but reduce the amount OSHA reimburses for
travel expenses by 10 percent. CBO estimates that these
provisions would not have a significant effect on federal
spending.
Prevention of alcohol and substance abuse
Section 10 would permit employers to test for alcohol and
substance abuse in accordance with federal guidelines. It also
would authorize the Secretary to test employees for use of
alcohol or controlled substances during any investigations of a
work-related fatality or serious injury. CBO estimates that the
cost of overseeing the drug and alcohol programs or of any
additional drug and alcohol tests the Secretary would perform
as a result of this provision would not be significant.
Pay-as-you-go consideration: The Balanced Budget and
Emergency Deficit Control sets up pay-as-you-go procedures for
legislation affecting direct spending or receipts. Implementing
worksite-specific compliance methods could affect fines
collected by OSHA in cases where companies demonstrate that
they implemented a safety measure at least as stringent as the
OSHA regulation being violated. Amounts collected from fines
and penalties are considered revenues and are thus subject to
pay-as-you-go procedures. However, CBO estimates the amount
involved would be less than $500,000 a year.
Estimated impact on state, local, and tribal governments:
Section 10 of the bill would preempt state laws that are
consistent with provisions that establish a voluntary alcohol
and drug abuse testing program. CBO considers such preemptions
of state law to be mandates under UMRA. This mandate would
impose no costs on state, local, or tribal governments.
Section 8 would codify an OSHA regulation under which OSHA
enters into cooperative agreements with states to provide
consultation services to employers. Currently, states agreeing
to participate in this program receive federal reimbursement
for 90 percent of the cost of consultation services provided as
well as the full cost of training and out-of-state travel. S.
385 would retain the current reimbursement for consultation
services, but decrease the reimbursement for training and
travel to 90 percent of the costs incurred. Such costs would be
voluntary and not significant.
CBO has determined that all other provisions of this bill
contain no intergovernmental mandates as defined in UMRA.
Estimated impact on the private sector: Section 10 would
impose a private-sector mandate, as defined by UMRA, by giving
the Secretary of Labor the authority to conduct tests for
alcohol or controlled substances on private-sector workers
during investigations of work-related fatalities or serious
injuries. CBO estimates that taking such tests would impose
negligible or no monetary costs on affected workers.
Estimate prepared by: Federal costs: Cyndi Dudzinski.
Impact on State, local, and tribal governments: Susan Sieg.
Impact on the private sector: Theresa J. Devine.
Estimate Approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
X. Views of Senators Kennedy, Dodd, Harkin, Mikulski, Bingaman,
Wellstone, Murray, and Reed
introduction
S. 385, the ``Safety Advancement for Employees (SAFE) Act
of 1999,'' is unconstitutional legislation that would
jeopardize the safety and health of American workers. The SAFE
Act would delegate substantial authority for implementation of
the Occupational Health and Safety (OSH) Act 1 to
private sector ``consultants'' selected and hired by employers
themselves, seriously undermining the ability of the
Occupational Safety and Health Administration (OSHA) to protect
American workers from health and safety hazards in the
workplace. The Department of Justice has ``serious
reservations'' about the constitutionality of the SAFE Act,
while Harvard Law Professor Lawrence Tribe states flatly that
S. 385 cannot pass constitutional muster. For these and other
reasons, Secretary of Labor Alexis Herman has recommended a
presidential veto. The SAFE Act is unsafe for American workers
and for the U.S. Constitution, and it should be rejected.
---------------------------------------------------------------------------
\1\ 29 U.S.C. Sec. 651(b)(1).
---------------------------------------------------------------------------
section 3--delegation of osha enforcement authority to private sector
consultants
The fundamental flaw of the SAFE Act lies in Section 3, its
core provision. Under the ``Third Party Consultation Services
Program'' established in Section 3, employers would be allowed
to hire their own private ``consultants'' to determine their
compliance with OSHA regulations and the OSH Act.2
Employers who thereafter receive a ``certificate of
compliance'' from their private consultants would be exempt
from OSHA civil penalties for a period of one year.3
---------------------------------------------------------------------------
\2\ S. 385, Section 3 (adding Section 8A(e)).
\3\ S. 385, Section 3 (adding Section 8A(f)).
---------------------------------------------------------------------------
Constitutionality
The SAFE Act is unconstitutional. The Justice Department
Office of Legal Counsel warns that it has ``serious
reservations about the constitutionality of the SAFE Act.''
4 Lawrence H. Tribe, Tyler Professor of
Constitutional Law at Harvard Law School, concludes that,
``strictly as a federal constitutional matter, I believe that
Section 3--Third Party Consultation--cannot pass muster.''
5
---------------------------------------------------------------------------
\4\ Letter from Jon P. Jennings, Acting Assistant Attorney General,
Department of Justice, to Senator Edward M. Kennedy, Ranking Member,
U.S. Senate Committee on Health, Education, Labor, and Pensions (April
29, 1999), at 5 (hereinafter cited as Justice Letter). A complete copy
of the Justice letter is appended at the conclusion of the Minority
Views.
\5\ Letter from Lawrence H. Tribe, Ralph S. Tyler Jr., Professor of
Constitutional Law, Harvard University Law School, to Senator Edward M.
Kennedy, Ranking Member, U.S. Senate Committee on Health, Education,
Labor, and Pensions (September 14, 1999), at 1 (hereinafter cited as
Tribe Letter). A complete copy of the Tribe letter is appended at the
conclusion of the Minority Views.
---------------------------------------------------------------------------
Section 3 of the SAFE Act suffers from two constitutional
infirmities. First, it would violate the separation of powers
by delegating core executive branch functions to private sector
``consultants,'' thereby undermining the ability of the
executive branch to execute the laws. Second, this delegation
of core executive branch functions to private sector
consultants would be broad enough to require their appointment
as ``Officers of the United States'' pursuant to the
Appointments Clause, which would be inconsistent with the
selection procedures set forth in S. 385.
Both the Justice Department and Professor Tribe focus much
of their constitutional analysis on Section 3's violation of
the separation of powers. The Justice Department states that
Section 3 ``appear[s] to raise substantial constitutional
concerns involving the separation of powers.'' 6
Professor Tribe agrees: ``It is my conclusion that S. 385 would
violate the separation of powers.'' 7
---------------------------------------------------------------------------
\6\ Justice Letter, at 1.
\7\ Tribe Letter, at 3.
---------------------------------------------------------------------------
The Justice Department explains that ``a statute violates
the separation of powers if it ``impermissibly undermine[s]''
the powers of the Executive Branch * * * or ``disrupts the
proper balance between the coordinate branches [by]
prevent[ing] the executive branch from accomplishing its
constitutionally assigned functions,'' 8 citing the
Supreme Court case of Morrison v. Olson.9 ``The SAFE
Act implicates these principles,'' Justice argues, ``because it
delegates to private entities outside the executive branch
substantial authority to execute the laws.'' 10
---------------------------------------------------------------------------
\8\ Justice Letter, at 2.
\9\ 487 U.S. 654, 695 (1988).
\10\ Justice Letter, at 2.
---------------------------------------------------------------------------
The Justice Department argues that the ``substantial
authority'' which the SAFE Act delegates to private sector
consultants would include ``central executive functions.''
Indeed, ``[i]nterpreting a law enacted by Congress to
implement the legislative mandate is the very essence
of `execution' of the law.'' Bowsher v. Synar, 478 U.S.
714, 733 (1986). Private consultants under the bill
would be doing precisely what executive agencies
typically do, administer a federal regulatory program
by determining whether individuals are in compliance
with a federal statute and regulations. Moreover, the
bill would constrain the executive branch's
implementation of the law in a tangible way--by making
employers exempt for a period of one year from civil
penalties otherwise assessable under the OSH
Act.11
---------------------------------------------------------------------------
\11\ Ibid.
Professor Tribe agrees that ``there is nothing in the statutory
scheme that prevents these consultants from performing a
significant and indeed powerful role in implementation and
execution of a congressional enactment, OSHA.'' ``There is no
question,'' he adds, ``that the private `consultants' * * * are
entrusted with important governmental functions.''
12 The delegation of such ``central executive
functions'' would ``prevent the executive branch from
accomplishing its constitutionally assigned functions,''
13 and would therefore violate the separation of
powers.
---------------------------------------------------------------------------
\12\ Tribe Letter, at 1.
\13\ See Morrison v. Olson, 487 U.S. 654, 695 (1988).
---------------------------------------------------------------------------
Professor Tribe also makes the related argument that
Section 3 of the SAFE Act would violate the Appointments Clause
of the Constitution:
It seems impossible to escape the conclusion that the
enforcement and anti-enforcement powers of consultants
appointed under Section 3 of S. 385 would be broad
enough to require their appointment as ``Officers of
the United States'' in accord with the strictures of
Article II, Section 2, Clause 2--something for which
the proposed law obviously does not provide. * * *
Accordingly, under the separation of powers principles
articulated in Buckley 14 and adhered to
ever since, those consultants would have to be
appointed by the President or, pursuant to federal
legislation, by the Courts of Law or the Heads of
Departments. * * * Although the Secretary [of Labor] is
given a role in certifying a given consultant to
perform the services required, the selection process is
placed entirely in the self-interested hands of the
employers regulated by OSHA--the very antithesis of the
public-minded process that the Constitution is
structured to ensure in the choice of those who would
wield significant power over the public under laws
enacted by Congress.15
---------------------------------------------------------------------------
\14\ Buckley v. Valeo, 424 U.S. 1 (1976).
\15\ Tribe Letter, at 2 (emphasis in original).
Professor Tribe asserts that Section 3 of the SAFE Act ``would
transgress the Constitution's carefully wrought structure for
the appointment of those exercising significant public
authority in implementing the laws of the United States.''
16
---------------------------------------------------------------------------
\16\ Ibid., at 3.
---------------------------------------------------------------------------
Professor Tribe concludes with this withering judgment:
For all these reasons, and for the reasons
additionally elaborated by the Department of Justice in
its analysis of April 28, 1999, it is my conclusion
that S. 385 would violate the separation of powers,
would impermissibly delegate discretionary federal
authority to private individuals, would resemble the
line-item veto in entrusting to individuals outside
Congress the power effectively to nullify on a
temporary basis duly enacted provisions of federal
legislation, and would transgress the Constitution's
carefully wrought structure for the appointment of
those exercising significant public authority in
implementing the laws of the United
States.17
---------------------------------------------------------------------------
\17\ Ibid.
The Majority fails to refute the Justice Department's
analysis.18 The Majority essentially makes three
related arguments: (1) penalty exemptions fall within
Congress's ``unquestionable authority to enhance and reduce
OSHA penalties''; (2) the Justice Department's constitutional
analysis is premised on the mistaken belief that the SAFE Act
would give private consultants authority to impose OSHA
penalties; and (3) while delegating authority to issue
penalties might be impermissible, providing for penalty
exemptions is not. None of these arguments withstands scrutiny.
---------------------------------------------------------------------------
\18\ The letter from Professor Tribe was received after the
Majority completed its report.
---------------------------------------------------------------------------
First, while Congress clearly does have ``unquestionable
authority to enhance and reduce OSHA penalties,'' this is not
what the SAFE Act does. S. 385 does not uniformly reduce or
raise penalties. It delegates to private consultants the
authority to grant, on a case-by-case basis, exemptions from
fines otherwise assessable under the OSH Act. As the Justice
Department letter explains, the authority to issue such penalty
exemptions is a ``central executive function'' whose delegation
to private consultants violates the separation of powers.
Second, the Justice Department's conclusions are by no
means premised on the assumption that the SAFE Act would give
private consultants authority to impose OSHA penalties. The
Majority contends in its Report that
the underlying reason that the DOJ finds the SAFE Act
to be unconstitutional is that the third party
consultants envisioned by the bill would be acting in
the role of surrogate OSHA compliance officers,
inspecting and finding where and how an employer has
broken OSHA regulations without having the authority to
do so.
``The fundamental role of the SAFE Act,'' the Majority asserts,
``is not to `implement the legislative mandate' by imposing
penalties for noncompliance with the OSH Act, as stated by the
DOJ.'' The Justice Department states no such thing, however.
On the contrary, the Department quite clearly identifies
the specific provisions of the SAFE Act that would
impermissibly delegate ``central executive branch functions,''
quoting extensively from S. 385 itself. Justice argues that
private consultants would be ``implementing the legislative
mandate'' of the OSH Act by interpreting the law prior to
issuing a certificate of compliance, and by issuing a penalty
exemption based on that interpretation.19 Neither of
these ``central executive branch functions'' involves
``imposing penalties for noncompliance with the OSH Act,'' and
Justice is obviously under no illusion that they do. Justice
cites only one ``tangible way'' in which the SAFE Act would
constrain ``the executive branch's implementation of the law,''
and that is the delegation of authority to grant penalty
exemptions.20
---------------------------------------------------------------------------
\19\ Justice Letter, at 2.
\20\ Ibid.
---------------------------------------------------------------------------
Third, it certainly follows from the Justice Department's
analysis that issuing penalties would be a ``central executive
function.'' But the fact that the SAFE Act does not delegate
this particular function has no bearing whatsoever on the
``central executive functions'' that it does delegate.
Delegation of these ``central executive branch functions,'' by
itself, violates the separation of powers, regardless of
whether there may be additional functions whose delegations
might also violate this constitutional principle.
The Majority concedes that ``if DOJ's interpretation of the
third party consultant's role were factual, most of their
analysis could be supported.'' But the Majority fails to
identify any respect in which DOJ's interpretation of S. 385 is
not factual. The constitutional infirmities diagnosed by the
Justice Department and Professor Tribe are fatal to the SAFE
Act.
Conflict of interest and accountability
The delegation of penalty exemption authority to private
sector consultants is deeply objectionable for policy reasons
that closely parallel these constitutional arguments--conflict
of interest and lack of accountability.
Professor Tribe's Appointments Clause analysis, for
example, underscores the inherent conflict of interest that
arises when employers are allowed to select and hire their own
regulators. Professor Tribe notes that, under Section 3 of the
SAFE Act,
the selection process is placed entirely in the self-
interested hands of the employers regulated by OSHA--
the very antithesis of the public-minded process that
the Constitution is structured to ensure in the choice
of those who would wield significant power over the
public under laws enacted by Congress.21
---------------------------------------------------------------------------
\21\ Tribe Letter, at 2-3.
In testimony before the Employment, Safety and Training
Subcommittee (``the Subcommittee'') on March 4, 1999, Assistant
Secretary of Labor Charles N. Jeffress elaborated on the
problems of conflict of interest raised by Section 3 of the
---------------------------------------------------------------------------
SAFE Act:
The third party consultation provision creates a
powerful incentive for consultants to please employers
in order to create and maintain business. The
consultant's business interest in conducting
inspections and granting penalty exemptions could place
him or her at odds with the interests of employee
safety and health. * * * The consultant would feel
pressured to sell penalty exemptions without rigorously
inspecting workplaces in order to create
business.22
---------------------------------------------------------------------------
\22\ Hearing on S. 385 Before the Senate Subcommittee on
Employment, Safety, and Training, 106th Congress, 1st Session (March 4,
1999) (hereinafter cited as Jeffress Testimony), at 16.
The conflict of interest of private consultants under the
SAFE Act would jeopardize the health and safety of American
workers. Consultants would likely feel pressure to either
approve an employer's program or risk termination or non-
renewal of their contract. S. 385 would not prevent employers
from ``shopping'' for consultants until they find one willing
to either approve their operations or recommend minimal
abatement. Moreover, the SAFE Act does nothing to stop
employers from obtaining penalty exemptions from their own
employees.23 Public functions such as implementation
of the OSH Act with respect to employers should not be
delegated to employees who are subject to discipline,
discharge, or being passed up for promotion.
---------------------------------------------------------------------------
\23\ Senator Enzi stated at the Subcommittee's March 4 hearing that
S. 385 does not envisage employees qualifying as consultants, but S.
385 contains no such restriction. Hearing on S. 385 Before the Senate
Subcommittee on Employment, Safety, and Training, 106th Congress, 1st
Session (March 4, 1999), at 27.
---------------------------------------------------------------------------
This inherent conflict of interest has nothing to do with
the relative ethical integrity of OSHA inspectors and private
sector consultants, contrary to the claims of the Majority.
OSHA inspectors are prohibited from receiving money from
regulated employers on the basis of the exact same presumption
of an inherent conflict of interest. 24 There is an
obvious and undeniable conflict of interest when any person
selected and hired by the employer is entrusted to implement
laws that regulate the employer.
---------------------------------------------------------------------------
\24\ 18 U.S.C. Sec. 201.
---------------------------------------------------------------------------
Professor Tribe and the Justice Department also highlight
the lack of accountability of private consultants under the
SAFE Act. Professor Tribe notes, ``[T]hese consultants are
removable by the Secretary only for failure to perform their
duties or for malfeasance in office, and are not subject to any
day-to-day supervision of any executive officer.''
25 The Justice Department adds: ``Because these
private consultants would not be directly responsible to the
President, the public's ultimate check on negligent or
arbitrary government action would be weakened.'' 26
---------------------------------------------------------------------------
\25\ Tribe Letter, at 1-2.
\26\ Justice Letter, at 5.
---------------------------------------------------------------------------
In his testimony before the Subcommittee, Assistant
Secretary Jeffress elaborated on the problem of lack of
accountability. ``The bill provides OSHA with little recourse
against consultants whose improper certifications put workers
at risk,'' he told the Subcommittee. While OSHA can discipline
its own compliance officers, it ``would have no meaningful
recourse against a consultant who was overly generous in
granting penalty exemptions due to incompetence or
negligence.'' 27 Even in cases of ``fraud,
collusion, malfeasance, or gross negligence,'' OSHA's only
recourse would be to expel the offending consultant from the
program.28
---------------------------------------------------------------------------
\27\ The Majority argues that OSHA would have no need to discipline
consultants, because the consultants could be sued by wronged
employers. However, the Majority rejected the Reed Amendment, which
would have given injured workers and the heirs of deceased workers
legal recourse for gross negligence or willful misconduct by private
consultants.
\28\ Jeffress Testimony, at 16.
---------------------------------------------------------------------------
Obstruction of OSHA's ability to protect workers
The Justice Department argues that delegation of authority
to grant penalty exemptions would inherently ``constrain the
executive branch's implementation of the law in a tangible
way.'' 29 Indeed, there are several reasons why
penalty exemptions would, as Assistant Secretary Jeffress
testified before the Subcommittee, ``undermine the Occupational
Safety and Health Administration's (OSHA) ability to protect
workers.'' 30
---------------------------------------------------------------------------
\29\ Justice Letter, at 2.
\30\ Jeffress Testimony, at 15.
---------------------------------------------------------------------------
First, Section 3 penalty exemptions would significantly
impede OSHA's efforts to abate dangerous workplace hazards.
Under the OSH Act, OSHA has no sanction other than penalties to
compel abatement of workplace hazards, and no incentives it can
offer employers to correct hazards voluntarily.31 In
fact, OSHA typically obtains abatement through penalty
reductions. If OSHA had no penalty authority, obtaining
abatement by recalcitrant employers would be difficult--if not
impossible--without some other type of available
sanction.32 Section 3 of the SAFE Act would deprive
OSHA of its most effective--and in most cases, its only--means
of protecting workers from imminent workplace hazards.
---------------------------------------------------------------------------
\31\ OSHA has no statutory authority to obtain abatement orders,
per se. Abatement may be ordered by the Occupational Safety and Health
Review Commission (OSHRC), but only after an OSHA citation becomes a
Final Order of the OSHRC. This can be a lengthy process, however,
frustrating OSHA's efforts to obtain immediate abatement of serious
workplace hazards.
\32\ There is a criminal sanction, but only if the citation is
willful and the violation has caused the death of an employee. Then
OSHA can refer the case to the Justice Department for prosecution.
However, these cases are rarely prosecuted because the crime is
classified as a misdemeanor. In imminent danger situations, OSHA can
petition a district court for injunctive relief, but OSHA has had
difficulties obtaining such relief. See Reich v. Dayton Tire, Div. of
Bridgestone/Firestone, 853 F. Supp. 376 (W.D. Okla. 1994).
---------------------------------------------------------------------------
Second, civil fines are one of OSHA's most effective tools
for reducing deaths and injuries in the most dangerous
workplaces. The only large-scale study performed to date found
that OSHA inspections resulting in penalties led to a 22
percent reduction in injuries at inspected sites during the
three years following inspection.33 The study also
found that inspections without penalties have no appreciable
impact on subsequent rates of injuries. By immunizing employers
against penalties, the SAFE Act would eliminate one of OSHA's
most effective means of protecting workers' health and safety.
---------------------------------------------------------------------------
\33\ Wayne Gray and John Scholz, ``Does Regulatory Enforcement
Work? A Panel Analysis of OSHA Enforcement,'' Law and Society Review
(July 1993), at 177-213.
---------------------------------------------------------------------------
An invitation to abuse
Concerns over conflicts of interest and accountability are
especially serious given that Section 3 penalty exemptions
would virtually invite abuse by bad actors. Most alarmingly,
Section 3 would exempt employers from OSHA fines even if they
are in willful violation of OSHA regulations and even if their
willful violation results in serious injury to an employee.
During Committee consideration of S. 385, Senator Kennedy
offered an amendment to close this gaping loophole. The Kennedy
amendment would have disallowed penalty exemptions ``if the
employer knew or should have known of the violation.'' The
Majority rejected the Kennedy amendment on a party-line vote of
8 to 10. This vote makes clear that the SAFE Act would immunize
bad actors who knew or should have known of their violation.
A second Kennedy amendment would have disallowed penalty
exemptions for employers who commit violations that are
``willful, repeat, or have a substantial probability of causing
death or serious physical harm.'' This amendment was modeled
after the recommendations of Majority witness Ron Hayes, who
testified at the Subcommittee hearing of April 13, 1999. While
Mr. Hayes endorsed S. 385, he also testified that the SAFE
Act's one-year penalty exemption should not apply against
violations that are ``willful,'' ``repeat,'' or even
``serious'' (having a substantial probability of causing death
or serious physical harm).34 The Majority rejected
the second Kennedy amendment--and the recommendations of its
own witness--on a party-line vote of 8 to 10.
---------------------------------------------------------------------------
\34\ Hearing on S. 385 Before the Senate Subcommittee on
Employment, Safety, and Training, 106th Congress, 1st Session (April
13, 1999), at 38.
---------------------------------------------------------------------------
The Majority denies the possibility of such abuse by
arguing that ``at all times and under all circumstances, OSHA
remains free to inspect those worksites, and if that employer
is not acting in `good faith' as determined by OSHA, that
employer is removed from the program.'' The protections to
which the Majority alludes are illusory, however.35
---------------------------------------------------------------------------
\35\ As discussed supra, authority to inspect the worksite has
little practical effect if OSHA is unable to obtain abatement.
---------------------------------------------------------------------------
Section 3 does contain a ``bad faith'' exception. An
employer shall not be exempt from OSHA fines ``if the employer
has not made a good faith effort to remain in compliance as
required under the certificate of compliance.'' 36
However, under this provision, the employer need only make a
good faith effort to comply with his or her certificate, not
with OSHA regulations or the OSH Act. The certificate may well
be inaccurate. The employer may be aware of its inaccuracy. But
no matter. As the Majority's rejection of the Kennedy
amendments makes clear, the employer would nevertheless be
immune from OSHA fines--even if it knew or should have known of
the violation, and even if the violation were willful and
repeat.37
---------------------------------------------------------------------------
\36\ S. 385, Section 3 (adding Section 8A(f)(2)(a)).
\37\ Notwithstanding the Majority's assertion that ``good faith''
would be ``determined by OSHA,'' Section 3 is silent on the procedures
for determining when an employer ``has made a good faith effort to
remain in compliance'' with the certificate, as well as who makes such
a determination.
---------------------------------------------------------------------------
Nor is this an improbable scenario. Employers aware of
potentially costly safety hazards would have every incentive
under the SAFE Act to purchase a one-year immunity from the
first consultant who failed to notice the hazard, or from the
consultant who recommended the least costly abatement. And it
would not be unusual for employers at large worksites to be
much more intimately familiar with potential safety hazards
than consultants who visit their worksite solely for the
purpose of conducting a ``full service visit and
consultation.'' 38 The SAFE Act would allow such bad
actors to obtain immunity from OSHA penalties while making a
``good faith'' effort to remain in compliance with their
certificates.
---------------------------------------------------------------------------
\38\ S. 385, Section 3 (adding Section 8A(e)(1)).
---------------------------------------------------------------------------
Indeed, Section 3 penalty exemptions would be of greatest
economic value to firms with the greatest exposure to OSHA
penalties. Large corporations already in compliance with OSHA
regulations and the OSH Act need little additional incentive to
develop safety and health programs; they typically have such
programs in place already. And the SAFE Act would provide
little additional economic incentive for smaller firms already
in compliance, or for firms with limited penalty exposure, to
undergo the considerable expense of hiring a consultant. This
is especially true of small businesses with fewer than 250
employees, who can already obtain free consultation services
from OSHA in all 50 states. The SAFE Act would offer the
greatest economic benefit to firms whose penalty exposure
exceeds the marginal cost of consultation.
While S. 385 is ostensibly designed to meet the needs of
small business, in practice it would allow very large Fortune
500 corporations effectively to immunize themselves from OSHA
enforcement. Section 3 contains no limitation on the size of
firms that are eligible for penalty exemptions. Section 3
penalty exemptions would thus be available to large
corporations that typically have safety and health programs
already in place. And there is nothing in this legislation that
would prevent qualifying firms from hiring their own employees
as Section 3 consultants. Under the SAFE Act, in-house safety
and health staff could certify their own existing programs. The
SAFE Act would therefore have the perverse effect of letting
employees of Fortune 500 corporations grant penalty exemptions
to their own employers.
OSHA's support for consultation
It should be emphasized that the Minority does not object
in any way to the use of private sector consultants. On the
contrary, OSHA and the Minority strongly encourage the use of
third-party consultants, as well as in-house safety and health
staff. The Minority's fundamental disagreement with the SAFE
Act is not over the use of private sector consultants, but over
the delegation to these consultants of penalty exemption
authority.
In testimony before the Subcommittee, Assistant Secretary
Jeffress declared his support for the use of third-party
consultants. ``Private safety and health consultants provide an
important service and OSHA encourages employers to use them as
a valuable resource,'' he told the Subcommittee.39
In fact, OSHA already encourages the use of such consultants,
whether third-party or in-house, by granting employers penalty
reductions in recognition of their ``good faith efforts.''
---------------------------------------------------------------------------
\39\ Jeffress Testimony, at 15.
---------------------------------------------------------------------------
Margaret Seminario, Occupational Safety and Health Director
of the AFL-CIO, described OSHA's procedures for ``good faith''
penalty reductions in her testimony before the Subcommittee on
March 4, 1999:
Good faith efforts would include establishing a
safety and health program, whether it is done in-house
or whether it is done by a third-party. If an employer
did what is in Mr. Enzi's bill, setting up a safety and
health program, whether they did it on their own or had
a third party come in, they would now get a 25 percent
reduction from OSHA penalties. It is right there in
their field operations manual. In addition, if you are
a small employer, there is an automatic penalty
reduction, and I think that for an employer of from one
to 25 [employees], it is a 60 percent
reduction.40
---------------------------------------------------------------------------
\40\ Hearing on S. 385 Before the Senate Subcommittee on
Employment, Safety, and Training, 106th Congress, 1st Session (March 4,
1999), at 90.
In fact, small businesses who hire third-party consultants to
establish a safety and health program would be eligible for
penalty reductions of up to 95 percent. These and other
incentives may be appropriate and desirable, unlike delegation
of penalty exemption authority to private consultants.
In addition, OSHA and the Minority also strongly support
the development and use of free consultation programs.
Assistant Secretary Jeffress testified that OSHA ``provides
free consultation for small businesses in each of the fifty
states, the District of Columbia, and three territories.''
41 These free consultation services are available to
small business with fewer than 250 employees, or about 99
percent of employers. At the Subcommittee's hearing on March 4,
1999, Roslyn Wade, director of the Minnesota state OSHA
program, testified that the waiting period for the free
consultation program in Minnesota is less than two
weeks.42
---------------------------------------------------------------------------
\41\ Jeffress Testimony, at 15.
\42\ See Hearing on S. 385 Before the Senate Subcommittee on
Employment, Safety, and Training, 106th Congress, 1st Session (March 4,
1999), at 54.
---------------------------------------------------------------------------
OSHA's increased emphasis on cooperative programs
Since 1993 OSHA has significantly altered its approach to
place a much greater emphasis on consultation, outreach and
assistance. Notwithstanding the Majority's claims that OSHA
pursues an ``adversarial'' rather than a ``collaborative''
approach, OSHA has in fact strengthened its cooperative
programs, partnering with conscientious employers, offering
free consultation, and reaching out to small businesses.
OSHA's Safety and Health Achievement Recognition Program
(SHARP) is one example of OSHA's cooperative partnerships with
businesses. Under the SHARP program, employers and private
consultants work together to fix hazards in the workplace in
exchange for exemptions from programmed OSHA inspections. Even
the Majority acknowledges that the SHARP program achieves
``outstanding results.''
It is important to note the significant differences between
the SHARP program and the SAFE Act, however. Under the SHARP
program, OSHA still retains oversight authority to ensure that
workers are protected. SHARP provides exemptions only from
programmed inspections, but OSHA can still inspect the worksite
in the case of a serious accident or an employee complaint. The
SHARP program does not provide blanket immunity from civil
penalties, and OSHA retains authority to revoke participation
in the program at any time.
Similarly, OSHA's Voluntary Protection Program (VPP)
rewards employers who partner with OSHA to improve safety and
health conditions at their worksites. Once OSHA has certified a
VPP participant, that worksite is not subject to routine OSHA
inspections. According to OSHA statistics, lost workday
injuries at VPP star sites have been about 50 percent below the
industry average. In 1995, the National Performance Review
recognized the VPP as an example of excellence in reinventing
government, and Vice President Gore presented OSHA with the
Hammer Award.
As these innovative programs demonstrate, OSHA treats good
and bad employers very differently, contrary to the Majority's
charge that ``OSHA lumps all employers together--both the good
and the bad--[and] treats them the same.'' OSHA is now
targeting enforcement efforts towards the most dangerous
workplaces. Each year OSHA targets 12,500 of the most dangerous
non-construction worksites in the country and inspects as many
of them as possible. OSHA now conducts approximately 3,000
targeted inspections each year in the manufacturing industry
alone. With this strategy, OSHA can spend more time where it is
most needed--at workplaces where employers are putting their
workers' safety and health in jeopardy. As a result, safer
workplaces face fewer inspections.
The importance of enforcement
In short, OSHA employs a balanced approach that includes
not only compliance assistance, education, training, and free
consultation services for small businesses, but also targeted
enforcement initiatives. Enforcement and cooperative programs
are complementary functions, and neither can succeed without
the other. By emasculating OSHA's enforcement authority, the
SAFE Act would paradoxically undermine the very cooperative
programs the Majority supports.
As enforcement encourages employers to bring their
worksites into compliance with OSHA regulations and the OSH
Act, it simultaneously creates incentives for employers to hire
consultants or to participate in free consultation programs.
The Majority ignores the advice of experts who warn that many
employers will lose interest in collaborative initiatives if
OSHA fails to maintain a credible enforcement program. And as
Margaret Seminario testified before the Subcommittee on March
4, 1999, ``If you take the penalties off the table, you are
essentially creating a system which does not really have any
teeth to it.'' 43
---------------------------------------------------------------------------
\43\ Hearing on S. 385 Before the Senate Subcommittee on
Employment, Safety, and Training, 106th Congress, 1st Session (March 4,
1999), at 89.
---------------------------------------------------------------------------
Enforcement is not only necessary; but has proven to be
very effective in improving workplace health and safety. The
most significant reductions in injury and illness rates have
occurred in sectors of the economy that have been subject to
the most intensive enforcement. In manufacturing and
construction, industries that have received the vast majority
of OSHA inspections, injury and illness rates have declined by
30.7 percent and 50 percent, respectively, since 1973. The
mining industry, whose inspection frequency under the Mine
Safety and Health Act is much more intensive, has experienced
the greatest decline in injury and illness rates--57 percent
since 1973.
The results have been much less impressive in industries
that have received little or no attention, where safety and
health have been left largely to the voluntary compliance
efforts of employers. Those sectors have made little or no
progress in reducing job injuries and illnesses. For example,
in both the finance sector and the service sector, there has
been no decline in injury rates. Within the service sector,
injury rates in nursing homes and hospitals have been
increasing, with rates in both of these industries now higher
than in construction, once one of the most hazardous
industries. The finance and service industries, which have
experienced a large growth in employment, are now responsible
for a major part of the overall occupational injury and disease
burden in this country.
The Majority argues that continued reliance on OSHA for
enforcement of the OSH Act is not a viable option, since OSHA
is only ``able to inspect every worksite once every 167
years.'' This frequently-cited statistic needs to be put in
context, however. OSHA is prohibited from conducting scheduled
safety inspections of over three million businesses--firms with
10 or fewer employees or in lines of business with injury rates
below the national average. OSHA is able to target some of the
more dangerous industries for inspections with far greater
frequency than the quoted figure would suggest.
Nevertheless, the inability of OSHA inspectors to reach
more worksites in this country is a serious concern. A helpful
first step towards a solution to this problem would be to stop
cutting OSHA's enforcement budget. Despite rapid growth in the
labor force since 1980, the number of OSHA federal compliance
officers has fallen from 1,388 to 1,064. Meanwhile, the House
Labor/HHS Appropriations bill for FY 2000 cuts the OSHA
enforcement budget by 12 percent, and Subcommittee Chairman
Enzi offered an amendment to the FY 2000 Senate Labor/HHS
Appropriations bill that was intended to cut OSHA's proposed
enforcement budget by $16.8 million.
Another obvious solution would be to leverage OSHA's
resources with enhanced legal protections for safety and health
whistleblowers. However, despite the support of all three
Majority witnesses at the April 13, 1999 Subcommittee
hearing,44 the Majority rejected Senator Wellstone's
amendment to enhance OSHA whistleblower protections.
---------------------------------------------------------------------------
\44\ The three witnesses invited by the Majority--Ron Hayes,
Charles LeCroy, and William Alcarese--all supported enhanced
protections for OSHA whistleblowers and to enhance criminal penalties.
See Hearing on S. 385 Before the Senate Subcommittee on Employment,
Safety, and Training, 106th Congress, 1st Session (April 13, 1999), at
36-37. By contrast, no Minority witnesses endorsed the SAFE Act.
---------------------------------------------------------------------------
The Majority Report contends that OSHA enforcement is
inadequate and does not ``effectively deter bad employers from
breaking the law.'' To illustrate the point, Majority witnesses
at the April 13 hearing expressed concern over excessive
reductions of OSHA civil penalties resulting from alleged
collusion between OSHA compliance officers and employers. Yet
the Majority rejected the Wellstone amendment to enhance
criminal penalties, which would have addressed these concerns.
The Wellstone amendment, which was also endorsed by all three
Majority witnesses at the April 13 hearing,45 would
have classified willful violations that result in the death of
an employee as felonies rather than misdemeanors. Such enhanced
criminal penalties would indeed ``effectively deter bad
employers from breaking the law'' and reduce the frequency of
inappropriately low civil penalties.
---------------------------------------------------------------------------
\45\ Hearing on S. 385 Before the Senate Subcommittee on
Employment, Safety, and Training, 106th Congress, 1st Session (April
13, 1999), at 36-37.
---------------------------------------------------------------------------
The success of the OSH Act
While the Minority agrees that OSHA enforcement, training,
and consultation programs need to be strengthened and improved,
it is simply inaccurate to claim that OSHA's record has been
``disastrous.'' Injury and illness rates have been dropping
steadily almost since the agency's inception. Since 1973,
workplace injuries are down 36 percent. The injury and illness
rate for 1997 was the lowest since the Bureau of Labor
Statistics (BLS) began reporting this information early in the
1970s. In addition, the rate of workplace fatalities has
declined. In just four years, from 1994 to 1998, workplace
fatalities have decreased by 15 percent.
According to the BLS Annual Survey of Occupational Injuries
and Illnesses, the overall private sector job injury/illness
rate declined from 11 per 100 full-time workers in 1973, to a
record low rate of 7.4 per 100 workers in 1996. This represents
an overall decline of 32.7 percent. The number of fatal work
injuries fell in 1996 to 6,112, the lowest level in the five-
year history of this BLS survey. From 1948 through 1970, the
occupational death rate declined by 37.9 percent. Between
enactment of the OSH Act in 1970 and 1992, the occupational
death rate declined by over 60 percent.
Real OSHA Reform
Despite this remarkable progress in reducing workplace
injuries and fatalities, the Minority agrees that too many
American workers continue to be injured, get sick, or die on
the job. The Minority also agrees that OSHA needs to reach a
greater percentage of American workplaces, but notes that this
will require adequate resources. OSHA's resources could be
effectively leveraged by enhancing protection for
whistleblowers, as all three Majority witnesses testified at
the April 13 Subcommittee hearing. In addition, as these
Majority witnesses also testified, criminal penalties should be
enhanced to ``effectively deter bad employers from breaking the
law.'' The Minority agrees that education and training for OSHA
inspectors could be improved, but again, this will require
adequate resources. And OSH Act coverage should also be
extended to federal, state, and local workers, as several
members of the Majority have advocated in the past.
While there is much that could be done to strengthen
protections for workplace safety and health, the Majority's
brief against OSHA is riddled with logical contradictions. It
makes little sense to criticize OSHA for failing to inspect
more workplaces, while at the same time cutting OSHA's
enforcement budget and opposing stronger protections for OSHA
whistleblowers. It makes little sense to criticize OSHA for
failing to ``effectively deter bad employers from breaking the
law,'' while at the same time opposing stronger criminal
penalties. It makes little sense to criticize OSHA for issuing
inappropriately low civil penalties, while at the same time
depriving OSHA of its authority to issue any penalties at all.
It makes little sense to criticize OSHA for alleged collusion
with employers, while at the same time delegating substantial
OSHA enforcement authority to unaccountable private sector
consultants selected and hired by employers themselves.
The Majority's arguments in support of the Section 3's
private consultation program are unpersuasive. Section 3 is an
unconstitutional provision that would invite abuse by bad
actors and obstruct OSHA's ability to protect workers from
dangerous hazards in the workplace. For these and other reasons
discussed above, the Minority strongly opposes Section 3.
Expanded Inspection Methods
Section 6 of the SAFE Act would allow OSHA to investigate
alleged violations by telephone or fax. This provision would
also allow OSHA to decline investigation of a complaint if OSHA
suspects that the request was made ``for reasons other than the
safety and health of the employees'' or if OSHA determines that
workers are not at risk.
The Minority finds this section objectionable for two
reasons. First, it creates a one-size-fits-all approach,
failing to acknowledge that OSHA conducts many types of
inspections. All employees have a fundamental right to initiate
an OSHA inspection with a formal complaint. Where a worker
formally seeks to exercise that statutory right, investigating
by telephone or fax will not suffice. For inspections following
an informal complaint, on the other hand, OSHA may currently
investigate by telephone or fax. OSHA has already reduced the
delay between the filing of complaints and the abatement of
hazards.
Second, Section 6 would allow OSHA to forgo conducting a
complaint inspection if it determines that the complaint was
made for reasons other than safety and health--even if workers
are at risk. Where workers face substantial hazards, OSHA is
compelled by statute to act, regardless of the motivation of
the complainant. Moreover, determining the motivations for a
complaint is work better suited to psychologists than to OSHA
compliance officers. Attempting to discern what is in the minds
of each complainant would consume scarce agency resources and
delay inspections. The Minority believes OSHA should continue
to inspect where workers are at risk.
Employer Defenses
Section 7 of the bill would create an entirely new
statutory defense to OSHA citations. Under Section 7, an
employer would be allowed to argue that employees are protected
by alternate methods as protective as, or more protective than,
the OSHA standard violated by the employer. This provision
could seriously undermine OSHA's standards, and transform every
enforcement action into a costly and time-consuming variance
proceeding.
The Occupational Safety and Health Review Commission
(OSHRC) and the courts have held repeatedly that, when OSHA
standards require employers to adopt specific precautions for
protecting their workers, 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 demonstrate that a variance has either been
sought or would be inappropriate.
Under these rules, the challenge rate has remained
relatively low; fewer than ten percent of all citations are
currently contested. Under Section 7, however, virtually every
employer cited for violating the statute or its interpretive
regulations could claim that an alternative means of compliance
was as effective as the standard in question. In effect,
standards would become guidelines, subject to challenge--and
potential waiver--in every contested case.
Section 7 would sweep aside the years of public comment,
risk assessment and feasibility evidence that go into the
compliance obligations expressed in OSHA standards. It would
make OSHA rulemaking--and public participation by businesses,
trade associations, employee groups and other stakeholders--
largely irrelevant. Moreover, if the Majority believes that
current OSHA standards fail to give clear guidance to the
regulated community, this new defense allowing employers to
decide their own precautions would make the tort law system
look like a model of simplicity and predictability. Section 7
could have a substantial impact on agency resources, and would
greatly increase litigation burdens on OSHA, the OSHRC, and the
federal courts.
Technical Assistance Program
Section 8 of the SAFE Act requires cooperative agreements
between OSHA and the States to provide consultation programs.
This section purports to codify OSHA's current consultation
policy. It requires a pilot program to be established in three
states for up to two years to experiment with a fee-for-service
system. However, the fifty state agencies that already
administer the consultation program have expressed serious
reservations about charging fees for the consultation program.
The practical effect of imposing a fee for consultation
services is obvious: those who could pay would be visited
first. This contradicts the Majority's stated desire to direct
these consultation services to small employers and very
dangerous worksites that cannot afford to hire other
consultants.
Voluntary Protection Program
Section 9 of the SAFE Act attempts to codify OSHA's
Voluntary Protection Program by requiring OSHA to establish
cooperative agreements with employers who create and maintain
comprehensive safety and health management systems. Section 9
requires enhanced OSHA efforts to include small businesses in
the program. Participation would result in exemptions from
inspections and from certain paperwork requirements.
However, the VPP has traditionally been a program for
worksites, not employers, and it should remain so. Although
Section 9 makes some references to ``the worksite,'' this
critical foundation of the program must be emphasized.
Accordingly, the Minority does not support this provision as
drafted.
Prevention of Alcohol and Substance Abuse
Section 10 of the SAFE Act authorizes OSHA to test workers
and managers for drugs and alcohol following a work-related
death or serious injury. It also allows employers to institute
their own testing programs within state and federal guidelines.
The Minority supports measures that contribute to a drug-
free work environment. Reasonable drug testing programs can be
appropriate for certain workplace environments, such as those
involving safety-sensitive duties. But employees' privacy
rights must be protected adequately. This provision would
divert scarce OSHA resources to the oversight of drug and
alcohol programs--an area in which the agency has no expertise.
Furthermore, the Majority overlooks the fact that employers are
already free to institute substance abuse testing programs, as
long as they comply with applicable federal and state laws.
Inserting OSHA into this process seems unnecessary and unwise.
Consultation Alternatives
Section 11 of the SAFE Act provides that OSHA should be
allowed to issue warnings, rather than citations, to employers
when their violations poses no significant safety hazard, or
when they have acted in good faith to abate their violations
promptly.
The OSH Act currently provides that OSHA ``shall'' issue
citations, and Section 11 would change this language to
``may.'' The impact of this change is unclear. Federal case law
demonstrates that OSHA already has a high degree of
prosecutorial discretion and has the power to establish
programs such as Maine 200, in which it does not issue a
citation for every violation it discovers. So Section 11 may be
simply unnecessary.
But Section 11 could also undermine OSHA's enforcement
authority. Some employers could misunderstand Section 11 as a
limitation on OSHA's authority to issue citations. Especially
troubling is the language permitting a warning in lieu of
citation for violations that the employer ``acts promptly to
abate.'' Although OSHA would still have discretion to issue
citations in such circumstances, this language might encourage
employers to let violations go uncorrected until they are
discovered by OSHA inspectors. This provision could thus
undermine the preventive purpose and the deterrent effect of
OSHA's enforcement program.
Employers should always be encouraged to abate hazards
promptly, but the appropriate mechanism should be reduction of
penalties rather than failure to issue citations. Otherwise,
employers who make good faith efforts before an OSHA inspector
arrives on the doorstep will be treated in the same way as
negligent employers who ignore their workers' safety until they
are inspected.
Democratic Amendments
Strike penalty exemption
To resolve the serious constitutional, conflict of interest
and accountability problems in the SAFE Act, Senator Kennedy
offered an amendment to remove the penalty exemption provisions
of Section 3. Delegating penalty exemption authority to private
consultants is unconstitutional and dangerous to American
workers. The Department of Justice and Harvard Law Professor
Lawrence Tribe have argued that this provision violates the
separation of powers and the Appointments Clause--Article II,
Section 2, Clause 2. For this reason alone, the penalty
exemption provision should be stricken.
Striking this provision from the SAFE Act would have also
addressed the bill's obvious conflict of interest and
accountability problems. Allowing employers to select and hire
private individuals to exempt them from OSHA penalties presents
undeniable conflict of interest problems. OSHA inspectors are
prohibited from receiving money from employers--and for good
reason. A financial relationship, however well-intended,
undermines the ability of inspectors to uphold the public
interest. For this reason, private paid consultants should not
be given the authority to shield employers from OSHA penalties.
In addition, as drafted, S. 385 lacks any meaningful
mechanism to deal with consultants who, through incompetence or
negligence, grant penalty exemptions that leave workers exposed
to workplace hazards. And for employers who engage in more
culpable conduct, such as collusion or fraud, the SAFE Act only
provides for their expulsion from the program. This remedy,
where it exists, is simply insufficient to redress the
potential harm to which workers would be subjected. The SAFE
Act contains no mechanism for revoking certificates of
compliance that are inaccurate, not even when workers are
seriously injured or killed. OSHA must be allowed to retain its
authority to enforce workplace health and safety standards when
workers are at risk.
The Kennedy amendment was a constructive step towards
resolving the Minority's concerns with S. 385. Unfortunately,
the Majority defeated the amendment on party-line vote of 8 to
10.
Strike penalty exemption for willful, repeat and serious violations
The penalty exemption authority delegated to private
consultants under the SAFE Act is broad and overreaching. Once
a consultant issues the certificate of compliance, OSHA has no
remedies against employers who deliberately jeopardize the
safety and health of their workers. The Majority's own
witnesses, Mr. Ron Hayes, agreed that the SAFE Act's penalty
exemptions should not apply against employers whose violations
are willful, repeat, or serious.46 Senator Kennedy's
second amendment, based on the recommendations of Mr. Hayes,
would have disallowed exemptions for employers who commit
violations that are ``willful, repeat, or have a substantial
probability of causing death or serious physical harm.'' The
Majority rejected this amendment, and the recommendations of
its own witness, on a party-line vote of 8 to 10.
---------------------------------------------------------------------------
\46\ Hearing on S. 385 Before the Senate Subcommittee on
Employment, Safety, and Training, 106th Congress, 1st Session (April
13, 1999), at 38.
---------------------------------------------------------------------------
Strike penalty exemptions for employers who knew of violations
Senator Kennedy's third amendment was designed to prevent
penalty exemptions from shielding bad actors. Under the
amendment, employers would forfeit their penalty exemption if
they knew or should have known of their violation. Employers
who know they are violating the law should not be immunized
from OSHA enforcement just because a private consultant failed
to notice a workplace hazard or agrees to let them fix it over
a prolonged period of time. Again, this amendment underscores
the Minority's view that penalty exemptions should not give
employers an excuse to ignore the safety and health of their
workers. The Majority's rejection of this amendment on a vote
of 8 to 10 makes it clear that S. 385 Act would immunize bad
actors.
Enhanced whistleblower protections
While the SAFE Act purports to protect workers, the
Majority rejected an amendment offered by Senator Wellstone
that would have given workers real safety and health
protections. Senator Wellstone's amendment would have
strengthened and expanded anti-discrimination protections for
employees who report workplace health and safety hazards in the
workplace. The Wellstone amendment would encourage employees to
step forward and identify hazards in the workplace without fear
of retaliation from their employers.
In theory, workers are already protected from retaliation
under Section 11(c) of the OSH Act, but this protection is all
too often meaningless. As Assistant Secretary of Labor Charles
Jeffress testified before the Employment, Safety, and Training
Subcommittee, ``The provisions in place today in Section 11(c)
of the Act are too weak and too cumbersome to discourage
employer retaliation or to provide an effective remedy for the
victims of retaliation.''47
---------------------------------------------------------------------------
\47\ Jeffress Testimony, at 18.
---------------------------------------------------------------------------
The Wellstone amendment would have corrected the flaws in
Section 11(c). It would have given workers 6 months, rather
than 30 days, to file a grievance for retaliation. It would
have protected not only workers who report unsafe conditions,
but also employees who refuse to work when they have good
reason to think they might be harmed or injured. To expedite
the grievance process, the Wellstone amendment provided for
prompt hearings before an administrative law judge. It would
have allowed dissatisfied workers to then take their case to a
federal appeals court themselves, not having to rely on the
Department. And it would have provided for reinstatement during
these proceedings, as well as compensatory damages and
exemplary damages when the employer's behavior is particularly
outrageous.
At a time when too many workers are injured or killed on
the job, the courageous individuals who report workplace safety
and health hazards need more protection, not less. All four
witnesses at the April 13, 1999 hearing of the Employment,
Safety, and Training Subcommittee--including the three Majority
witnesses--endorsed the Wellstone amendment.48
Ignoring the recommendations of its own witnesses, the Majority
rejected this amendment on a vote of 8 to 10.
---------------------------------------------------------------------------
\48\ Hearing on S. 385 Before the Senate Subcommittee on
Employment, Safety, and Training, 106th Congress, 1st Session (April
13, 1999), at 36-37.
---------------------------------------------------------------------------
Criminal penalties
The Majority argues that OSHA's enforcement of the OSH Act
has been excessively burdensome, and that employers need relief
from excessive and costly compliance requirements. Yet the
Majority also argues, and Majority witnesses have testified,
that OSHA does not ``effectively deter bad actors from breaking
the law.'' Senator Wellstone offered an amendment that would
have deterred bad actors without imposing any new
administrative burdens.
By statute, an employer who willfully violates the OSH Act
and causes the death of an employee can only be charged with a
misdemeanor. Because this criminal penalty is so insignificant,
the Justice Department rarely prosecutes employers whose
deliberate actions cause the death of their employees.
Senator Wellstone's amendment would have reclassified
willful violations that result in the death of an employee as
felonies, rather than misdemeanors. For willful violations
resulting in death, the Wellstone amendment would have
increased the maximum fine from $10,000 to $250,000, and the
maximum jail time from six months to 10 years. All four
witnesses at the April 13, 1999 hearing of the Employment,
Safety, and Training Subcommittee--including three Majority
witnesses--endorsed this amendment.49 However, the
Wellstone amendment failed on a split vote of 9 to 9.
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\49\ Hearing on S. 385 Before the Senate Subcommittee on
Employment, Safety, and Training, 106th Congress, 1st Session (April
13, 1999), at 36-37.
---------------------------------------------------------------------------
State and local public employee protections
Senator Wellstone offered an amendment extending OSH Act
coverage to state and local public employees who are not
currently covered. Today, 29 years after the OSH Act was
enacted, over eight million state and local workers continue to
be excluded. Public workers often perform dangerous work and
suffer injury rates higher than most other workers. In 1997,
624 state and local workers were killed at work.
The extension of OSH Act protections to state and local
government employees has had bipartisan support in the past,
including the support of the Bush Administration in 1991. The
Clinton Administration supports extension of OSH Act coverage
to public employees, as well. At the March 4 hearing of the
Subcommittee, Assistant Secretary Charles Jeffress testified,
Another area this Subcommittee may want to consider
is protections for public employees. The OSH Act
currently * * * does not protect state and local
employees (maintenance workers, construction workers,
firefighters, etc.) * * * There are numerous examples
of on-the-job tragedies that occurred primarily because
safety and health protections do not apply to public
employees. These tragedies could have been prevented by
compliance with OSHA rules.50
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\50\ Jeffress Testimony, at 18.
Despite significant bipartisan support in the past for this
common-sense reform, the Wellstone amendment failed on a 9 to 9
vote.
Federal employee protection
Similarly, Senator Wellstone offered an amendment to extend
full OSHA coverage to employees of the federal government.
Federal employees have been excluded from OSHA coverage for
almost 30 years. While a 1980 executive order requires federal
agencies to comply with OSHA standards, it provides no real
enforcement authority to ensure that federal workers are in
fact being protected.
Again, this common sense amendment should have been
bipartisan and uncontroversial. In 1994, Republican congressman
Cass Ballenger proposed to cover federal employees in his OSHA
reform legislation. Last year, under the leadership of Senator
Enzi, the Senate voted unanimously to extend OSHA coverage to
the U.S. Postal Service. On introducing his Postal Employees
Safety Enhancement Act of 1998, Senator Enzi indicated that all
federal employees should ultimately be covered, stating, ``This
important legislation is an incremental step in the effort to
ensure that the `law of the land' applies equally to all
branches of government as well as the private sector--and
everything in between.'' 51 Nevertheless, the
Wellstone amendment failed on a party-line vote of 8 to 10.
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\51\ Congressional Record (May 22, 1998), at S5434.
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OSHA investigations for fatalities on small farms
A rider attached to previous and current Labor, Health and
Human Services, and Education appropriations bills prevents
OSHA from obligating or expending funds to prescribe, issue,
administer, or enforce any standard, rule, regulation, or order
under the OSH Act in the case of a farming operation that does
not have a temporary labor camp and that has 10 or fewer
employees.
To address the critical issue of child labor safety in the
agriculture industry, Senator Reed proposed an amendment that
would have granted OSHA funding to conduct inspections and
issue reports on the causes of accidents that claim the lives
of employees under the age of 18 who die while working on small
farms. The Reed amendment would have retained the rest of the
small farm rider, preventing OSHA from levying fines, issuing
citations, or taking any other enforcement action on small
farms.
The Minority recognizes the importance that many Senators
place on protecting smaller farms and businesses from undue
regulation. The Minority is also aware that the small farm
rider has been part of the law since 1977. However, agriculture
remains the second most hazardous industry in the nation, with
592 work-related deaths on farms in 1998. The risk of fatal
injury is particularly great for children. Indeed, the
magnitude of this problem was recognized by the National
Research Council (NRC) in a 1998 report entitled Protecting
Youth at Work.52
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\52\ National Research Council, Protecting Youth at Work (1988).
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The level of OSHA enforcement applied to non-agricultural
small businesses is more rigorous than the OSHA activity
allowed on small farms. Under a separate rider, non-
agricultural small businesses with 10 or fewer employees are
already subject to OSHA enforcement (including citations and
fines) for hazards that present an imminent danger to employee
safety and health. More significantly, these firms are subject
to inspections and fines as a consequence of an employee death,
incidents that seriously multiple employees, and complaints
made by an employee.
Rather than placing small farms on a par with small
businesses of comparable size, Senator Reed's amendment would
have retained the ban on OSHA enforcement, but would have
allowed important information on the causes of fatal accidents
to be gathered and shared with the operators of small farms.
This narrowly tailored amendment struck an appropriate balance
by allowing OSHA to determine the cause of a worker's death,
but not to impose penalties on the farm operator. However, the
Reed amendment failed on a split vote of 9 to 9.
Private right of action and criminal penalties
Senator Reed also offered an amendment to make consultants
more accountable under the SAFE Act. The Reed Amendment would
have created a private right of action for employees injured by
the culpable conduct of consultants, and also would have
established criminal penalties.
The SAFE Act provides OSHA only very limited authority to
oversee the private consultants who are delegated penalty
exemption authority. OSHA would have little recourse against
consultants who engage in misconduct or simply fail to keep the
workplace safe. Because of this lack of accountability, Senator
Reed offered an amendment to make consultants accountable to
any employees injured due to the consultant's gross negligence
or willful misconduct. Specifically, the Reed amendment would
have added a new private right of action against consultants
and employers for employees (or their heirs) injured or killed
due to willful or grossly negligent misconduct.
In addition to this private right of action, the Reed
amendment would have made bad consultants subject to criminal
penalties. The amendment would have made it a misdemeanor for
an employer and consultant to conspire to hide a hazard. Under
the Reed Amendment, a misdemeanor charge would also attach if
the consultant failed to identify a hazard through gross
negligence.
The Reed amendment would have provided at least some
assurance that parties responsible for the death or injury of
an employee could be held accountable under the SAFE Act.
However, it failed on a party line vote of 8 to 10.
Alternative complaint procedures
Senator Murray offered an amendment to restore the right of
employees to secure an inspection of their workplace when they
file a formal, written, and signed complaint that makes out a
prima facie case of a health or safety violation threatening
physical harm or imminent danger. S. 385 eliminates this most
fundamental right of employees to obtain the assistance of
their government in protecting their health and their lives--a
right that is all the more essential because the OSH Act
provides no private right of action to compel employers to
comply with the law.
Senator Murray's amendment would codify current law, which
permits OSHA to investigate informal complaints--those which
are not written and signed by an employee--by phone or fax,
while guaranteeing the right to have OSHA perform an on-sight,
physical inspection of the workplace if an employee signs a
complaint alleging violations that could kill or seriously
injure workers. The majority defeated the Murray amendment on a
party-line vote of 8 to 10.
Federal contracts debarment
Senator Harkin offered an amendment to prohibit any
employer from obtaining federal contracts when it has
demonstrated a clear pattern and practice of committing serious
violations of the OSH Act. This amendment is consistent with
the General Accounting Office recommendation of August 1996,
which urges the Department of Labor to examine debarment as an
additional tool to improve workplace safety and
health.53
---------------------------------------------------------------------------
\53\ GAO/HEHS 96-157 (1996).
---------------------------------------------------------------------------
The debarment approach to encourage compliance with other
labor laws has already proven effective. For example, the
Davis-Bacon Act contains a debarment provision, and for the
last 60 years this provision has provided a deterrent against
violations of the law.
The Harkin amendment was also consistent with the
Majority's arguments for S. 385: that OSHA's enforcement reach
is too short, and that future additional funding for federal
compliance staff is unlikely. The sponsors of S. 385 have
argued that additional enforcement strategies are needed.
Debarment for serious workplace violations is a reasonable
and common sense approach. When contractors exhibit a clear
pattern or practice of exposing their workers to serious
violations of existing regulations--violations that are likely
to cause serious bodily harm or death--they should not be
rewarded with additional federal dollars. If the Majority is
correct that 95 percent of employers are doing their best to
provide a safe and healthy workplace, there is no reason for to
rely on the 5 percent who are consistently negligent or
reckless to perform the government's work.
The Harkin amendment would have provided a major incentive
for firms to keep their workplaces safe, but it was defeated on
a party-line vote of 8 to 10.
conclusion
S. 385 is unconstitutional legislation that would endanger
the safety, health, and lives of American workers. Section 3,
in particular, is an unconstitutional provision that would
invite abuse by bad actors and obstruct OSHA's ability to
protect workers from dangerous hazards in the workplace.
Although Section 3 is the most objectionable provision of
the SAFE Act, the Minority finds several other provisions of
this legislation highly objectionable. S. 385 creates new
employer defenses that would effectively render OSHA
regulations meaningless. It gives employers one bite at the
apple before they need to comply with safety and health
regulations. It tramples on employee inspection rights and
permits OSHA to forgo complaint investigations, even when
employees are at risk. And it creates fee-for-service
consultation programs that would put small, less wealthy
businesses at a serious disadvantage.
Assistant Secretary Jeffress testified before the
Subcommittee on March 4, 1999, that ``if S. 385 were passed, as
drafted, the Secretary again would be forced to recommend a
veto.'' 54 The Minority agrees that the
Administration should veto this legislation, if enacted. For
all the reasons stated above, the Minority strongly opposes S.
385.
---------------------------------------------------------------------------
\54\ Hearing on S. 385 Before the Senate Subcommittee on
Employment, Safety, and Training, 106th Congress, 1st Session (March 4,
1999), at 15.
Edward M. Kennedy.
Tom Harkin.
Jeff Bingaman.
Patty Murray.
Chris J. Dodd.
Barbara A. Mikulski.
Paul Wellstone.
Jack Reed.
Enclosure.
Harvard University Law School,
Cambridge, MA, September 14, 1999.
Hon. Edward Kennedy,
Russell Senate Office Building,
Washington, DC.
Dear Senator Kennedy: You have asked me to analyze the
constitutional issues posed by S. 385, the ``SAFE Act,'' which
would in effect allow private individuals to exempt employers
from OSHA penalties. This letter reflects the results of that
analysis. I should emphasize at the outset that I have given no
thought to the policy implications of S. 385 and have no
personal views one way or the other as to the wisdom of the
measure, or the balance of costs and benefits that might lead
one who felt unconstrained by the Constitution either to
support or to oppose it. Strictly as a federal constitutional
matter, I believe that Section 3--Third Party Consultation--
cannot pass muster.
There is no question that the private ``consultants'' with
whom employers may contract to advise them as to whether they
are in compliance with the requirements of the Occupational
Safety and Health Act of 1970 (``OSHA''), including regulations
promulgated under OSHA, are entrusted with important
governmental responsibilities by Section 3 of S. 385. For, with
limited exceptions, an employer armed with a ``certificate of
compliance'' from one of these ``consultants'' enjoys immunity
from the imposition of civil penalties under OSHA for a period
of twelve months.
Although consultants must, under S. 385, be certified by
the Secretary of Labor as qualified to provide this immunity-
conferring certificate, and although such consultants are
removable from their positions by the Secretary upon ``failure
to meet the requirements of the program'' or upon the
commission of ``malfeasance, gross negligence, collusion or
fraud in connection with any consultation service provided by
the * * * consultant,'' there is nothing in the statutory
scheme that prevents these consultants from performing a
significant and indeed powerful role in the implementation and
execution of a congressional enactment, OSHA. Their role is in
no sense merely advisory; they are delegated the power to
interpret and apply OSHA's requirements to particular employers
and specific situations, and thereupon to take action--either
issuing or refusing to issue a certificate of compliance--that
has dramatic legal consequences for the employer involved, for
his, her or its employees, and for the public. Yes these
consultants remain private individuals, rather than public
officials appointed in accord with the Appointments Clause of
the Constitution, Article II, Section 2, Clause 2.
Because these consultants are removable by the Secretary
only for failure to perform their duties or for malfeasance in
office, and are not subject to the day-to-day supervision of
any executive officer, they certainly cannot be described as
adjuncts of the Executive Branch. Nor, despite the significant
interpretive functions they perform with respect to the
provisions of OSHA and its regulations across the entire range
of industries and economic sectors covered by OSHA, can these
consultants be regarded as functionaries within the Judicial
Branch. Finally, because their actions affect legal rights,
duties, and responsibilities of ordinary citizens and companies
rather than simply facilitating the work of Congress, they
cannot be deemed auxiliaries of the Legislative Branch.
Even though the Supreme Court has been relatively tolerant
over the past six decades or so of federal laws delegating
power to executive officials or even to officials of
independent agencies appointed in accord with Article II, it
has been understandably concerned about delegations of power to
private individuals or entities. Those delegations of this
character that have been upheld have tended to involve
delegations of a ``more or less technical nature,'' A.L.A.
Schechter Poultry Corp. v. United States, 295 U.S. 495, 537
(1935), or delegations of a power simply to reject or veto
specific courses of action--not delegations of broadly
discretionary authority to construe and apply federal
regulatory measures, with the power effectively to suspend the
operation of those measures to restrain particular regulated
entities. If, as the Supreme Court recently held in Clinton v.
New York, 524 U.S. 417 (1998), not even the President may be
armed by Congress with a line-item veto enabling the Chief
Executive to cancel or rescind part of a duly enacted statute,
it would seem to follow a fortiori that a private citizen
cannot be armed by Congress with a line-item suspension power
enabling that citizen to shield another from the consequences
of non-compliance with a law duly enacted by Congress.
Beyond this constitutional infirmity, it seems impossible
to escape the conclusion that the enforcement and anti-
enforcement powers of consultants appointed under Section 3 of
S. 385 would be broad enough to require their appointment as
``Officers of the United States'' in accord with the strictures
of Article II, Section 2, Clause 2--something for which the
proposed law obviously does not provide. Although these
consultants undoubtedly have less wide-ranging powers than
those the Supreme Court found impermissibly entrusted to non-
Officers of the United States in Buckley v. Valeo, 424 U.S. 1
(1976) (invalidating the statute creating the Federal Election
Commission insofar as it entrusted such enforcement powers as
the power to institute civil actions against violators of the
statute to individuals appointed by the President pro tempore
of the Senate and the Speaker of the House), the powers wielded
by S. 385-consultants cannot be regarded as entailing anything
less than significant authority under the laws of the United
States. Accordingly, under the separation of powers principles
articulated in Buckley and adhered to ever since, those
consultants would have to be appointed by the President or,
pursuant to federal legislation, by the Courts of Law of the
Heads of Departments. Even assuming that these consultants,
despite the lack of direct supervision by the Secretary, could
be deemed ``inferior'' officers within the meaning of Morrison
v. Olson, 487 U.S. 654 (1988), and thus could be appointed
without confirmation by the Senate, the proposed statute fails
to provide for their appointment by any of the authorized
repositories of appointment power under Article II. The
Secretary of Labor is, to be sure, among the ``Heads of
Departments,'' but it is not the Secretary under S. 385 who
appoints the consultants. Although the Secretary is given a
role in certifying a given consultant to perform the services
required, the selection process is placed entirely in the self-
interested hands of the employers regulated by OSHA--the very
antithesis of the public-minded process that the Constitution
is structured to ensure in the notice of those who would wield
significant power over the public under laws enacted by
Congress.
For all these reasons, and for the reasons additionally,
elaborated by the Department of Justice in its analysis of
April 28, 1999, it is my conclusion that S. 385 would violate
the separation of powers, would permissibly delegate
discretionary federal authority to private individuals, would
resemble the line-item veto in entrusting to individuals
outside Congress the power effectively to nullify on a
temporary basis duly enacted provisions of federal legislation,
and would transgress the Constitution's carefully wrought
structure for the appointment of those exercising significant
public authority implementing the laws of the United States.
Whether S. 385 is a good or a bad idea in policy terms. I
believe it violates the Constitution.
Sincerely yours,
Laurence H. Tribe.
XI. Executive Agency Comments on S. 385
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, April 29, 1999.
Hon. Edward M. Kennedy,
Ranking Minority Member, Committee on Health, Education, Labor and
Pensions, U.S. Senate, Washington, DC.
Dear Senator Kennedy: This letter sets forth the views of
the Office of Legal Counsel on the Safety Advancement for
Employees Act of 1999 (``SAFE Act''), S. 385. Due to time
constraints, our comments are necessarily preliminary. The
scheme established by the SAFE Act appears to be a novel one,
and it is therefore difficult to predict how a court would
assess its constitutionality. S. 385 does, however, appear to
raise substantial constitutional concerns involving the
separation of powers.
Section 3 of S. 385 would establish a ``third party
consultation services program'' under the Occupational Safety
and Health Act of 1970 (``OSH Act''), 29 U.S.C. Sec. Sec. 651
et seq. Under that program, an employer may contract with a
private ``consultant,'' who would conduct an ``evaluation of
the workplace of an employer to determine if the employer is in
compliance with the requirements of [the OSH Act], including
any regulations promulgated pursuant to [the] Act.'' Section
3(a) (adding sec. 8A(e)(1)). If an employer receives a
``certificate of compliance'' from the consultant, the
``employer shall be exempt from the assessment of any civil
penalty under section 17 for a period of 1 year after the date
on which the employer receives such certificate.'' Id. (sec.
8A(f)(1)). There are two exceptions to an employer's one-year
exemption from civil penalties: (1) ``if the employer has not
made a good faith effort to remain in compliance as required
under the certificate of compliance''; and (2) ``to the extent
that there has been a fundamental change in the hazards of the
workplace.'' Id. (sec. 8A(f)(2)).
The bill provides that consultants must be certified by the
Secretary of Labor to provide consultation services, and it
lists categories of professionals who shall be eligible for
such certification, including state-licensed physicians,
engineers, safety professionals, occupational nurses, and
persons qualified in an occupational health or safety field by
an organization whose program has been accredited by a
nationally recognized private accreditation organization or by
the Secretary. Id. (sec. 8A(b)(2)). Finally, the Secretary may
revoke the status of a qualified consultant if the consultant
``has failed to meet the requirements of the program'' or ``has
committed malfeasance, gross negligence, collusion or fraud in
connection with any consultation services provided by the
qualified consultant.'' Id. (sec. 8A(d)).
The Constitution establishes a system of separate powers,
and it provides that ``[t]he executive Power shall be vested in
a President of the United States of America,'' U.S. Const. art.
II, Sec. 1, who ``shall take Care that the Laws be faithfully
executed,'' id. art. II. Sec. 3. A statute violates the
separation of powers if it `` `impermissibly undermine[s]' the
powers of the Executive Branch, * * * or `disrupts the proper
balance between the coordinate branches [by] prevent[ing] the
Executive Branch from accomplishing its constitutionally
assigned functions. * * *' '' Morrison v. Olson, 487 U.S. 654,
695 (1988) (citations omitted).
The SAFE Act implicates these principles because it
delegates to private entities outside the executive branch
substantial authority to execute the laws. The functions
permitted to be carried out by consultants under the bill are
central executive functions. Indeed, ``[i]nterpreting a law
enacted by Congress to implement the legislative mandate is the
very essence of `execution' of the law. Bowsher v. Synar, 478
U.S. 714, 733 (1986). Private consultants under the bill would
be doing precisely what executive agencies typically do:
administer a federal regulatory program by determining whether
individuals are in compliance with a federal statute and
regulations. Moreover, the bill would constrain the executive
branch's implementation of the law in a tangible way--by making
employers exempt for a period of one year from civil penalties
otherwise assessable under the OSH Act.\1\
---------------------------------------------------------------------------
\1\ Section 17 of the OSH Act, 29 U.S.C. Sec. 666, provides for
various civil penalties for violations of the Act. It also provides for
criminal penalties for willful violations resulting in an employee's
death, for giving unauthorized advance notice of an OSHA inspection,
and for false statements. Certification by a private consultant under
this proposal would not exempt employers from criminal penalties.
---------------------------------------------------------------------------
Delegating some executive functions to entities outside the
executive branch does not necessarily violate the Constitution.
In Morrison v. Olson, the Court upheld the grant of
investigative and prosecutorial authority under the Ethics in
Government Act to the independent counsel, an individual
neither appointed nor removable at will by the President. The
Court concluded that the statute did not prevent the executive
branch from performing its constitutionally assigned duties,
emphasizing the degree of control retained by the Attorney
General in initiating an investigation and in being able to
remove the independent counsel for ``good cause.'' 487 U.S. at
695-96; see also United States ex rel. Kelly v. Boeing Co. 9
F.3d 743 (9th Cir. 1993) (upholding delegation of litigation
authority on behalf of the United States to private individuals
under qui tam provisions of the False Claims Act).
Another common form of delegation that generally does not
present a constitutional problem is the grant of authority to
private parties (or to state, local, or tribal officials) to
stop federal action by declining to consent to it. Such
legislation ``merely sets a condition on the executive branch's
exercise of authority that the executive would not possess at
all in the absence of the legislation.'' Memorandum for the
General Counsels of the Federal Government from Walter
Dellinger, Assistant Attorney General, Office of Legal Counsel,
Re: The Constitutional Separation of Powers Between the
President and Congress 58 n.135 (May 7, 1996) (``Dellinger
Memo''). Thus, in upholding a statute requiring a supermajority
of regulated farmers to agree before the Secretary of
Agriculture could exercise certain powers, the Supreme court
rejected the argument that the statute impermissible delegated
legislative power: ``Congress has merely placed a restriction
upon its own regulation by withholding its operation as to a
given market `unless two-thirds of the growers voting favor
it.' '' Currin v. Wallace, 306 U.S. 1, 15 (1939).\2\
---------------------------------------------------------------------------
\2\ Currin and similar decisions address the nondelegation
doctrine, which prohibits standardless grants of legislative power,
rather than theimpairment of executive power under separation of powers
principles. The nondelegation doctrine is essentially moribund in the
courts, see, e.g., Yakus v. United States, 321 U.S. 414 (1944)
(upholding broad delegation), but for reasons parallel to those the
Court relied on in Currin, we think that the growers' ``veto'' at issue
there would not violate the separation of powers. See Memo at 58 n.135.
---------------------------------------------------------------------------
The SAFE Act would effect a type of delegation to private
entities that is somewhat different from those addressed by the
authorities of which we are aware. See generally Harold J.
Krent, Fragmenting the Unitary Executive: Congressional
Delegations of Administrative Authority Outside the Federal
Government, 85 Nw. U. L. Reve. 62, 84-93 (1990) (surveying
congressional delegations to private entities). The bill
appears to go beyond other examples of such delegation in
impairing the ability of the executive branch to execute the
laws. First, the functions given to private consultants under
the bill are more in the nature of execution of the laws than,
for example, the authority of an industry to ``veto'' the
substance of the proposed regulation in Currin. The SAFE Act,
like the ``veto'' legislation, can be viewed as imposing a
condition on Congress's regulation of a certain field
(workplace safety) that Congress could choose not to regulate
at all, but the condition here works in a different manner.
While the ``veto'' legislation involves whether the law applies
to a particular group, the SAFE Act implicates the Secretary's
power to make case-by-case determinations as to whether
admittedly applicable law has been violated.
Second, the authority given to consultants under the SAFE
Act would be particularly broad-based. It is not merely
authority over a specified industry, or particular technical
matters (although the bill does provide that consultants may
only provide services coinciding with their expertise), but
authority to determine employers' compliance with the entirety
of the OSH Act and regulations under that Act.\3\ Cf. A.L.A.
Schechter Poultry Corp. v. United States, 295 U.S. 495, 537
(1935) (suggesting that ``matters of a more or less technical
nature'' could be delegated to private parties).
---------------------------------------------------------------------------
\3\ Under section 5 of the OSH Act, 29 U.S.C. Sec. 654, each
employer has a general duty to furnish employees with employment and a
workplace ``free from recognized hazards that are causing or are likely
to cause death or serious physical harm to his employees,'' id.
Sec. 654(a)(1), as well as a duty to comply with specific occupational
safety and health standards promulgated by regulation, id.
Sec. 654(a)(2).
---------------------------------------------------------------------------
Third, the limited degree of executive branch control over
the consultants' exercise of authority for which the proposal
provides may not be constitutionally adequate. It is true that
consultants would have to be certified by the Secretary of
Labor, and could be de-certified for ``malfeasance'' or other
reasons. In addition, the Secretary would retain certain
limited authority with respect to employers that have
contracted with consultants, including the authority to impose
criminal penalties and to ``inspect and investigate'' worksites
covered by a certificate of compliance. But the bill provides
for no executive branch supervision of the day-to-day
activities of consultants determining compliance with the OSH
Act. Moreover, if a consultant had issued a certificate of
compliance, then OSHA could not impose any civil penalties upon
an employer for a year, so a de-certification of the consultant
would do little to protect the executive's authority with
respect to particular violations.
By eliminating the executive's control over the enforcement
of the law, the bill would threaten one of the core values
protected by the Constitution's placement of the executive
power in a single President: political accountability. Because
these private consultants would not be directly responsible to
the President, the public's ultimate check on negligent or
arbitrary government action would be weakened.Hamilton's
objection in Federalist No. 70 to a plural executive also has
some bearing here. Use of private consultants to certify OSH
Act compliance risks creating a situation in which
accountability ``is shifted from one to another with so much
dexterity, and under such plausible appearances, that the
public opinion is left in suspense about the real author. * * *
[I]t may be impracticable to pronounce to whose account the
evil which may have been incurred is truly chargeable.'' The
Federalist No. 70, at 427-28 (Clinton Rossiter ed., 1961).
For these reasons, we have seroius reservations about the
constitutionality of the SAFE Act. Please do not hesitate to
call upon us if we may be of additional assistance. The Office
of Management and Budget advises that there is no objection to
submission of this report and that enactment of S. 385 would
not be in accord with the Administration's program.
Sincerely,
Jon P. Jennings,
Acting Assistant Attorney General.
XII. Change 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 or 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 ACT OF 1970
* * * * * * *
Section 1. * * *
* * * * * * *
congressional findings and purpose
Sec. (2) * * *
* * * * * * *
(13) by encouraging joint labor-management efforts to
reduce injuries and disease arising out of employment;
[and]
(14) by increasing the joint cooperation of
employers, employees, and the Secretary of Labor in the
effort to ensure safe and healthful working conditions
for employees.
* * * * * * *
advisory committees; administration
Sec. 7. (a)(1) * * *
* * * * * * *
(d)(1) Not later than 6 months after the date of enactment
of this subsection, the Secretary shall establish an advisory
committee (pursuant to the Federal Advisory Committee Act (5
U.S.C. App.)) to carry out the duties described in paragraph
(3).
(2) the advisory committee shall be composed of--
(A) 3 members who are employees;
(B) 3 members who are employers;
(C) 2 members who are members of the general public;
and
(D) 1 member who is a State official from a State
plan State.
Each member of the advisory committee shall have expertise in
workplace safety and health as demonstrated by the educational
background of the member.
(3) The advisory committee shall advise and make
recommendations to the Secretary with respect to the
establishment and implementation of a consultation services
program under section 8A.
INSPECTIONS, INVESTIGATIONS, AND RECORDKEEPING
Sec. 8. (a) * * *
* * * * * * *
(f)(1) * * *
* * * * * * *
(3) The Secretary or an authorized representative of the
Secretary may, as a method of investigating an alleged
violation or danger under this subsection, 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 an inspection
under this subsection if the Secretary determines that a
request for an 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.
* * * * * * *
(i) Any Federal employee responsible for enforcing this Act
shall, not later than 2 years after the date of enactment of
this subsection or 2 years after the initial employment of the
employee involved, meet the eligibility requirements prescribed
under subsection (b)(2) of section 8A.
(j) The Secretary shall ensure that any Federal employee
responsible for enforcing this Act who carries out inspections
or investigations under this section, receive professional
education and training at least every 5 years as prescribed by
the Secretary.
SEC. 8A. THIRD PARTY CONSULTATION SERVICES PROGRAM.
[(a) Purpose. recognizing that
[(1) employee safety is of paramount concern;
[(2) employers are overburdened by regulations and are
unable to read through, understand and effectively
comply with the voluminous requirements of this Act,
and
[(3) the Secretary is unable to individually satisfy
the compliance needs of each employer and employee
within its jurisdiction;
it is]
(a) Purpose.--It is the purpose of this section to
encourage employees to conduct voluntary safety and health
audits using the expertise of qualified safety and health
consultants and to proactively seek individualized solutions to
workplace safety and health concerns.
(b) Establishment of Program.--
(1) In general.--Not later than 18 months after the
date of enactment of this section, the Secretary, in
consultation with the advisory committee established
under section 7(d), shall establish and implement, by
regulation, a program that qualifies individuals to
provide consultation services to employers to assist
employers in the identification and correction of
safety and health hazards in the workplaces of
employers.
(2) Eligibility.--The following individuals shall be
eligible to be qualified under the program under
paragraph (1) as certified safety and health
consultants:
(A) An individual who is licensed by a State
authority as a physician, industrial hygienist,
professional engineer, safety engineer, safety
professional, or registered nurse.
(B) An individual who has been employed as an
inspector for a State plan State or as a
Federal occupational safety and health
inspector for not less than a 5-year period.
(C) An individual who is qualified in an
occupational health or safety field by an
organization whose program has been accredited
by a nationally recognized private
accreditation organization or by the Secretary.
(D) An individual who has not less than 10
years expertise in workplace safety and health.
(E) Other individuals determined to be
qualified by the Secretary.
(3) Geographical scope of consultation services.--A
consultant qualified under the program under paragraph
(1) may provide consultation services in any State.
(4) Limitation based on expertise.--A consultant
qualified under the program under paragraph (1) may
only provide consultation services to an employer with
respect to a worksite if the work performed at that
worksite coincides with the particular expertise of the
individual.
(c) Safety and Health Registry.--The Secretary shall
develop and maintain a registry that includes all consultants
that are qualified under the program under subsection (b)(1) to
provide the consultation services described in subsection (b)
and shall publish and make such registry readily available to
the general public.
(d) Disciplinary Actions.--The Secretary may revoke the
status of a consultant qualified under subsection (b), or the
participation of an employer under subsection (b) in the third
party consultation program, if the Secretary determines that
the consultant or employer--
(1) has failed to meet the requirements of the
program; or
(2) has committed malfeasance, gross negligence,
collusion or fraud in connection with any consultation
services provided by the qualified consultant.
(e) Program Requirements.--
(1) Full service consultation.--The consultation
services described in subsection (b), and provided by a
consultant qualified under the program under subsection
(b)(1), shall include an evaluation of the workplace of
an employer to determine if the employer is in
compliance with the requirements of this Act, including
any regulations promulgated pursuant to this Act.
Employers electing to participate in such program shall
contract with a consultant qualified under subsection
(b)(2) to perform a full service visit and consultation
covering the employer's establishment, including a
complete safety and health program review. Following
the guidance as specified in this section, the
consultant shall discuss with the employer the elements
of an effective program.
(2) Consultation report.--
(A) In general.--After a consultant conducts
a comprehensive survey of an employer under a
program under this section, the consultant
shall prepare and submit to the employer a
written report that includes an action plan
identifying any violations of this Act, and any
appropriate corrective measures to address the
violations that are identified using and
effective safety and health program.
(B) Elements.--A consultation report shall
contain each of the following elements.
(i) Action plan.--
(I) In general.--An action
plan under subparagraph (A)
shall be developed in
consultation with the employer
as part of the initial
comprehensive survey. The
consultant and the employer
shall jointly use the on site
time in the initial visit to
the employer's place of
business to agree on the terms
of the action plan and the time
frames for achieving specific
items.
(II) Requirements.--The
action plan shall outline the
specific steps that must be
accomplished by the employer
prior to receiving a
certificate of compliance. The
action plan shall address in
detail
(aa) the employer's
correction of all
identified safety and
health hazards, with
applicable time frames;
(bb) the steps
necessary for the
employer to implement
an effective safety and
health program, with
applicable time frames;
and
(cc) a statement of
the employer's
commitment to work with
the consultation
project to achieve a
certificate of
compliance.
(ii) Safety and health program.--An
employer electing to participate in a
program under this section shall
establish a safety and health program
to manage workplace safety and health
to reduce injuries, illnesses and
fatalities that complies with paragraph
(3). Such safety and health program
shall be appropriate to the conditions
of the workplace involved.
(3) Requirements for safety and health program.--
(A) Written program.--An employer electing to
participate shall maintain a written safety and
health program that contains policies,
procedures, and practices to recognize and
protect their employees from occupational
safety and health hazards. Such procedures
shall include provisions for the
identification, evaluation and prevention or
control of workplace hazards.
(B) Major elements.--A safety and health
program shall include the following elements,
and may include other elements as necessary to
the specific worksite involved and as
determined appropriate by the qualified
consultant and employer:
(i) Employer commitment and employee
involvement.--
(I) In general.--The
existence of both management
leadership and employee
participation must be
demonstrated in accordance with
subclauses (II) and (III).
(II) Management leadership.--
To make a demonstration of
management leadership under
this subclause, the employer
shall--
(aa) set a clear
worksite safety and
health policy that
employees can fully
understand;
(bb) set and
communicate clear goals
and objectives with the
involvement of
employees;
(cc) provide
essential safety and
health leadership in
tangible and
recognizable ways;
(dd) set positive
safety and health
examples; and
(ee) perform
comprehensive reviews
of safety and health
programs for quality
assurance using a
process which promotes
continuous correction.
(III) Employee
participation.--With respect to
employee participation, the
employer shall demonstrate a
commitment to working to
develop a comprehensive,
written and operational safety
and health program that
involves employees in
significant ways that affect
safety and health. In making
such a demonstration, the
employer shall--
(aa) provide for
employee participation
in actively identifying
and resolving safety
and health issues in
tangible ways that
employees can clearly
understand;
(bb) assign safety
and health
responsibilities in
such a way that
employees can
understand clearly what
is expected of them;
(cc) provide
employees with the
necessary authority and
resources to meet their
safety and health
responsibilities; and
(dd) provide that
safety and health
performance for
managers, supervisors
and employees be
measured in tangible
ways.
(ii) Workplace analysis.--The
employer, in consultation with the
consultant, shall systematically
identify and assess hazards in the
following ways:
(I) Conduct corrective action
and regular expert surveys to
update hazard inventories.
(II) Have competent personnel
review every planned or new
facility, process material, or
equipment.
(III) Train all employees and
supervisors, conduct routine
joint inspections, and correct
items identified.
(IV) Establish a way for
employees to report hazards and
provide prompt responses to
such reports.
(V) investigate worksite
accidents and near accidents.
(VI) Provide employees will
the necessary information
regarding incident trends,
causes and means of prevention.
(iii) Hazard prevention.--The
employer, in consultation with the
consultant, shall--
(I) engage in timely hazard
control, working to ensure that
hazard controls are fully in
place and communicated to
employees, with emphasis on
engineering controls and
enforcing safe work procedures;
(II) maintain equipment using
operators who are trained to
recognize maintenance needs and
perform or direct timely
maintenance;
(III) provide training on
emergency planning and
preparation, working to ensure
that all personnel know
immediately how to respond as a
result of effective planning,
training, and drills;
(IV) equip facilities for
emergencies with all systems
and equipment in place and
regularly tested so that all
employees know how to
communicate during emergencies
and how to use equipment; and
(V) provide for emergency
medical situations using
employees who are fully trained
in emergency medicine.
(iv) Safety and health training.--The
employer, in consultation with the
consultant, shall--
(I) involve employees in
hazard assessment, development
and delivery of training;
(II) actively involve
supervisors in worksite
analysis by empowering them to
ensure physical protections,
reinforce training, enforce
discipline, and explain work
procedures; and
(III) provide training in
safety and health management to
managers.
(4) Reinspection.--At a time agreed to by the
employer and the consultant may reinspect the workplace
of the employer to verify that the required elements in
the consultation report have been satisfied. If such
requirements have been satisfied, the employer shall be
provided with a certificate of compliance for that
workplace by the qualified consultant.
(f) Exemption From Civil Penalties for Compliance.--
(1) In general.--If an employer enters into a
contract with an individual qualified under the program
under this section, to provide consultation services
described in subsection (b), and receives a certificate
of compliance under subsection (e)(4), the employer
shall be exempt from the assessment of any civil
penalty under section 17 for a period of 1 year after
the date on which the employer receives such
certificate.
(2) Exceptions.--An employer shall not be exempt
under paragraph (1)--
(A) if the employer has not made a good faith
effort to remain in compliance as required
under the certificate of compliance; or
(B) to the extent that there has been a
fundamental change in the hazards of the
workplace.
(g) Right To Inspect.--Nothing in this section shall be
construed to affect the rights of the Secretary to inspect and
investigate worksites covered by a certificate of compliance.
(h) Renewal Requirements.--An employer that is granted a
certificate of compliance under this section may receive a 1
year renewal of the certificate if the following elements are
satisfied:
(1) A qualified consultant shall conduct a complete
onsite safety and health survey to ensure that the
safety and health program has been effectively
maintained or improved, workplace hazards are under
control, and elements of the safety and health program
are operating effectively.
(2) The consultant, in an onsite visit by the
consultant, has determined that the program
requirements have been complied with and the health and
safety program has been operating effectively.
(i) Non-fixed Work Sites.--With respect to employer
worksites that do not have a fixed location, a certificate of
compliance shall only apply to that worksite which satisfies
the criteria under this section and such certificate shall not
be portable to any other worksite. This section shall not apply
to service establishments that utilize essentially the same
work equipment at each non-fixed worksite.
CITATIONS
Sec. 9. [(a) 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) 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.
(2) Except as provided in paragraph (3), if, upon an
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 a 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.
(3) 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 and 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 repeated violation.
* * * * * * *
(d) A citation issued under subsection (a) to an employer
who violates section 5, 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 the employees of such employer were protected
by alternative methods that are equally or more protective of
the safety and health of the employees than the methods
required by such standard, rule, order, or regulation in the
factual circumstances underlying the citation.
(e) Subsection (d) shall not construed to eliminate or
modify other defenses that may exist to any citation.
training and employee education
Sec. 21. (a) * * *
* * * * * * *
[(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.
(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 for the provision of
consultation services under such agreement.
(ii) A State shall be reimbursed by the Secretary for 90
percent of the costs incurred by the State for the provision
of--
(I) training approved by the Secretary for State
personnel operating under a cooperative agreement; and
(II) specified out-of-State travel expenses incurred
by such personnel.
(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 clause (ii).
(d)(1) Not later than 90 days after the date of enactment
of this subsection, the Secretary shall establish and carry out
a pilot program in 3 States to provide expedited consultation
services, with respect to the provision of safe and healthful
working conditions, to employers that are small businesses (as
the term is defined by the Administrator of the Small Business
Administration). The Secretary shall carry out the program for
a period of not of exceed 2 years.
(2) The Secretary shall provide consultation services under
paragraph (1) not later than 4 weeks after the date on which
the Secretary receives a request from an employer.
(3) The Secretary may impose a nominal fee to an employer
requesting consultation services under paragraph (1). The fee
shall be in an amount determined by the Secretary. Employers
paying a fee shall receive priority consultation services by
the Secretary.
(4) In lieu of issuing a citation under section 9 to an
employer for a violation found by the Secretary during a
consultation under paragraph (1), the Secretary shall permit
the employer to carry out corrective measures to correct the
conditions causing the violation. The Secretary shall conduct
not more than 2 visits to the workplace of the employer to
determine if the employer has carried out the corrective
measures. The Secretary shall issue a citation as prescribed
under section 5 if, after such visits, the employer has failed
to carry out the corrective measures.
(5) Not later than 90 days after the termination of the
program under paragraph (1), the Secretary shall prepare and
submit a report to the appropriate committees of Congress that
contains an evaluation of the implementation of the pilot
program.
[(d)(1)] (e)(1) The Secretary shall establish and support
cooperative agreements with the States under which employers
subject to this Act may consult with State personnel with
respect to--
* * * * * * *
SEC. 35. ALCOHOL AND SUBSTANCE ABUSE TESTING.
(a) Program Purpose.--In order to secure a safe workplace,
employers may establish and carry out an alcohol and substance
abuse testing program in accordance with subsection (b).
(b) Federal Guidelines.--
(1) Requirements--An alcohol and substance abuse
testing program described in subsection (a) shall meet
the following requirements:
(A) Substance abuse.--A substance abuse
testing program shall permit the use of an
onsite or offsite testing.
(B) Alcohol.--The alcohol testing component
of the program shall take the form of alcohol
breath analysis and shall conform to any
guidelines developed by the Secretary of
Transportation for alcohol testing of mass
transit employees under the Department of
Transportation and Related Agencies
Appropriations Act, 1992.
(2) Definition.--For purposes of this section the
term ``alcohol and substance abuse testing program''
means any program under which test procedures are used
to take an analyze blood, breath, hair, urine, saliva,
or other body fluids or materials for the purpose of
detecting the presence or absence of alcohol or a drug
or its metabolites. In the case of urine testing, the
confirmation tests must be performed in accordance with
the mandatory guidelines for Federal workplace testing
programs published by the Secretary of Health and Human
Services on April 11, 1988, at section 11979 of title
53, Code of Federal Regulations (including any
amendments to such guidelines). Proper laboratory
protocols and procedures shall be used to assure
accuracy and fairness and laboratories must be subject
to the requirements of subpart B of the mandatory
guidelines, State certification, the Clinical
Laboratory Improvements Act of the College of American
Pathologists.
(c) Test Requirements.--This section shall not be construed
to prohibit an employer from requiring--
(1) an applicant for employment to submit to and pass
an alcohol or substance abuse test before employment by
the employer; or
(2) an employee, including managerial personnel, to
submit to and pass an alcohol substance abuse test--
(A) on a for-cause basis or where the
employer has reasonable suspicion to believe
that such employee is using or is under the
influence of alcohol or a controlled substance;
(B) where such test is administered as part
of a scheduled medical examination;
(C) in the case of an accident or incident,
involving the actual or potential loss of human
life, bodily injury, or property damage;
(D) during the participation of an employee
in an alcohol or substance abuse treatment
program, and for a reasonable period of time
(not to exceed 5 years) after the conclusion of
such program; or
(E) on a random selection basis in work
units, locations, or facilities.
(d) Construction.--Nothing in this section shall be
construed to require an employer to establish an alcohol and
substance abuse testing program for applicants or employees or
make employment decisions based on such test results.
(e) Preemption.--The provisions of this section shall not
preempt any provision of State law to the extent that such
State law is inconsistent with this section.
(f) Investigations.--The Secretary is authorized to conduct
testing of employees (including managerial personnel) of an
employer for use of alcohol or controlled substances during any
investigations of a work-related fatality or serious injury.