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Published: January, 2006; Vol 2, Num 8

Senate May Consider OSHA Reform Legislation

A series of anti-worker OSHA reform measures – some of which passed the House last summer – gained more traction last month as Senator Mike Enzi (R – WY) introduced them in the Senate. The measures are opposed by the AFL-CIO, which plans to mount a major campaign against the two bills.

Enzi justified his proposals, saying, “Cooperation, not confrontation, is essential in making our workplaces safer. The notion that employers care little about worker safety or are prepared to sacrifice worker health in pursuit of profit, is a dangerous myth.”

Contradicting Enzi, LIUNA General President Terence M. O’Sullivan says, “Enzi is using the forest to hide the trees. Most employers do care about worker safety, but there are many who sacrifice it for profit. No one supports cooperation between labor and management more than the Laborers – and, through our Health and Safety Fund, we do it every day – but we know regulation and the threat of significant penalties are vital to protect American workers from a significant group of employers who really don’t care.”

[Indeed, because even existing OSHA enforcement is so slack, a trend of state-enforced criminal liability for companies whose employees are killed on the job has emerged in recent years (see States Pursuing Prosecutions against Corporations...)].

S. 2065

Under the claim of “enhancing voluntary compliance and providing technical assistance to employers that strive to ensure the health and safety of their employees,” Enzi’s Occupational Safety Partnership Act (S. 2065) would expand support – government assistance, an OSHA-business community cross-training/exchange program, and the benefits of the Voluntary Protection Plan (VVP) – to smaller businesses while also removing some barriers to employer-established drug and alcohol testing programs and encouraging the use of third-party safety consultants.

The latter provision, in particular, has drawn criticism from safety and health advocates. They say the bill is designed to allow companies to self-certify safety compliance through the hiring of “independent” consultants who would certify that the company’s employees are “protected by alternative methods equivalent or more protective of the workers’ safety and health” than OSHA’s own standards. Such certification would protect the company from an OSHA citation for two years.

While Enzi asserts that the proposal would expand workers’ safety and health protection by augmenting OSHA’s meager enforcement capacity with voluntary compliance programs, critics claim the program marks a return to the “company doctor” approach that prevailed before federal regulation in 1972.

“All a company needs to do,” says O’Sullivan, “is find a “professional” with a ‘flexible’ perspective and pay him to certify that the company has a sound approach to health and safety. If it disagrees, OSHA will have to go to court, and, given the agency’s small enforcement budget, that’s just not going to happen. In effect, Enzi is trying to eliminate government regulation and replace it with unsupervised, private company self-managed workplace safety and health.”

Critics also complain that OSHA’s VVP programs – all established since the Bush administration came to Washington – do not work well. In this contention, they are supported by a 2004 Government Accountability Office study which urged that the programs be evaluated before they are further expanded.

Enzi also withdrew two provisions contained in an earlier version of his bill that might have kept some pressure on employers. One would have required employers to adopt a comprehensive company safety and health program. The other would have made criminal violations under the OSHA act felonies instead of misdemeanors, as under present law.

S. 2066

Enzi’s second bill – the Occupational Safety Fairness Act (S. 2066) – is designed to help small businesses that, he says, find the “regulatory power and resources of the federal government” overwhelming. It would increase the size and independence of the Occupational Safety and Health Review Commission (OSHRC), the body that handles appeals of OSHA citations by employers. The newly-nominated head of OSHA, Edwin Foulke, is a former OSHRC commissioner.

The bill would also allow a small business to recover its attorney fees if it prevails in an appeal at the OSHRC, even if OSHA’s case was substantially justified by the facts presented at the hearing. “No one can know in advance,” says O’Sullivan, “how a judge will decide any particular case. But making OSHA pay attorneys’ fees for every OSHA loss, even when the case is well-justified, is going to further dampen the agency’s enforcement activity.”

While putting a chill on OSHA enforcement relative to employers, S. 2066 would open a new role for OSHA enforcement with regard to workers’ use of personal protection equipment (PPE). Under the proposal, employees that violate company PPE rules could receive OSHA citations and limited fines.

Enzi, who chairs the Senate Health, Education and Pensions Committee, and his co-sponsors – all Republicans – hope to move the bills through the Senate in the coming session. So far, however, it is unclear what kind of support the bills may have in the committee or in the full Senate.