Proposed OSH Act Overhaul Raises Concerns And Spurs NECA Action
Only minor changes have been made to the Occupational Safety and Health (OSH) Act over the past 39 years since its passage. (The most recent amendment, added in 2002, merely expands research on “the health and safety of workers who are at risk of bioterrorist attacks in the workplace.”)
However, earlier this spring, Rep. Lynn Woolsey (D, CA-6) introduced the “Protecting American Workers Act of 2009” (HR 2067) which would overhaul the OSH Act in worrisome ways. It is predicated on the presumption that employees are reluctant to report their employers’ safety violations and therefore calls for increased protections for whistleblowers. Of greater concern is that it would position OSHA to abandon its cooperative outreach to employers and industry advocates such as NECA and take a more drastic pro-enforcement and punitive approach to its work.
In addition to bringing more workers under OSH Act coverage (such as federal and state government employees), the legislation would also subject more people to potential punishment for perceived violations. For example, corporate officers who are not directly involved with worksite conditions would lose their current immunity and could be held liable for OSH Act violations if HR 2067 passes.
The bill also calls for substantially increased penalties on employers. The top fine for “serious” violations (where there is a substantial probability that death or serious physical harm could result from failure to comply with OSHA regulations) would increase from $7000 to $12,000. The maximum monetary penalty for “willful” or repeated serious violations would go from $70,000 to $120,000.
As under current law, the fine could be multiplied by the number of employees exposed to the hazard(s) associated with the violation. However, the bill goes further by giving workers and their families an avenue for challenging reductions in the fines OSHA assesses on employers.
And one of the most troublesome prospects is that some violations that are currently considered misdemeanors would be labeled as felonies if the legislation becomes law. Willful and serious violations would be transferred to the Department of Justice for prosecution, with potential sentences including up to 10 years imprisonment in cases involving worker fatalities.
We are also concerned by recent activities which may mark a drastic departure away from an OSHA that worked with industry to develop voluntary programs (which had been successful in reducing accidents and injuries) and a move toward an enforcement “command and control” agency. These include OSHA’s plan to re-evaluate Voluntary Protection Programs to determine how much of the agency’s resources will be spent on cooperative programs as opposed to enforcement. Another cause for concern are recent proposals to change the OSHA Field Operations Manual for its compliance officers so that employers could be cited for ergonomic hazards and workplace violence under the “General Duty Clause” of the OSH Act.
If OSHA sacrifices cooperative activities in order to put more emphasis on enforcement, alliances such as our Transmission & Distribution Partnership could suffer. (The T&D Partnership is a voluntary collaboration among OSHA and stakeholders in the line construction industry, including NECA and leading members of NECA District 10.)
NECA Standards & Safety, Government Affairs and Labor Relations teams, as well as concerned NECA-member contractors serving on related national standing committees, are actively monitoring activities at OSHA and the progress of the legislation to ensure that our members’ interests are being represented. Though OSHA's leadership is still in transition, we are reaching out to the agency to persuade its officials that employee safety is best achieved when OSHA is a participant in the process and not exclusively an enforcer of regulations. More to the point, we are working to develop an appropriate response strategy to oppose HR 2067. Stay tuned.
