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New prescriptions for a healthier OSHA
New Prescriptions For A Healthier OSHA Kenneth A. Kovach, Judith A. Sullivan, Thomas M. Alston, and Nancy Greer Hamilton
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ith lofty intent, Congress passed the Occupational Safety and Health Act in 1970. Its stated goal was “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” Yet the legislative vision that created the Occupational Safety and Health Administration (OSHA), saved numerous Americans’ lives, and cut the number of U.S. workplace fatalities by half every year has not immunized OSHA from the familiar bureaucratic virus that causes feverish paperwork and painful government rules. Even its home within the Department of Labor has offered no protection from critics distressed at how far an infected OSHA has mutated from its original mandate to protect workers, Irritated business owners vehemently protest the inordinate burden of more than 4,000 abstruse and often contradictory regulations OSHA imposes, not to mention the several hundred billion dollars they have directed toward compliance with OSHA’s rules. On-the-job deaths have declined; supporters offer an impressive and declining workplace fatality rate since OSHA began (from 17 to 8 deaths per 100,000 workers). But workplace injuries have increased, with the Bureau of Labor Statistics pointing to a 15 percent increase in workplace injuries since 1972. Inside OSHA itself, inspectors have not found a cure for the sheer volume of paperwork their written violations generate. Incredibly, 50 percent of the time those violations cite companies for incorrectly written forms! Nor have inspectors developed an antibody to reduce the inordinate time they spend measuring the heights of railings. Several members of Congress are seeking to recapture the original focus of OSHA and have proposed legislation to reconstitute it. As we explore the prescriptions contained in House and Senate initiatives, we present a range of reactions New Prescriptions
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OSHA
and conclude with a brief personal commentary on whether these legislative efforts can restore the health of OSHA and continue to sustain workplace safety. THE BILLS BEFORE CONGRESS
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ntroduced to the House of Representatives in the summer of 1995, the Safety and Health Improvement and Regulatory Reform Act (H.R. 1834) preceded the Senate’s version of the Occupational Safety and Health Reform and Reinvention Act (S. 1423) by five months. Numerous features reveal a concordance between the Senate version, authored by Nancy Kassebaum (R-Kansas), and the House version, put forth by Cass Ballenger (R-North Carolina). The conspicuous inclusion of the word “reform” in both titles leaves no doubt as to their similar emphasis: l the formation of labor-management committees to discuss safety issues in the workplace through an amendment to the National Labor Relations Act (NLRA); l the protection of small farms and businesses from random OSHA safety inspections when their lost workday rate exceeds their industry average (H.R. 1834 limits a “small” business to fewer than 50 employees, S. 1423 to fewer than 10); l the support of voluntary compliance through third-party certification and the exemption of companies from subsequent inspection; l the granting of legal privilege to a company seeking to avoid self-disclosure of its safety and health audits; l the permission to provide alternative meth45
ods of worker protection equivalent to those required by OSHA regulations; l the reduction in status of a violation to a lower warning level, when no serious injury or death occurs (before issuing a citation, H.R. 1834 would issue a warning and allow time for abatement); l the limitation of fines to serious violations (H.R. 1834’s penalties for posting and paperwork violations would require demonstrating fraudulent intent; S. 1423 decreases those same penalties to $100); l the codification of OSHA’s consultation program that funds state compliance programs assisting small businesses, as well as the codification of the Voluntary Protection Program (VPP) that acknowledges workplaces committed to safety and health with exemptions from routine OSHA inspections; l the extension of OSHA coverage to federal government workers.
Special Provisions Of S. 1423 The Senate version specifies three noteworthy inclusions not found in H.R. 1834. The first provision removes quotas from OSHA inspectors’ duties. The second allows a telephone or facsimile consultation to substitute for an on-site inspection arising from a health or safety violation reported by an employee. The third lowers the cost of a penalty resulting from a violation if a certified third-party safety and health consultant performs the inspection, or if the company furnishes employees with an effective health and safety program.
Special Provisions Of H.R. 1834 The House version adds a longer list of provisions: l the requirement for employees to file health or safety complaints with their employer first, and the permission and opportunity for that employer to rectify the violation identifiedbefore the company has to involve OSHA; l the elimination of NIOSH (the National Institute for Occupational Safety and Health), which performs research into workplace hazards (such as epidemiological, laboratory, and engineering studies), validates their significance, and establishes standards for identified hazards;
l the foundation of all current and future standards to be based on risk assessment studies and cost-benefit analyses; l the removal of penalties for general duty clause violations and assessments in areas where no standard or regulation exists; l the reallocation of OSHA funds. In three years, half of OSHA’s budget would be directed toward non-enforcement activities, such as education and consultation activities (S. 1423 would stipulate 15 percent of OSHA’s funds toward those practices); l the separation of “willful” and “repeat” in penalty definitions and an increase in the penalties attached to serious violations; l the permission for employers to conduct drug tests within their job groups when drug or alcohol abuse could reasonably be expected to endanger the safety and health of any employee; l the consolidation of the Mine Safety and Health Administration (MSHA) with OSHA, and the reduction of mine inspections to once yearly (current examination schedules include four annual inspections); l a reduction in the present mandatory reporting and recording procedures that would limit notification to those injuries and illnesses requiring medical treatment and involving at least one or more days of lost or restricted work.
Support And Criticism Both bills have drawn praise from industry representatives and Republicans, who liken the redirection of OSHA to a consultative capacity and away from its present enforcement role. Members of Congress, as well as the AFL-CIO, occupational safety experts, and various business groups, have all contributed strong positive and negative opinions. The National Association of Manufacturers and the National Grocers’ Association has commended the bills for their streamlining of excessive OSHA regulations. Republican endorsers such as Congressman Ballenger and Senator Judd Gregg (R-New Hampshire) say the bills re-focus OSHA “back on safety and health, rather than on collecting penalties,” and “provide incentives for the private sector to act more responsibly.” Senator Gregg maintains: Americans will be better served in a climate where people in government, and in business, can work together to solve problems in a spirit of cooperation, rather than in an atmosphere strictly of threats, intimidation, and punitive measures. Democrats deliver the direst warnings against the bills, frankly condemning these legislative
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/ March-April
1997
initiatives. A scathing proposal from Congressman Major Owens (D-New York) suggested renaming H.R. 1834the “Death and Injury Act of 1995.” In a somewhat less destructive but equally critical voice, Linda Chavez-Thompson, Executive Vice President of the AFL-CIO, testified before the Committee on Labor and Human Resources that “the effect of both of these legislative proposals would be fundamentally the same-to weaken OSHA enforcement and limit workers’ rights, resulting in more workplace injuries, illnesses, and deaths and less safety and health protection for workers.” Citing the more zealous features of H.R. 1834, the prestigious Chemical Manufacturers’ Association chided the House bill for “overreaching in its quest to curb worker safety and health protections.” OSHA itself even circulated criticism of the bills, predicting that their passage would seriously curtail its ability to protect workers’ health and safety. Notable Provisions Numerous individuals and groups hail specific points of the proposed legislation, whereas others denounce the bills’ terms. The following discussion highlights the provisions that have drawn the most attention. Creation of Labor-Management Committees. Both bills seek to codify the VPP, an effort requiring employee participation in health and safety programs. Elsewhere on Capitol Hill, modifiers of the NLRA agree that labor-management safety committees contribute to the effectiveness of health and safety programs. The AFL-CIO sees nothing to prevent employers from exerting excessive control of this program, whether in union or non-union companies. The latter group regards these committees as a way for companies to bias the committee and its outcomes in their favor. By letting them define the terms of employee involvement and selecting only those employees to serve who will vote agreeably for business, says Chavez-Thompson, companies would be “taking away the rights of workers to have independent representation on safety and health and other matters in the workplace.” Exemptions For Small Businesses. This feature would furnish small businesses with an incentive to maintain a good safety record “because the exemptions from inspection would be based on those records” (Swoboda 1996). If they maintained a lost workday rate lower than their industry’s national average, they would escape the threat of random safety inspections. The time OSHA now commits to those inspections would then be available to concentrate on serious offenders. Others agree that small businesses would receive an incentive but only to keep their industry’s average high. “If exemptions are granted for New Prescriptions
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average performance,” claims Chavez-Thompson, “there will be no incentive to do more.” When the average lost workday rate in a particular industry is excessive, then its shameful average would become the industry standard; critics offer
work force injury average as an example, because it would result in an exemption for any plant with less than 39 percent work force injuries. Further, occupational safety and health experts report that small businesses employing fewer than 50 people account for a large number of workplace injuries and accidents, thus calling into question the logic behind rewarding small businesses for lack of progress. Third Party Certification. Advocates assert that a workplace inspection performed by a certified, third party health and safety expert would exempt a company from an OSHA inspection. These consultants would reduce bias in work site inspections, focus expertise by industry, conserve government resources, and bestow positive incentives on employers who address health and safety issues. Critics foresee five negative outcomes to third party certification. They expect employers to shift their priority from conducting work site inspections to hiring consultants and filing exemption requests with OSHA. And because the word of an employer-paid consultant determines exemptions, it would not ensure accountability by employers, Although this provision would establish third party certifiers as a substitute for OSHA inspectors, the reliability and validity of their findings would suffer from a lack of recognized standards by which to judge a work site. Already inundated with paperwork, this process would drown OSHA even deeper. Moreover, employees or their representatives would not have the right to contribute to on-site assessments or read the final certification report. Protection from Disclosure of Self-Safety Audits. This legal privilege would protect employers from having to disclose the results of their self-safety audits. According to supporters, the present OSHA system discourages employers from performing safety audits, because OSHA bases inspections on an employer’s subpoenaed audits and surveys. This, says Gombar (1995), would allow employers to identify and correct the unsafe conditions while avoiding the threat of an OSHA fine. Thomas Donahue, Secretary-Treasurer of the AFL-CIO, has testified that combining third party certification and this legal privilege 47
would grant deceitful business owners an unsupported exemption from inspections, because their self-safety audit claims would never again be questioned by an OSHA review. Authorization of Alternatives. At first glance, authorizing employers to develop alternative worker protections would seem positive, suggesting increased flexibility when fostering a safe on-the-job environment. But this permission may actually lengthen the enforcement proceedings process and intensify the judge’s job. This is because, as Chavez-Thompson maintains, “the requirements of standards would be open to challenge and interpretation in every OSHA enforcement proceeding, with determinations of the adequacy of protections made by judges instead of trained safety and health personnel.” From the workers’ viewpoint, they would not only have to purchase their own protective gear, but would run the risk of their employers’ substituting cheaper, less protective equipment.
Discretion for Nonserious Violations. Adherents disdain the unwieldy nature of OSHA’s voluminous regulations. Ballenger suggests that this provision will make issuing violations “fairer to employers, most of whom cannot possibly know or consistently follow all of the details of OSHA regulations and interpretations of those regulations.” In S. 1423, it would be up to the discretion of the inspector to substitute a warning for a citation, where a nonserious violation exists, or when the employer acts quickly and in good faith to abate a workplace hazard. Extended by H.R. 1834 with a “Right to Fix” provision, it states that if a fatality or serious injury has not occurred, only a warning could first be issued, to give the employer an opportunity to correct the hazard. with no evidence of abatement, an inspector would finally issue a citation. Because it purports to “aim penalties at just the right sort of violations-those that actually cause death or serious injury” (Gombar 1995), supporers think this provision would let OSHA more effectively focus its enforcement resources. Registering dismay at these provisions, opponents contend that workers “would have to be killed, seriously injured, or exposed to continuous danger before OSHA could enforce the law” (Anderson 1995). Specifically, H.R. 1834 would often require two inspections instead of one, which, according to Congressman Owens, would send employers “the message that they will not 48
be punished until they are caught, not once but twice, by OSHA. Therefore, many employers will not comply.” If employers can wait to abate a hazard until after receiving a warning (and still avoid a fine). they will not be motivated to rectify hazards before OSHA inspects, thereby undermining the Act’s preventive intention and forsaking the fundamental principle behind the original OSHA Act: “that injuries and deaths should be prevented by compliance with standards, rather than be discouraged by damages or penalties after an injury or death occurs” (Gombar 1995).
Codilkation of the Voluntary Protection and Consultation Programs. At the core of these legislative proposals to transform OSHA’s focus from enforcement to consultation and from penalty to positive incentives lies the codification of the consultation program and the VPP. Designed to assist small businesses in the detection and correction of hazards in a climate free from indictment and penalty, it seeks to distinguish among employers who are committed to workplace safety. Optimistic advocates prophesy a new future for OSHA within these provisions. OSHA would devote the majority of its time to consulting with small businesses while large companies regulate themselves, relying on their solidly funded programs staffed by safety and health professionals. It would immerse itself in industry-wide prcjgrams in which enterprises “agree on common rules that are good for business and for health and safety” (Minter 1995). Skeptics doubt that such a rosy future will materialize. They offer their harsh version of history wherein employers declined to act in the best interest of workers; only when government demonstrated oversight or intervention and voluntary efforts failed was a strong enforcement program finally implemented. Certain high-risk industries have improved since OSHA intervention: grain handling and trench cave-in deaths have declined by 58 percent and 35 percent, respectively. And the lungs of textile industry workers, often debilitated by brown lung disease, benefitted when OSHA established exposure limits to cotton dust. The incidence of that crippling respiratory disease plummeted from 20 percent of its 1978 work force to 1 percent just seven years later. The AFL-CIO acknowledges a decline since 1970 in the overall death and injury rates of workers, but, says Donahue, “where OSHA has focused little attention, and compliance has been largely voluntary, injury and fataity rates have changed very little.” Even as Congress discusses these bills, companies have begun to perceive a weakening of job safety regulations and enforcement. In response, they have begun to cut their budgets and staff currently dedicated to those priorities. The Business Horizons
/ March-April
1997
AFL-CIO also reports a recent study in which more than one-third of safety and health professionals surveyed expect greater budget and staff reductions for those same reasons. This, it says, indicates that without regulatory enforcement, safety becomes less of a priority for business. Long-Distance Substitution for On-Site Inspection (S. 1423). With current staffing levels, estimates put the frequency of an OSHA inspection at once every 87 years. Supporters assert that using available technology, such as longdistance telephone service and facsimile machines, would be a more cost-efficient use of OSHA’s resources. Inspectors would be able to address employee complaints directly and quickly, determine which ones deserve an inspection, and subsequently decrease the number of on-site inspections. Objections center on the advantage this would give to deceitful employers able to dissuade inspectors long-distance-an advantage that would fade if an inspector could actually see the situation. Employee Filing of Complaints (H.R. 1834). Requiring employees to notify their employers first when they identify a health or safety violation would reduce OSHA interference, say advocates. This practice would give firms time to correct unsafe conditions and reduce the abuse of OSHA reporting by angry employees and unions bent on influencing the collective bargaining process. Employers would only notify OSHA if they were unable to take care of the hazard themselves. Democrats, labor, industry groups, and OSHA itself roundly criticize this provision. They believe such a mandate would expose employees to possible retaliation from employers, particularly in non-union firms. It would undoubtedly severely curtail reports of violations from the people most often exposed to them. Certainly OSHA’s workload would diminish, but unsafe working conditions would swell. Elimination of NIOSH. Proponents of eliminating NIOSH point to its costly budget (almost half the size of OSHA’s), inefficiency, political bias, and minimal scientific findings with application to OSHA. In the dissenting opinion of occupational health and safety experts, NIOSH generates worthy investigative contributions, such as when conducting risk assessments on new and existing standards (discussed in the next section). Without these contributions, reports Minter (1995), “occupational safety and health research would be left to special interest groups that might not be as impartial.” Even OSHA concedes that abolishing NIOSH would restrict its ability to collect the most accurate safety and health data, and agrees that no other existing research institute could substitute for NIOSH. Standards Based on Risk Assessment and Cost-Benefit Analysis. Occupational safety and New Prescriptions
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OSHA
health experts commend this provision for its effort “to focus standard-setting on the basis of risk and sound scientific data, rather than on political process” (Minter 1995). Donahue raises three objections: (I) “imposing cost-not protection of safety or health-as the primary consideration in standards only to be set if benefits exceed costs”; (2) relying on imprecise, easily manipulated calculations to derive standards; and (3) ignoring issues of equity, fairness, and workers’ rights for safe workplaces. Both labor and safety and health experts recognize the irony behind mandating more rigorous and precise standards while dissolving the resource best equipped to devise those standards. Elimination of Penalties for General Duty Clause Citations. This provision seeks to reduce what some view as the subjective and discretionary nature of penalties imposed by OSHA, resulting from what they regard as too liberal an interpretation of the general duty clause (that employers have a general duty to maintain a safe and healthy workplace.) The clause’s original intent was to emphasize that not all serious workplace hazards would necessarily be covered by standards; “in those cases where there was clear recognition by employers of a hazard which posed serious risk of injury or illness, employers should have a legal obligation to protect workers from exposure,” says Donahue. Supporters list eliminating this clause’s penalties and completely negating penalties unrelated to a specific standard or regulation as ways to mollify that subjective and discretionary nature, in addition to using risk assessment and costbenefit analysis methods to develop more explicit assessments of standards. A range of advocates allege that eliminating the general duty clause would increase workers’ exposure to non-regulated, serious health and safety hazards. Viewing the clause as a powerful incentive for firms to protect workers, Democrats, labor, occupational safety and health experts, some industry groups, and OSHA oppose the clause’s elimination because certain industries, such as the pharmaceutical industry, daily create and expose workers to potential hazards faster than any standards can be set. Says Minter, “You need to have something that lets you deal with the unknown situations because there are more of them than the known situations.”
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Redirection to Education and ConsultaThis provision would impose a major alteration in philosophy and allocation in OSHA’s budget (the latter, over three years), redirecting half of OSHA’s funding to education and consultation. Advocates view this change as a viable transition from OSHA’s present inefficient, heavyhanded, penalty-driven policies. As Gombar says, “Better to educate many employers.. .than to spend precious resources prosecuting the few who could be inspected and cited.” Opposing viewpoints hold that the simultaneous redirection of OSHA’s focus to toothless education and consultation, along with the reduction of OSHA’s budget, would decimate the government’s workplace safety and health regulatory and enforcement efforts. Rather than favoring worker safety and health, this proposal would acquiesce to business’s pressures and demand less oversight of their affairs. Consolidation of MSHA and OSHA. This proposal would merge the two agencies, abolish the five-member Federal Mine Safety and Health Review Commission, and repeal the 1977 Federal Mine Safety and Health Act. Allies of this initiative deplore what they regard to be MSHA’s status as an excessively powerful agency with an equally excessive budget. Defenders cite MSHA’s reputation as a regulatory success, producing a drop in mine fatalities by a factor of seven since 1968.Three main issues comprise the dissenting Democratic and labor position. Miners’ safety would be endangered because: (1) underground mine inspections would decrease from four to one per year and surface mine inspections would be completely discontinued; (2) the surprise factor in inspections would disappear with mine inspectors needing a warrant first; and (3) mines would escape close scrutiny and assume the same voluntary compliance protection provided to other businesses under H.R. 1834. Reduction in Reporting Injuries and Illnesses. This initiative would limit data collection to injuries and illnesses that involve medical treatment and one or more days of lost or restricted work. A casual reader might conclude that it would place the focus appropriately on serious hazardous workplace conditions, with a bonus of reducing paperwork for companies as well as OSHA. A deeper understanding of workplace injuries reveals their cumulative nature that may not result in lost time or treatment, but still may lead to serious consequences. Deleting the retion.
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porting and recording of these injuries and illnesses would destroy the early warning system that identifies unsafe conditions early on and remedies them, often well before they require medical attention and result in lost days. Current Status Of The Legislation Both bills are currently out of committee but have not seen debate in either the Senate or the House of Representatives. S. 1423’s future appears uncertain; Representative Ballenger’s staff members have expressed his unwillingness to introduce H.R. 1834 to the full House in 1996, because President Clinton has promised to veto both bills and any other similar OSHA proposals proffered by the GOP leadership.
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fter careful consideration, we submit that the naive assumptions underlying these two bills would subvert the original intent of the 1970 OSHA Act and drastically alter its fundamental philosophy and structure. That original act established an employer’s legal obligation to provide a workplace free from recognized hazards that could lead to injury or death. It also guaranteed workers and their unions important rights, directing the Secretary of Labor to set and enforce standards. Both H.R. 1834and S. 1423 place too much faith in the good will of employers and limit workers’ rights. This is shown by the bills’ forcing employees to first report violations to the violator that employs them, rather than directly reporting them to an outside party, OSHA. What will persuade businesses to cooperate if compliance becomes voluntary? Even if OSHA can be retrained to perform this persuasive role, how effective will it be without the influence of potential penalties? Reducing or eliminating fines and citations, combined with voluntary compliance, conveys to business a strong, wrong message. Firms will locate health and safety issues at the comparable and lowered level of importance equal to what they see the federal government supporting in the “new” OSHA budget. They will quickly move to cut their company operating costs directed toward providing a safe workplace for their employees, realizing that there remains only a small threat of immediate or serious punishment from OSHA. Bureaucracies balk when they must evolve too swiftly, and these bills propose too many changes in too little time. How can OSHA transform its methods from direct intervention to indirect consultation and education almost overnight? Such a radical change in focus would present too great a challenge for it, demanding too rapid a transformation that would undoubtedly accrue few cooperative responses. Business Horizons / March-April 1997
In direct contrast are research and technology industries that thrive at a fast pace, often creating hazards at a similar rate. How can the reality of those hazards be judged when there has not been time to develop any corresponding standards and regulations? And though we applaud H.R. 1834’s mandate requiring OSHA inspections to be based on risk assessments and cost-benefit analyses, we also recognize the reality that everything cannot be reduced to written standards. Further, we believe that eliminating penalties for general duty clause violations ignores both realities. An irony arises regarding NIOSH. How can the more stringent scientific evaluations of new and existing standards (required by both bills) be developed if NIOSH is eliminated? With heightened concern, the authors note the statement made by Representative Ballenger when introducing H.R. 1834 in the House: “[Allthough not specifically referenced in this legislative language, it is assumed that NIOSH research activities will be transferred to another governmental agency.” These bills do little to acknowledge the concerns of mid-sized businesses. Instead, they exhibit a preference for completely exempting some small business from inspections and supporting the big-business concerns of decreased paperwork and reduced governmental interference. Conversely, mid-sized firms must pore over the same voluminous, often contradictory, and difficult regulations, but without the support of large staffs and corporate attorneys to advise them. This frequently forces mid-sized firms to rely on their own common sense, which risks producing a well-meaning but unfounded interpretation. We propose that any solution must include both education and simplification of standards. To think otherwise would jeopardize American workers and create an indictment against voluntary compliance. To some observers, H.R. 1834 appears the more radical of the two bills; S. 1423 appears more moderate, not because it addresses the concerns of critics of the House bill, but simply because it ignores some of H.R. 1834’s more controversial issues. The remainder of both bills are similar enough that the differences can surely be worked out in conference. Joseph Dear, OSHA’s Assistant Secretary, is currently attempting to reinvent OSHA without the legislative directives described in this article. His proposals include the following innovations: l partner OSHA inspectors with high-rate injury and illness workplaces needing safety and health programs to improve their company records; l mark companies for traditional inspections and substantial fines that choose not to join the partnership; New Prescriptions For A Healthier OSHA
l use data collected directly from employers to target enforcement resources on major hazards; l re-examine standards, moving toward deleting outdated precepts and rewriting the rest into readable, understandable English; and l retrain compliance staff to improve customer service and incorporate creative enforcement strategies into day-to-day operations. Mr. Dear’s efforts are appearing to materialize into reality before the passage of these bills. Rather than subvert his efforts, as H.R. 1834 and S. 1432 seem to do, the authors recommend that all legislative initiatives should complement and augment the improvements already begun by his agency. Big business has much to gain from the passage of these bills, but American workers have more to lose. Both bills are founded on the unrealistic premise that businesses will police themselves; they compound this error with a fanciful idealism that compliance will result without inspections and penalties. We encourage abandonment of these two legislative proposals, but not of the move to reform OSHA. The bills seek to trim governmental fat-a commendable goal-but they would also destroy the muscle that has made OSHA a vital, vigorous threat against unsafe working conditions. 0
References
S. Anderson, “OSHA Under Siege,” me Progressive, 59, 12 (1995): 16-29. C. Ballenger, “Safety and Health Improvement and Regulatory Reform,” Congressional Record (Extension of Remarks), June 15, 1995, pp. E1261-E1263. C. Ballenger, “OSHA Reform-Myth and Reality,” Congressional Record (House), July 18, 1995, pp. H7075H7076. J. Barrett, “AFL-CIO Decries OSHA Bills,” Supermarket News, 45, 28 (1995): 4. “Summary of Testimony of Linda Chavez-Thompson, Executive Vice President, American Federation of Labor and Congress of Industrial Organizations, Before the U.S. Senate Committee on Labor and Human Resources on S.1423, The Occupational Safety and Health Reform and Reinvention Act,” unpublished manuscript, November 29, 1995. “Testimony of Thomas R. Donahue, Secretary-Treasurer, American Federation of Labor and Congress of Industrial Organizations, Before the U.S. House of Representatives Committee on Economic and Educational Opportunities, Subcommittee on Workforce Protections of H.R.1834, the Safety and Health Improvements and Regulatory Reform Act of 1995,” unpublished manuscript, June 20, 1995. 51
S. Figura, “OSHA’s Struggle for Reinvention,” Occupational Hazards, 57, 12 (1995): 33-36.
M. Owens, “Safety In The Workplace,” Congressional Record (House), June 27, 1995, pp. H6383.
R.C. Gombar, “Inside The OSHA Reform Bills,” OCCUpational Hazards, 57, 9 (1995): 27-32.
C. Pell, “Labor Committee Passage Of OSHA Reform Legislation,” Congressional Record (Senate), March 20, 1996, pp. S2418.
J. Gregg, “The Occupational Safety And Health Reform And Reinvention Act,” Congressional Record (Senate), November 17, 1995, pp. S17345. P.K. Howard, i%e Death Of Common Sense: How Law Is Suffocating America (New York: Random House, 1994). ‘Industry Groups Divided On OSHA Reform Ideas,” Occupational Hazards, 57, 10 (1995): 15-16. N.L. Kassebaum, “Floor Statement on OSHA Reform Act,” unpublished manuscript, November 17, 1995. N.L. Kassebaum, “Summary of OSHA Reform and Reinvention Act, S.1423,” unpublished manuscript, 1995. D. Maraniss and M. Weisskopf, “OSHA’s Enemies Find Themselves In High Places,” Washington Post, July 24, 1995, p. Al. S.G. Minter, “Safety in Transition,” Occupational ards, 57, I2 (1995): 38-41.
Haz-
C. Norwood, “OSHA Reform Needed,” Congressional Record (House), August 1, 1995, pp. H8138. “OSHA Report Criticizes Reform Bills,” Occupational Hazards, 57, 10 (1995): 18-19.
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F. Swobodd, “GOP Bills On OSHA Face Veto By Clinton,” Washington Post, 1996, February 20, 1996, p. Cl. “UFCW Criticizes Proposed OSHA Regulation Reform,” Supermarket News, January 1996, p. 28. R. Wise, “Safety In The Workplace,” Congressional Record (House), June 27, 1995, pp. H6383.
Kenneth A. Kovach is a consultant and professor of human relations at George Mason University, Fairfax, Virginia. Judith A. Sullivan is an independent blood bank consultant and is currently a graduate student at the University of Maryland, College Park, Maryland. Thomas M. Alston is a resource manager for AT&T’s Accessible Communication Services in Washington, D.C. Nancy Greer Hamilton is a senior analyst with KLH Associates, Inc. in Alexandria, Virginia.
Business Horizons / March-April1997
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ith lofty intent, Congress passed the Occupational Safety and Health Act in 1970. Its stated goal was “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” Yet the legislative vision that created the Occupational Safety and Health Administration (OSHA), saved numerous Americans’ lives, and cut the number of U.S. workplace fatalities by half every year has not immunized OSHA from the familiar bureaucratic virus that causes feverish paperwork and painful government rules. Even its home within the Department of Labor has offered no protection from critics distressed at how far an infected OSHA has mutated from its original mandate to protect workers, Irritated business owners vehemently protest the inordinate burden of more than 4,000 abstruse and often contradictory regulations OSHA imposes, not to mention the several hundred billion dollars they have directed toward compliance with OSHA’s rules. On-the-job deaths have declined; supporters offer an impressive and declining workplace fatality rate since OSHA began (from 17 to 8 deaths per 100,000 workers). But workplace injuries have increased, with the Bureau of Labor Statistics pointing to a 15 percent increase in workplace injuries since 1972. Inside OSHA itself, inspectors have not found a cure for the sheer volume of paperwork their written violations generate. Incredibly, 50 percent of the time those violations cite companies for incorrectly written forms! Nor have inspectors developed an antibody to reduce the inordinate time they spend measuring the heights of railings. Several members of Congress are seeking to recapture the original focus of OSHA and have proposed legislation to reconstitute it. As we explore the prescriptions contained in House and Senate initiatives, we present a range of reactions New Prescriptions
For A Healthier
OSHA
and conclude with a brief personal commentary on whether these legislative efforts can restore the health of OSHA and continue to sustain workplace safety. THE BILLS BEFORE CONGRESS
I
ntroduced to the House of Representatives in the summer of 1995, the Safety and Health Improvement and Regulatory Reform Act (H.R. 1834) preceded the Senate’s version of the Occupational Safety and Health Reform and Reinvention Act (S. 1423) by five months. Numerous features reveal a concordance between the Senate version, authored by Nancy Kassebaum (R-Kansas), and the House version, put forth by Cass Ballenger (R-North Carolina). The conspicuous inclusion of the word “reform” in both titles leaves no doubt as to their similar emphasis: l the formation of labor-management committees to discuss safety issues in the workplace through an amendment to the National Labor Relations Act (NLRA); l the protection of small farms and businesses from random OSHA safety inspections when their lost workday rate exceeds their industry average (H.R. 1834 limits a “small” business to fewer than 50 employees, S. 1423 to fewer than 10); l the support of voluntary compliance through third-party certification and the exemption of companies from subsequent inspection; l the granting of legal privilege to a company seeking to avoid self-disclosure of its safety and health audits; l the permission to provide alternative meth45
ods of worker protection equivalent to those required by OSHA regulations; l the reduction in status of a violation to a lower warning level, when no serious injury or death occurs (before issuing a citation, H.R. 1834 would issue a warning and allow time for abatement); l the limitation of fines to serious violations (H.R. 1834’s penalties for posting and paperwork violations would require demonstrating fraudulent intent; S. 1423 decreases those same penalties to $100); l the codification of OSHA’s consultation program that funds state compliance programs assisting small businesses, as well as the codification of the Voluntary Protection Program (VPP) that acknowledges workplaces committed to safety and health with exemptions from routine OSHA inspections; l the extension of OSHA coverage to federal government workers.
Special Provisions Of S. 1423 The Senate version specifies three noteworthy inclusions not found in H.R. 1834. The first provision removes quotas from OSHA inspectors’ duties. The second allows a telephone or facsimile consultation to substitute for an on-site inspection arising from a health or safety violation reported by an employee. The third lowers the cost of a penalty resulting from a violation if a certified third-party safety and health consultant performs the inspection, or if the company furnishes employees with an effective health and safety program.
Special Provisions Of H.R. 1834 The House version adds a longer list of provisions: l the requirement for employees to file health or safety complaints with their employer first, and the permission and opportunity for that employer to rectify the violation identifiedbefore the company has to involve OSHA; l the elimination of NIOSH (the National Institute for Occupational Safety and Health), which performs research into workplace hazards (such as epidemiological, laboratory, and engineering studies), validates their significance, and establishes standards for identified hazards;
l the foundation of all current and future standards to be based on risk assessment studies and cost-benefit analyses; l the removal of penalties for general duty clause violations and assessments in areas where no standard or regulation exists; l the reallocation of OSHA funds. In three years, half of OSHA’s budget would be directed toward non-enforcement activities, such as education and consultation activities (S. 1423 would stipulate 15 percent of OSHA’s funds toward those practices); l the separation of “willful” and “repeat” in penalty definitions and an increase in the penalties attached to serious violations; l the permission for employers to conduct drug tests within their job groups when drug or alcohol abuse could reasonably be expected to endanger the safety and health of any employee; l the consolidation of the Mine Safety and Health Administration (MSHA) with OSHA, and the reduction of mine inspections to once yearly (current examination schedules include four annual inspections); l a reduction in the present mandatory reporting and recording procedures that would limit notification to those injuries and illnesses requiring medical treatment and involving at least one or more days of lost or restricted work.
Support And Criticism Both bills have drawn praise from industry representatives and Republicans, who liken the redirection of OSHA to a consultative capacity and away from its present enforcement role. Members of Congress, as well as the AFL-CIO, occupational safety experts, and various business groups, have all contributed strong positive and negative opinions. The National Association of Manufacturers and the National Grocers’ Association has commended the bills for their streamlining of excessive OSHA regulations. Republican endorsers such as Congressman Ballenger and Senator Judd Gregg (R-New Hampshire) say the bills re-focus OSHA “back on safety and health, rather than on collecting penalties,” and “provide incentives for the private sector to act more responsibly.” Senator Gregg maintains: Americans will be better served in a climate where people in government, and in business, can work together to solve problems in a spirit of cooperation, rather than in an atmosphere strictly of threats, intimidation, and punitive measures. Democrats deliver the direst warnings against the bills, frankly condemning these legislative
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initiatives. A scathing proposal from Congressman Major Owens (D-New York) suggested renaming H.R. 1834the “Death and Injury Act of 1995.” In a somewhat less destructive but equally critical voice, Linda Chavez-Thompson, Executive Vice President of the AFL-CIO, testified before the Committee on Labor and Human Resources that “the effect of both of these legislative proposals would be fundamentally the same-to weaken OSHA enforcement and limit workers’ rights, resulting in more workplace injuries, illnesses, and deaths and less safety and health protection for workers.” Citing the more zealous features of H.R. 1834, the prestigious Chemical Manufacturers’ Association chided the House bill for “overreaching in its quest to curb worker safety and health protections.” OSHA itself even circulated criticism of the bills, predicting that their passage would seriously curtail its ability to protect workers’ health and safety. Notable Provisions Numerous individuals and groups hail specific points of the proposed legislation, whereas others denounce the bills’ terms. The following discussion highlights the provisions that have drawn the most attention. Creation of Labor-Management Committees. Both bills seek to codify the VPP, an effort requiring employee participation in health and safety programs. Elsewhere on Capitol Hill, modifiers of the NLRA agree that labor-management safety committees contribute to the effectiveness of health and safety programs. The AFL-CIO sees nothing to prevent employers from exerting excessive control of this program, whether in union or non-union companies. The latter group regards these committees as a way for companies to bias the committee and its outcomes in their favor. By letting them define the terms of employee involvement and selecting only those employees to serve who will vote agreeably for business, says Chavez-Thompson, companies would be “taking away the rights of workers to have independent representation on safety and health and other matters in the workplace.” Exemptions For Small Businesses. This feature would furnish small businesses with an incentive to maintain a good safety record “because the exemptions from inspection would be based on those records” (Swoboda 1996). If they maintained a lost workday rate lower than their industry’s national average, they would escape the threat of random safety inspections. The time OSHA now commits to those inspections would then be available to concentrate on serious offenders. Others agree that small businesses would receive an incentive but only to keep their industry’s average high. “If exemptions are granted for New Prescriptions
For A Healthier
OSHA
average performance,” claims Chavez-Thompson, “there will be no incentive to do more.” When the average lost workday rate in a particular industry is excessive, then its shameful average would become the industry standard; critics offer
work force injury average as an example, because it would result in an exemption for any plant with less than 39 percent work force injuries. Further, occupational safety and health experts report that small businesses employing fewer than 50 people account for a large number of workplace injuries and accidents, thus calling into question the logic behind rewarding small businesses for lack of progress. Third Party Certification. Advocates assert that a workplace inspection performed by a certified, third party health and safety expert would exempt a company from an OSHA inspection. These consultants would reduce bias in work site inspections, focus expertise by industry, conserve government resources, and bestow positive incentives on employers who address health and safety issues. Critics foresee five negative outcomes to third party certification. They expect employers to shift their priority from conducting work site inspections to hiring consultants and filing exemption requests with OSHA. And because the word of an employer-paid consultant determines exemptions, it would not ensure accountability by employers, Although this provision would establish third party certifiers as a substitute for OSHA inspectors, the reliability and validity of their findings would suffer from a lack of recognized standards by which to judge a work site. Already inundated with paperwork, this process would drown OSHA even deeper. Moreover, employees or their representatives would not have the right to contribute to on-site assessments or read the final certification report. Protection from Disclosure of Self-Safety Audits. This legal privilege would protect employers from having to disclose the results of their self-safety audits. According to supporters, the present OSHA system discourages employers from performing safety audits, because OSHA bases inspections on an employer’s subpoenaed audits and surveys. This, says Gombar (1995), would allow employers to identify and correct the unsafe conditions while avoiding the threat of an OSHA fine. Thomas Donahue, Secretary-Treasurer of the AFL-CIO, has testified that combining third party certification and this legal privilege 47
would grant deceitful business owners an unsupported exemption from inspections, because their self-safety audit claims would never again be questioned by an OSHA review. Authorization of Alternatives. At first glance, authorizing employers to develop alternative worker protections would seem positive, suggesting increased flexibility when fostering a safe on-the-job environment. But this permission may actually lengthen the enforcement proceedings process and intensify the judge’s job. This is because, as Chavez-Thompson maintains, “the requirements of standards would be open to challenge and interpretation in every OSHA enforcement proceeding, with determinations of the adequacy of protections made by judges instead of trained safety and health personnel.” From the workers’ viewpoint, they would not only have to purchase their own protective gear, but would run the risk of their employers’ substituting cheaper, less protective equipment.
Discretion for Nonserious Violations. Adherents disdain the unwieldy nature of OSHA’s voluminous regulations. Ballenger suggests that this provision will make issuing violations “fairer to employers, most of whom cannot possibly know or consistently follow all of the details of OSHA regulations and interpretations of those regulations.” In S. 1423, it would be up to the discretion of the inspector to substitute a warning for a citation, where a nonserious violation exists, or when the employer acts quickly and in good faith to abate a workplace hazard. Extended by H.R. 1834 with a “Right to Fix” provision, it states that if a fatality or serious injury has not occurred, only a warning could first be issued, to give the employer an opportunity to correct the hazard. with no evidence of abatement, an inspector would finally issue a citation. Because it purports to “aim penalties at just the right sort of violations-those that actually cause death or serious injury” (Gombar 1995), supporers think this provision would let OSHA more effectively focus its enforcement resources. Registering dismay at these provisions, opponents contend that workers “would have to be killed, seriously injured, or exposed to continuous danger before OSHA could enforce the law” (Anderson 1995). Specifically, H.R. 1834 would often require two inspections instead of one, which, according to Congressman Owens, would send employers “the message that they will not 48
be punished until they are caught, not once but twice, by OSHA. Therefore, many employers will not comply.” If employers can wait to abate a hazard until after receiving a warning (and still avoid a fine). they will not be motivated to rectify hazards before OSHA inspects, thereby undermining the Act’s preventive intention and forsaking the fundamental principle behind the original OSHA Act: “that injuries and deaths should be prevented by compliance with standards, rather than be discouraged by damages or penalties after an injury or death occurs” (Gombar 1995).
Codilkation of the Voluntary Protection and Consultation Programs. At the core of these legislative proposals to transform OSHA’s focus from enforcement to consultation and from penalty to positive incentives lies the codification of the consultation program and the VPP. Designed to assist small businesses in the detection and correction of hazards in a climate free from indictment and penalty, it seeks to distinguish among employers who are committed to workplace safety. Optimistic advocates prophesy a new future for OSHA within these provisions. OSHA would devote the majority of its time to consulting with small businesses while large companies regulate themselves, relying on their solidly funded programs staffed by safety and health professionals. It would immerse itself in industry-wide prcjgrams in which enterprises “agree on common rules that are good for business and for health and safety” (Minter 1995). Skeptics doubt that such a rosy future will materialize. They offer their harsh version of history wherein employers declined to act in the best interest of workers; only when government demonstrated oversight or intervention and voluntary efforts failed was a strong enforcement program finally implemented. Certain high-risk industries have improved since OSHA intervention: grain handling and trench cave-in deaths have declined by 58 percent and 35 percent, respectively. And the lungs of textile industry workers, often debilitated by brown lung disease, benefitted when OSHA established exposure limits to cotton dust. The incidence of that crippling respiratory disease plummeted from 20 percent of its 1978 work force to 1 percent just seven years later. The AFL-CIO acknowledges a decline since 1970 in the overall death and injury rates of workers, but, says Donahue, “where OSHA has focused little attention, and compliance has been largely voluntary, injury and fataity rates have changed very little.” Even as Congress discusses these bills, companies have begun to perceive a weakening of job safety regulations and enforcement. In response, they have begun to cut their budgets and staff currently dedicated to those priorities. The Business Horizons
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AFL-CIO also reports a recent study in which more than one-third of safety and health professionals surveyed expect greater budget and staff reductions for those same reasons. This, it says, indicates that without regulatory enforcement, safety becomes less of a priority for business. Long-Distance Substitution for On-Site Inspection (S. 1423). With current staffing levels, estimates put the frequency of an OSHA inspection at once every 87 years. Supporters assert that using available technology, such as longdistance telephone service and facsimile machines, would be a more cost-efficient use of OSHA’s resources. Inspectors would be able to address employee complaints directly and quickly, determine which ones deserve an inspection, and subsequently decrease the number of on-site inspections. Objections center on the advantage this would give to deceitful employers able to dissuade inspectors long-distance-an advantage that would fade if an inspector could actually see the situation. Employee Filing of Complaints (H.R. 1834). Requiring employees to notify their employers first when they identify a health or safety violation would reduce OSHA interference, say advocates. This practice would give firms time to correct unsafe conditions and reduce the abuse of OSHA reporting by angry employees and unions bent on influencing the collective bargaining process. Employers would only notify OSHA if they were unable to take care of the hazard themselves. Democrats, labor, industry groups, and OSHA itself roundly criticize this provision. They believe such a mandate would expose employees to possible retaliation from employers, particularly in non-union firms. It would undoubtedly severely curtail reports of violations from the people most often exposed to them. Certainly OSHA’s workload would diminish, but unsafe working conditions would swell. Elimination of NIOSH. Proponents of eliminating NIOSH point to its costly budget (almost half the size of OSHA’s), inefficiency, political bias, and minimal scientific findings with application to OSHA. In the dissenting opinion of occupational health and safety experts, NIOSH generates worthy investigative contributions, such as when conducting risk assessments on new and existing standards (discussed in the next section). Without these contributions, reports Minter (1995), “occupational safety and health research would be left to special interest groups that might not be as impartial.” Even OSHA concedes that abolishing NIOSH would restrict its ability to collect the most accurate safety and health data, and agrees that no other existing research institute could substitute for NIOSH. Standards Based on Risk Assessment and Cost-Benefit Analysis. Occupational safety and New Prescriptions
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OSHA
health experts commend this provision for its effort “to focus standard-setting on the basis of risk and sound scientific data, rather than on political process” (Minter 1995). Donahue raises three objections: (I) “imposing cost-not protection of safety or health-as the primary consideration in standards only to be set if benefits exceed costs”; (2) relying on imprecise, easily manipulated calculations to derive standards; and (3) ignoring issues of equity, fairness, and workers’ rights for safe workplaces. Both labor and safety and health experts recognize the irony behind mandating more rigorous and precise standards while dissolving the resource best equipped to devise those standards. Elimination of Penalties for General Duty Clause Citations. This provision seeks to reduce what some view as the subjective and discretionary nature of penalties imposed by OSHA, resulting from what they regard as too liberal an interpretation of the general duty clause (that employers have a general duty to maintain a safe and healthy workplace.) The clause’s original intent was to emphasize that not all serious workplace hazards would necessarily be covered by standards; “in those cases where there was clear recognition by employers of a hazard which posed serious risk of injury or illness, employers should have a legal obligation to protect workers from exposure,” says Donahue. Supporters list eliminating this clause’s penalties and completely negating penalties unrelated to a specific standard or regulation as ways to mollify that subjective and discretionary nature, in addition to using risk assessment and costbenefit analysis methods to develop more explicit assessments of standards. A range of advocates allege that eliminating the general duty clause would increase workers’ exposure to non-regulated, serious health and safety hazards. Viewing the clause as a powerful incentive for firms to protect workers, Democrats, labor, occupational safety and health experts, some industry groups, and OSHA oppose the clause’s elimination because certain industries, such as the pharmaceutical industry, daily create and expose workers to potential hazards faster than any standards can be set. Says Minter, “You need to have something that lets you deal with the unknown situations because there are more of them than the known situations.”
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Redirection to Education and ConsultaThis provision would impose a major alteration in philosophy and allocation in OSHA’s budget (the latter, over three years), redirecting half of OSHA’s funding to education and consultation. Advocates view this change as a viable transition from OSHA’s present inefficient, heavyhanded, penalty-driven policies. As Gombar says, “Better to educate many employers.. .than to spend precious resources prosecuting the few who could be inspected and cited.” Opposing viewpoints hold that the simultaneous redirection of OSHA’s focus to toothless education and consultation, along with the reduction of OSHA’s budget, would decimate the government’s workplace safety and health regulatory and enforcement efforts. Rather than favoring worker safety and health, this proposal would acquiesce to business’s pressures and demand less oversight of their affairs. Consolidation of MSHA and OSHA. This proposal would merge the two agencies, abolish the five-member Federal Mine Safety and Health Review Commission, and repeal the 1977 Federal Mine Safety and Health Act. Allies of this initiative deplore what they regard to be MSHA’s status as an excessively powerful agency with an equally excessive budget. Defenders cite MSHA’s reputation as a regulatory success, producing a drop in mine fatalities by a factor of seven since 1968.Three main issues comprise the dissenting Democratic and labor position. Miners’ safety would be endangered because: (1) underground mine inspections would decrease from four to one per year and surface mine inspections would be completely discontinued; (2) the surprise factor in inspections would disappear with mine inspectors needing a warrant first; and (3) mines would escape close scrutiny and assume the same voluntary compliance protection provided to other businesses under H.R. 1834. Reduction in Reporting Injuries and Illnesses. This initiative would limit data collection to injuries and illnesses that involve medical treatment and one or more days of lost or restricted work. A casual reader might conclude that it would place the focus appropriately on serious hazardous workplace conditions, with a bonus of reducing paperwork for companies as well as OSHA. A deeper understanding of workplace injuries reveals their cumulative nature that may not result in lost time or treatment, but still may lead to serious consequences. Deleting the retion.
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porting and recording of these injuries and illnesses would destroy the early warning system that identifies unsafe conditions early on and remedies them, often well before they require medical attention and result in lost days. Current Status Of The Legislation Both bills are currently out of committee but have not seen debate in either the Senate or the House of Representatives. S. 1423’s future appears uncertain; Representative Ballenger’s staff members have expressed his unwillingness to introduce H.R. 1834 to the full House in 1996, because President Clinton has promised to veto both bills and any other similar OSHA proposals proffered by the GOP leadership.
A
fter careful consideration, we submit that the naive assumptions underlying these two bills would subvert the original intent of the 1970 OSHA Act and drastically alter its fundamental philosophy and structure. That original act established an employer’s legal obligation to provide a workplace free from recognized hazards that could lead to injury or death. It also guaranteed workers and their unions important rights, directing the Secretary of Labor to set and enforce standards. Both H.R. 1834and S. 1423 place too much faith in the good will of employers and limit workers’ rights. This is shown by the bills’ forcing employees to first report violations to the violator that employs them, rather than directly reporting them to an outside party, OSHA. What will persuade businesses to cooperate if compliance becomes voluntary? Even if OSHA can be retrained to perform this persuasive role, how effective will it be without the influence of potential penalties? Reducing or eliminating fines and citations, combined with voluntary compliance, conveys to business a strong, wrong message. Firms will locate health and safety issues at the comparable and lowered level of importance equal to what they see the federal government supporting in the “new” OSHA budget. They will quickly move to cut their company operating costs directed toward providing a safe workplace for their employees, realizing that there remains only a small threat of immediate or serious punishment from OSHA. Bureaucracies balk when they must evolve too swiftly, and these bills propose too many changes in too little time. How can OSHA transform its methods from direct intervention to indirect consultation and education almost overnight? Such a radical change in focus would present too great a challenge for it, demanding too rapid a transformation that would undoubtedly accrue few cooperative responses. Business Horizons / March-April 1997
In direct contrast are research and technology industries that thrive at a fast pace, often creating hazards at a similar rate. How can the reality of those hazards be judged when there has not been time to develop any corresponding standards and regulations? And though we applaud H.R. 1834’s mandate requiring OSHA inspections to be based on risk assessments and cost-benefit analyses, we also recognize the reality that everything cannot be reduced to written standards. Further, we believe that eliminating penalties for general duty clause violations ignores both realities. An irony arises regarding NIOSH. How can the more stringent scientific evaluations of new and existing standards (required by both bills) be developed if NIOSH is eliminated? With heightened concern, the authors note the statement made by Representative Ballenger when introducing H.R. 1834 in the House: “[Allthough not specifically referenced in this legislative language, it is assumed that NIOSH research activities will be transferred to another governmental agency.” These bills do little to acknowledge the concerns of mid-sized businesses. Instead, they exhibit a preference for completely exempting some small business from inspections and supporting the big-business concerns of decreased paperwork and reduced governmental interference. Conversely, mid-sized firms must pore over the same voluminous, often contradictory, and difficult regulations, but without the support of large staffs and corporate attorneys to advise them. This frequently forces mid-sized firms to rely on their own common sense, which risks producing a well-meaning but unfounded interpretation. We propose that any solution must include both education and simplification of standards. To think otherwise would jeopardize American workers and create an indictment against voluntary compliance. To some observers, H.R. 1834 appears the more radical of the two bills; S. 1423 appears more moderate, not because it addresses the concerns of critics of the House bill, but simply because it ignores some of H.R. 1834’s more controversial issues. The remainder of both bills are similar enough that the differences can surely be worked out in conference. Joseph Dear, OSHA’s Assistant Secretary, is currently attempting to reinvent OSHA without the legislative directives described in this article. His proposals include the following innovations: l partner OSHA inspectors with high-rate injury and illness workplaces needing safety and health programs to improve their company records; l mark companies for traditional inspections and substantial fines that choose not to join the partnership; New Prescriptions For A Healthier OSHA
l use data collected directly from employers to target enforcement resources on major hazards; l re-examine standards, moving toward deleting outdated precepts and rewriting the rest into readable, understandable English; and l retrain compliance staff to improve customer service and incorporate creative enforcement strategies into day-to-day operations. Mr. Dear’s efforts are appearing to materialize into reality before the passage of these bills. Rather than subvert his efforts, as H.R. 1834 and S. 1432 seem to do, the authors recommend that all legislative initiatives should complement and augment the improvements already begun by his agency. Big business has much to gain from the passage of these bills, but American workers have more to lose. Both bills are founded on the unrealistic premise that businesses will police themselves; they compound this error with a fanciful idealism that compliance will result without inspections and penalties. We encourage abandonment of these two legislative proposals, but not of the move to reform OSHA. The bills seek to trim governmental fat-a commendable goal-but they would also destroy the muscle that has made OSHA a vital, vigorous threat against unsafe working conditions. 0
References
S. Anderson, “OSHA Under Siege,” me Progressive, 59, 12 (1995): 16-29. C. Ballenger, “Safety and Health Improvement and Regulatory Reform,” Congressional Record (Extension of Remarks), June 15, 1995, pp. E1261-E1263. C. Ballenger, “OSHA Reform-Myth and Reality,” Congressional Record (House), July 18, 1995, pp. H7075H7076. J. Barrett, “AFL-CIO Decries OSHA Bills,” Supermarket News, 45, 28 (1995): 4. “Summary of Testimony of Linda Chavez-Thompson, Executive Vice President, American Federation of Labor and Congress of Industrial Organizations, Before the U.S. Senate Committee on Labor and Human Resources on S.1423, The Occupational Safety and Health Reform and Reinvention Act,” unpublished manuscript, November 29, 1995. “Testimony of Thomas R. Donahue, Secretary-Treasurer, American Federation of Labor and Congress of Industrial Organizations, Before the U.S. House of Representatives Committee on Economic and Educational Opportunities, Subcommittee on Workforce Protections of H.R.1834, the Safety and Health Improvements and Regulatory Reform Act of 1995,” unpublished manuscript, June 20, 1995. 51
S. Figura, “OSHA’s Struggle for Reinvention,” Occupational Hazards, 57, 12 (1995): 33-36.
M. Owens, “Safety In The Workplace,” Congressional Record (House), June 27, 1995, pp. H6383.
R.C. Gombar, “Inside The OSHA Reform Bills,” OCCUpational Hazards, 57, 9 (1995): 27-32.
C. Pell, “Labor Committee Passage Of OSHA Reform Legislation,” Congressional Record (Senate), March 20, 1996, pp. S2418.
J. Gregg, “The Occupational Safety And Health Reform And Reinvention Act,” Congressional Record (Senate), November 17, 1995, pp. S17345. P.K. Howard, i%e Death Of Common Sense: How Law Is Suffocating America (New York: Random House, 1994). ‘Industry Groups Divided On OSHA Reform Ideas,” Occupational Hazards, 57, 10 (1995): 15-16. N.L. Kassebaum, “Floor Statement on OSHA Reform Act,” unpublished manuscript, November 17, 1995. N.L. Kassebaum, “Summary of OSHA Reform and Reinvention Act, S.1423,” unpublished manuscript, 1995. D. Maraniss and M. Weisskopf, “OSHA’s Enemies Find Themselves In High Places,” Washington Post, July 24, 1995, p. Al. S.G. Minter, “Safety in Transition,” Occupational ards, 57, I2 (1995): 38-41.
Haz-
C. Norwood, “OSHA Reform Needed,” Congressional Record (House), August 1, 1995, pp. H8138. “OSHA Report Criticizes Reform Bills,” Occupational Hazards, 57, 10 (1995): 18-19.
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F. Swobodd, “GOP Bills On OSHA Face Veto By Clinton,” Washington Post, 1996, February 20, 1996, p. Cl. “UFCW Criticizes Proposed OSHA Regulation Reform,” Supermarket News, January 1996, p. 28. R. Wise, “Safety In The Workplace,” Congressional Record (House), June 27, 1995, pp. H6383.
Kenneth A. Kovach is a consultant and professor of human relations at George Mason University, Fairfax, Virginia. Judith A. Sullivan is an independent blood bank consultant and is currently a graduate student at the University of Maryland, College Park, Maryland. Thomas M. Alston is a resource manager for AT&T’s Accessible Communication Services in Washington, D.C. Nancy Greer Hamilton is a senior analyst with KLH Associates, Inc. in Alexandria, Virginia.
Business Horizons / March-April1997