I absolutely hate when politics enter into safety, but it is an unfortunate fact that OSHA has to deal with on an on-going basis. However, like all politics these days, it is just getting ridiculous in what is being expected of OSHA from Congress, that group who can not seem to keep their own chambers in order, but seem to be “safety professionals” who can now manage risks! I am NOT a big government kind of guy, but as a safety professional with 20+ years of experience I can say without a doubt OSHA has helped more than they have hurt. Here is an inside look at what OSHA deals with when trying to develop action plans to address risks across many different industries.
Enforcement versus Compliance Assistance
House Report:
The Committee strongly supports the underlying mission of OSHA to promote a safe and healthy work place and protect workers from injury, illness, and death. The
Committee disagrees with the manner in which this policy is being implemented. The fiscal year 2016 budget request states that OSHA supports the Department’s strategic goals and objectives through “enforcement, standards, whistleblower protection, and compliance assistance and outreach programs.” Yet virtually all of the requested funding increase for OSHA is proposed for additional enforcement. Compliance assistance remains less than 25 percent of OSHA’s overall budget. The Committee believes that overreliance on punitive enforcement at the expense of effective compliance assistance is a flawed approach. This approach is costly and overly burdensome on employers and is contrary to the intention of Executive Order 13563 to create a regulatory system that protects “public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation.” The Committee recognizes that enforcement is a necessary component of an effective strategy to improve workplace safety but the Department’s overreliance on enforcement has created an unnecessarily hostile environment between the federal government and private enterprises. The Department’s Spring 2015 regulatory agenda affirms OSHA’s aggressive, enforcement-focused agenda. Inspections and fines are costly, especially for the small businesses that are the primary drivers of job creation. The Committee believes that OSHA should partner with businesses to create safer workplaces. Compliance assistance is an important tool that is underutilized by OSHA. The Committee supports programs like the Voluntary Protection Programs that create safer workplaces by increasing compliance and avoiding costly inspections and fines. The Committee directs OSHA to reorient its approach and refocus its efforts and resources on helping companies to comply with workforce safety laws thereby freeing up funds being used for inspections and fines to create new jobs. The Committee recommendation for fiscal year 2016 reflects this reorientation.
Response:
OSHA achieves its mission of ensuring the safety and health of America’s workers through a balanced approach. We recognize that most employers want to keep their employees safe and protect them from workplace hazards. For those employers, OSHA operates a robust and multifaceted compliance assistance program. But there are still far too many employers that cut corners on safety and neglect well recognized OSHA standards and basic safety measures. For those employers, enforcement remains an effective deterrent. OSHA’s enforcement program specifically targets the most dangerous workplaces, where workers are most likely to be hurt on the job, and our penalty system takes into account the size and behavior of employers, with higher fines for repeated and willful violations. At the same time, OSHA provides extensive assistance to employers that want to protect their workers, through its website and publications, webinars, training programs and more, many geared toward small and midsized employers. In addition, OSHA provides free on-site consultations for small and medium-sized employers that want assistance in protecting their workers and complying with OSHA standards. In FY 2015, OSHA’s On-site Consultation Program conducted more than 27,800 free
visits to small and medium-sized business worksites, helping to remove more than 3.5 million workers from hazards nationwide. A full 87 percent of those visits were to businesses with fewer than 100 employees. In addition, OSHA compliance assistance specialists are available to help employers and workers understand hazards and how to control them. OSHA also remains committed to its cooperative programs, including the Voluntary Protection Programs (VPP) and Safety and Health Achievement Recognition Program (SHARP), under which businesses, labor groups, and other organizations work cooperatively with OSHA to help prevent injuries, illnesses and fatalities in the workplace. In March 2015, OSHA updated its SHARP size eligibility requirements to emphasize that this program is intended for small employers who operate exemplary Safety and Health Management Systems (SHMS) in high-hazard industries. The updated policy allows larger worksites already participating in SHARP to remain in the program for as long as they meet all other eligibility requirements, but also encourages these larger
establishments to instead seek to participate in VPP. The new policy also recognizes that States may choose to offer larger worksites SHARP recognition using 100% State funds.
Injury and Illness Incident Rates
House Report:
BLS data on injury and illness incidence and fatality rates show a steady decline since 2003. While these rates are currently among the lowest on record, the most recent data indicates that rates have not significantly declined since 2009. The Committee questions whether the Department’s intensified enforcement efforts since that time are achieving the expected results. Furthermore, the Committee notes the trend since 2003 has largely occurred in the absence of new regulations. The Committee sees no evidence to support the need for sweeping new regulations of the kind currently being promulgated by OSHA, especially given the significant impact they have on small businesses. The Committee questions the necessity of the proposed Injury and Illness Prevention Program (I2P2) regulation. The idea of an injury and illness program has existed in some variation for more than 30 years, and the Department has had voluntary safety and health guidelines in place since 1989, which have enabled companies to establish policies and procedures specific to their own workplaces. Still unclear is how this proposed regulation
incorporates the recommendations from the 1998 panel that was convened to consider the Safety and Health Program Standard, the predecessor to the I2P2 proposal. This panel cited several criticisms of a federally-mandated safety and health programs and recommended to OSHA that it consider various concepts other than just a blanket, onesize fits-all regulation. The Committee is concerned that this regulation, as currently proposed, would impose additional and costly burdens on employers and subject currently effective safety programs to a new regulatory regime that may result in more fines and penalties but not necessarily safer workplaces.
Response:
OSHA has reclassified the Injury and Illness Prevention Program activity as a long-term action on the regulatory agenda and is not presently engaged in active rulemaking on the topic. Rather, the agency has focused its efforts on updating the 1989 Guidelines on Safety and Health Program Management. In November 2015, the agency released a draft update of the guidelines for a 90-day public comment period, which will close on February 15, 2016 (http://www.osha.gov/shpmguidelines/index.html). The agency held a public meeting in December 2015 on the guidelines and plans a second public meeting in March 2016. The guidelines are being updated to reflect what has been learned over the last 30 years. Two areas of particular emphasis are: improvements to help small- and mediumsized business more effectively protect their workers, and additional guidance to improve communication and coordination on multi-employer worksites.
Complaints/Citations
House Report:
The Committee is aware that the statute clearly establishes that OSHA must receive an employee complaint to write citations. The Committee is concerned that OSHA is proceeding to unilaterally change this requirement to expand its own citation authority beyond the legally required complaint requirement.
Response:
The OSH Act does not require an employee complaint as a predicate to an OSHA citation. Section 9 of the Act directs the Secretary to issue a citation to an employer if, “upon inspection or investigation, [he] believes” that an employer has committed a violation of the Act. Two different provisions of the Act authorize OSHA inspections and investigations. Section 8(a) authorizes inspections and investigations “during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner.” Separately, section 8(f) requires the Secretary to conduct an inspection of a work place if an employee or representative of employees notifies the Secretary of a violation or imminent danger, and the Secretary determines that there are reasonable grounds to
believe that the violation or danger exists. If an employer objects to an inspection, the Secretary must obtain a judicial warrant to conduct the inspection. Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978). The warrant must be supported by “administrative probable cause,” which can be shown either by specific evidence that a violation is likely to exist, or by a showing that the business was chosen for an inspection based on “a general administrative plan for the enforcement of the Act
derived from neutral sources.” 436 U.S. at 321. The first of these criteria will likely be the case for an inspection initiated by an employee complaint; however, the second will not likely involve an employee complaint.
Crystalline Silica
House Report:
The Committee understands that OSHA remains in the process of promulgating regulations to reduce the permissible exposure limit to crystalline silica. The Committee understands that silicosis and other silica related illnesses are serious and can be deadly. The Committee is concerned, however, that OSHA has grossly underestimated the costs of implementing the proposed new standard. The Committee urges OSHA to delay enforcement of any new standard until it can demonstrate the effectiveness of equipment designed to accurately measure workers’ exposure to silica and until it can demonstrate that methods for reducing workers’ exposure to silica across all applicable industries can be feasibly implemented in a cost effective manner. The Explanatory Statement accompanying the fiscal year 2015 Appropriations Act urged OSHA to consider all currently available technology as it develops any new standard for workers exposure to silica dust. The Committee believes that personal protective equipment such as airstream helmets and respirators should be part of an all-of-the above approach to limiting workers’ exposure to respirable silica. Employers and workers should have the flexibility to choose from all available technologies that are proven to be effective at reducing workers’ exposure to silica rather than the environmental control approach put forward in the proposed rule. Lowering workers’ exposure to respirable silica is the goal. The Committee urges OSHA to allow the maximum flexibility possible with all currently available technology to meet any new standard for workers’ exposure to silica dust.
Response:
OSHA has been carefully reviewing the extensive comments and other submissions in the rulemaking record concerning the agency’s proposed silica rule, including evidence relating to the costs of the rule as well as methods used to measure and limit workers’ exposure to respirable crystalline silica. OSHA is committed to developing a silica rule that is based upon the best available evidence, protects workers from significant health risks, and is feasible for all
affected industries.
Solid Ammonium Nitrate
House Report:
The Committee understands that OSHA is reviewing its standards related to the storage of ammonium nitrate and urges OSHA to propose any necessary changes under existing regulations on Explosives and Blasting Agents (29 C.F.R. 1910.109) and not to add ammonium nitrate to the list of chemicals covered under OSHA’s Process Safety Management Standards of Highly Hazardous Chemicals (29 C.F.R. 1910.119). The Committee believes that changes to improve the safety of storing ammonium nitrate should be made based on scientific review of current standards rather than through a one-size-fits-all approach under OSHA’s Process Safety Management Standards.
Response:
OSHA will use the formal rulemaking process to determine whether the scientific evidence justifies adding ammonium nitrate to the PSM standard. This process gives ample opportunity for public comment and consideration of all information pertaining to whether coverage of ammonium nitrate should be added to PSM.
Nail Salons
Senate Report:
The Committee is aware of recent reports of unhealthy and dangerous working conditions in some nail salons. While OSHA has previously awarded several grants that support training and compliance assistance in this area, the Committee notes that employment for nail salon workers is projected to grow by 16 percent from 2012 to 2020—faster than the average for all occupations. Therefore, the Committee directs the agency to allocate funds within the Susan Harwood grants program to strengthen safety and health competencies in the nail salon industry, as well as to train workers to understand the requirements of OSHA regulations and standards and how to assert their rights.
Response:
OSHA annually announces through a Federal Register Notice the availability of Susan Harwood Training Grant Program funds to address safety and health hazards by developing materials and/or conducting training for employers and employees on targeted topics. OSHA will continue to solicit nail salons as a topic in the Susan Harwood Grant Program requests for proposals. OSHA will review all grant proposals and fund nail salon safety and health topics as appropriate.
VPP
Senate Report:
The Committee recognizes that fewer injuries mean lower worker’s compensation and healthcare costs, and safer, more productive workers. Statistical evidence for the Voluntary Protection Program’s [VPP] success is impressive. The average VPP worksite has a Days Away Restricted or Transferred [DART] case rate of 52 percent below the average for its industry. These sites typically do not start out with such low rates. Reductions in injuries and illnesses begin when the site commits to the VPP approach to safety and health management and the challenging VPP application process. OSHA shall dedicate not less than $3,500,000 per year for the purpose of administering the VPP in its Federal Compliance Assistance budget. OSHA shall not reduce funding levels or the number of full time employees administering the VPP, the Safety and Health Achievement Recognition Program [SHARP], or Federal Compliance Assistance, and shall not collect any monies from participants for the purpose of administering these programs.
Response:
OSHA is committed to using all available approaches to achieve safer and healthier workplaces for America’s workers. Compliance assistance, including cooperative programs such as VPP and SHARP, is an important element of OSHA’s operations. Based on proposed funding levels for FY 2017, OSHA will dedicate no less than $3,500,000 for administering VPP and does not anticipate a reduction in full time employees devoted to VPP, SHARP, or Federal Compliance Assistance. Additionally, OSHA does not intend to implement a fee-for-service element for these programs at the proposed resource levels.
Source: http://www.dol.gov/sites/default/files/documents/general/budget/CBJ-2017-V2-12.pdf