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Focus on Creating Regulations that Adequately Protect Workers Without Unduly Burdening Struggling Employers
By John M. Stahl, Esq.
The Subcommittee on Workforce Protections (subcommittee) of the Education and the Workforce Committee of the U.S. House of Representatives held a hearing on October 5, 2011 titled "Workplace Safety: Ensuring a Responsible Regulatory Environment" to discuss proposed changes to workplace safety regulations of the U.S. Occupational Safety and Health Administration (OSHA). Highlights of the testimony are provided below:
Subcommittee Chair Rep. Tim Walberg (R-MI)'s Opening Statement
Walberg stated "we all share the same goal [of safe workplaces]; however, as with any difficult issue of great importance, there is often a difference of opinion in how we meet that goal."
Walberg also characterized President Obama's approach to workplace safety regulations as "punitive." Walberg contrasted this with Republicans' "strong oversight agenda, which includes raising legitimate concerns, asking tough questions, demanding reasonable answers, and holding hearings to learn from the men and women whose lives are directly impacted by OSHA's policies."
Walberg additionally referred to the U.S. Department of Labor releasing several OSHA proposals in July that were identified as "economically significant" because implementing them would cost businesses at least $100M.
Walberg singled out the I2P2 injury and illness prevention program that Walberg predicted would not reflect the individual needs of businesses and would require costly comprehensive safety and health plans.
David Michaels' Testimony
Michaels, who is the OSHA Assistant Secretary of Labor, acknowledged that "in the short term, responsible employers who invest in the health and safety of their employees are at a disadvantage competing with irresponsible employers who cut corners on worker protection and hazard abatement." He then characterized "strong and fair enforcement, accompanied by meaningful penalties" as leveling the playing field.
Michaels shared additionally that "OSHA conducts inspections of those workplaces where there has been a fatality, multiple hospitalizations, where a worker files a formal complaint or where there is an imminent danger of a worker's death."
Michaels pointed out further that the maximum penalties that OSHA can impose have not risen since 1990 and that OSHA "is statutorily mandated to take into account a business's size, history and evidence of good faith when calculating a penalty."
Pete Korellis Testimony
Korellis, who testified on behalf of the National Roofing Contractors Association, stated that his roofing company based its fall protection methods on a rule that OSHA and roofing industry representatives negotiated. Korellis explained that that rule allowed roofers to use the fall protection that they "believed was the best solution for a given project."
Korellis then criticized the three "conventional fall protection" methods in regulations that became effective last month. Korellis described two of the options as "completely impractical to use on an existing dwelling for a number of reasons" that including requiring that safety equipment "be removed and reinstalled at several phases of roof tear-off, dry-in, and new material application."
Korellis also testified that personal arrest systems were preferable to the other options but were not foolproof for reasons that tripping hazards associated with having ropes on roofs and uncertainty regarding whether a building's rafters could support the weight associated with that method.
Korellis referred as well to the new standards requiring a costly and time-consuming process when a deviation from the approved procedures is requested.
Peg Seminario Testimony
Seminario, who is the AFL-CIO Director of Safety and Health, stated clearly that "the AFL-CIO firmly rejects the proposition that to address our current economic situation the United States must roll back our system of government safeguards to protect workers and the public." Seminario stated that the attacks on the proposed OSHA regulations focused on potential costs and ignored their benefits, which Seminario predicted would substantially exceed those costs.
David Sarvadi Testimony
Employer's attorney Sarvadi, who is a partner with Keller and Heckman, LLP, described his job as helping resolve "disputes with OSHA as to the interpretation and application of those [OSHA] rules and standards in enforcement cases."
Sarvadi testified clearly that "the remedy for the very small minority of employers who abuse the current system ... is for OSHA to use its existing tools to prove [that] that strategy is no longer viable. The answer is not to adopt legislation that would subject the entire employer community to the collective punishment of an immediate abatement requirement."
Sarvadi opined further that "the changes in OSHA's approach to enforcement made over the past 2 1/2 years have created an atmosphere of antagonism and distrust that undermines the willingness of many employers to settle rather than contest citations."
One reform that Sarvadi recommended was conditioning the classification of a hazard as a serious violation to a danger that presented a fairly high, rather than remote, risk of harm. Sarvadi also advocated shifting more of the responsibility for violations related to employee misconduct from the employer to the employee who committed that wrongdoing.
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