Proposed changes in OH could revolutionize the way you work

Ideas are mired in controversy for now, some of the debate heated

A number of proposals for changing the way occupational health and safety is managed in American workplaces are flooding the legislative arena now, most of them with the potential for significantly changing the environment in which you work. The early result is that people are beginning to dig in their heels over some issues, and it is too soon to say which proposals have a real chance for survival.

One of the most contentious debates involves a proposed rule from the federal Occupational Safety and Health Administration (OSHA) in Washington, DC. Proposed safety and health program rule 29 CFR 1900.1 would require most companies to establish workplace safety and health programs to monitor workers for injury, prevent injuries, and improve overall workplace safety. Opponents are calling the proposal vague and impractical.

The draft rule would require each employer to "set up a safety and health program to manage workplace safety and health to reduce injuries, illnesses, and fatalities by systematically achieving compliance with OSHA standards and the General Duty Clause. The program must be appropriate to conditions in the workplace, such as the hazards to which employees are exposed and the number of employees there."

Most existing workplace programs probably would fulfill the requirements, OSHA says, but some employers would be forced to develop comprehensive safety and health programs from scratch. OSHA is touting the proposal as a way to ensure all employers comply with health and safety standards that have proven successful for many employers. Passage of the rule could be a boon to occupational health professionals looking for new ways to target potential clients, but critics say the proposed rule is too vague to be useful.

The proposal is purposely vague so it can be used to punish employers, according to Peter Eide, manager of labor law policy at the Chamber of Commerce in Washington, DC. He has been actively involved in opposing the proposal, recently organizing meetings for employers who are opposed to the plan. He was shocked recently when 100 people showed up for the group’s first meeting — far more than he had expected, Eide says.

"We’ve come to the conclusion that this proposed rule is more than just a program prescription," he says. "It’s an enforcement method and a tool for OSHA. The agency has gone well beyond existing law to a rule that would give the agency unbridled, unsurpassed, and unimagined power and authority.

Eide says most of the employers opposing the rule say it would be too prescriptive in outlining exactly what the safety and health program should look like, simultaneously making it more difficult for employers to comply and easier for OSHA to swoop in and claim a violation."It’s an enforcement reg, not the warm and fuzzy health and safety reg that OSHA would have you think it is," he says. "It will be fought tooth and nail."

Perhaps the most revolutionary idea floated at the moment comes from U.S. Sen. Michael Enzi (R-WY). He recently introduced a new version of his Safety Advancement for Employees Act (SAFE Act). In 1997, Enzi’s first version was struck down by Congress. The SAFE Act would greatly restructure the 1970 Occupational Safety and Health Act, the backbone of all federal safety standards and requirements. Under Enzi’s restructuring, OSHA would no longer be responsible for inspecting American workplaces for compliance with health and safety requirements. Instead, private consultants would be allowed to inspect workplaces.

That could mean a major increase in potential business for occupational health providers, regardless of whether the idea of allowing inspections by consultants actually is good for the safety of workers. In 1997, Democrats and labor unions opposed the SAFE Act because they said it would weaken measures already in place to protect workers. The Republican-controlled Labor Committee approved the SAFE Act in 1997, but it did not make it to the Senate floor for a vote. President Clinton also had threatened to veto the bill if it passed.

In round two of the SAFE Act, Enzi says he has worked out most of the contentious issues and expects the bill to be passed in the next session of Congress. "Worker safety is a contentious subject that has divided the Senate for years now, but last year we made the first significant improvements to the Occupational Safety and Health Act of 1970 since it was enacted," Enzi says. "The changes we’ve made in the bill directly reflect concerns expressed by employers, employees, [Sen. Ted Kennedy (D- MA)], OSHA director Charles Jeffress, and others. We all want our workers to be safer, and I think now that we’re getting closer to agreeing on how to make it happen."

Enzi says the impetus behind allowing private consultants to do work-site inspections is purely logistical. OSHA does not have enough personnel to inspect every workplace, so the SAFE Act focuses on the use of safety professionals to aid OSHA and employers in preventing and addressing workplace hazards, he says.

The SAFE Act offers some benefits to employers. Borrowing language from OSHA’s Safety and Health Achievement Recognition Program — a program that allows employers to avoid inspections for one year if they work with an OSHA consultant to improve safety and health — the SAFE Act would provide a one-year exemption from civil penalties if the employer meets the safety prescriptions outlined in the bill.

Once the inspector issues a certificate of compliance to the employer, that employer is exempt from civil penalties for violations for one year. That exemption applies even if an OSHA inspector comes in and finds legitimate violations after the certification. OSHA would retain the power to conduct inspections, issue citations, and order hazard abatement.

Enzi removed language used in his previous bill that detractors argued limited employees’ abilities to file grievances, but he says the new version still serves his main purpose: making OSHA consultation more accessible to small businesses. Through the use of third-party consultants, small employers would be able to consult more easily on health and safety issues rather than being left to fend for themselves, he says.

"Small businesses and their employers are the backbone of this country’s communities," Enzi says. "It doesn’t make sense to leave the little guy out in the cold when it comes to helping interpret and follow OSHA’s towering volumes of safety rules."

Criticism of the SAFE Act has been slow in coming, perhaps because the Senate was kept busy by another matter recently, but Enzi says he expects this version of the bill to have a better chance of passing. Eide, the Chamber of Commerce representative, calls the Enzi bill "a strong proposal, one that should be given very serious consideration. He has met many of the serious objections from [the last proposal]."

OSHA director Charles Jeffress, PhD, released a written response that was cautious. "While there remain a number of provisions to which we have had serious objections in the past, Sen. Enzi has made some important changes," Jeffress said. He pledged to work with Enzi in resolving any disagreement.