November 16, 2017 Celeste Monforton, DrPH, MPH 0Comment

Labor Secretary Alex Acosta testified yesterday before the House Education and the Workforce Committee and explained the status of OSHA’s rule to protect workers who are exposed to respirable crystalline silica. The rule was was issued by the Obama administration in March 2016.

Republican lawmakers complained that OSHA’s silica rule is burdensome and costly, which are some of the same complaints industry groups presented last month to the U.S. Court of Appeals. As I wrote after those proceedings, Judges David Tatel and Merrick Garland didn’t seemed convinced by the industry’s arguments.

At yesterday’s hearing, Congressman Tim Walberg (R-MI) and Rick Allen (R-GA) made desperate sounding pleas to Secretary Acosta, asking him to slow implementation of the rule. Acosta’s answers shed some light on what’s been going on behind the scenes about the rule. Here are excerpts from their exchanges:

Congressman Tim Walberg (R-MI):

“It is extremely challenging for many in the construction industry to implement and comply with this rule. Are you willing to further stay the enforcement of this rule until you’ve worked to ensure that this rule is feasible and your employees are able adequately to educate employers throughout the country?”

Similarly, Congressman Rick Allen (R-GA) said:

“I was in the construction industry for 35 years before being elected to Congress. [There’s a lot of confusion out there.] Has the rule been finalized, or is it still being negotiated, or is it now being implemented, or is it going to be different. I’ve got constituents who are out there pricing and getting quotes.  …Are they to comply with this exact rule now? What happens if it changes? And like I said, it is very expensive to comply with this thing. Where are we with it?”

Labor Secretary Acosta responded:

“The rule is complicated and has multiple dates which might be the basis for some this confusion. Parts of the rule are in effect. Parts of the rule do not go into effect for some period of time.”

He reminded lawmakers that the silica rule is currently the subject of a lawsuit brought by industry groups and labor organizations.

“All sides are represented in this litigation. I’m told they are close to settlement, but each side has their own set of concerns. My view is that if there is some common ground, we should look for that common ground.”

He explained that the Labor Department has been giving the parties time (and extensions of time) to negotiate a settlement:

“I was disheartened that rather than use that time, the parties–as often happens– didn’t come to the table until right up to the deadline. It is my hope that the parties come to the table and come to the table quickly so we can get this issue resolved.”

Congressman Allen reiterated his points of concern about the silica rule:

“There is an awful lot of confusion. There are people who are faced with huge costs on work they have already estimated, on contracts they have already signed. Now with this rule, they have no way to know what to anticipate. …Is there any way that OSHA can somehow clarify what’s going on?  To say “alright, here’s where we are” and give the industry some time to adapt? …It’s very costly. These people are on fixed costs. They don’t put these compliance things in their estimates to complete the work. Predictability is critical in the business world and it is critical that these people know where we stand with this.”

Acosta responded:

“We are engaged in efforts to clarify and we will redouble those efforts because it is important for individuals to know what is expected of them.”

Among the things OSHA has already done to provide clarification on the rule is an explanation of how the agency will be enforcing it. This includes application of the giant “safe harbor” provisions of the rule which apply to the 18 most common construction tasks that can generate silica dust. Acosta’s response to Congressmen Walberg and Allen would have been a great opportunity for the Secretary to hold up a copy of OSHA’s enforcement guidance. The 5-page memo should satisfy any reasonable business person’s needs for predictability about the rule.

While OSHA’s silica rule was on the minds of Republican lawmakers, Democrats on the committee wanted answers about other worker safety topics. Congressman Joe Courtney (D-CT) referred to both Labor Department data and a GAO report to probe the Secretary about the problem of workplace violence. The congressman mentioned Helene Andrews, a nurse from Connecticut who was assaulted by a patient on a psychiatric unit.

“She was  punched out by a young man and shattered her hip and femur bone. She is permanently handicapped because of it. This is a real issue.”

Courtney emphasized that healthcare workers are on the frontline of the opioid crisis and are dealing with violent patients because of it. The congressman asked Acosta:

“Do you believe that workplace violence is an issue for your department to set up standards to help people who are trying to do the right thing–the caregivers in our society?”

Acosta response sounded like he didn’t understand the magnitude of the problem and wasn’t familiar with the petition for rulemaking submitted by numerous worker organizations. His response was:

“Certainly workplace violence is an important issue to address. I’m happy to followup with your staff, get some more details on your particular concern and address it.”

Congressman Mark DeSaulnier (D-CA) asked Secretary Acosta whether the Department would be implementing the requirement for certain employers to submit their injury and illness records to OSHA. DeSaulnier noted that the agency has a website available to collect the records, but the Labor Department has delayed the requirement.

“I would like to know if you plan on setting this up and making it work effective December 1, and if not, why?”

Acosta said:

“We are looking at that rule. We are balancing the issues of privacy– because it was asking for some information that was very detailed and that identified individuals–with the needs to get information so we can engage in appropriate and targeted enforcement. We are moving forward on that.”

With respect to OSHA inspections and enforcement approaches, Secretary Acosta insisted that he will not tolerate employers who repeatedly or willfully violate safety regulations. He said he instructed his staff to refer such cases to U.S. attorneys and that he would personally encourage U.S. attorneys to take these cases. “We need to be very aggressive in enforcement” against bad actors.

Yesterday’s hearing “Examining the Policies and Priorities of the U.S. Department of Labor” was the public’s chance to hear Alexander Acosta’s views now that he’s been on the job for seven months. Republicans liked his interpretation of President Trump’s success at job creation and economic growth. Democrats were skeptical and dubious about his commitment workers’ needs. (It is, afterall, the Labor Department.) I fall into the latter category, but am willing to wait for 12 months of inspection data before launching much criticism.

I know that OSHA inspectors and local officials are doing their jobs as diligently as ever. They are investigating fatalities, inspecting high-hazard worksites, and participating in community events to offer safety and health information. The Labor Secretary needs to defend their work. He also must preserve safety advances secured during the previous administration, including OSHA’s injury reporting requirements and beryllium rule. It won’t be too long before we see if he does that.

 

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