August 10, 2009 The Pump Handle 5Comment

In the U.S. Senate last week, between the debate and the vote on judge Sonia Sotomayor to serve as a justice of the U.S. Supreme Court, Majority Leader Harry Reid introduced  S. 1580, on behalf of Senator Edward Kennedy, a bill to amend the Occupational Safety and Health Act of 1970.  As far as I can tell, its text is nearly identical to H.R. 2067 , the bill introduced in April by Cong. Lynn Woolsey.  The bills’ major provisions are:

  • expanding OSHA coverage to the 8.5 million public sector workers (who are employed by state, county and local governments, and not covered by an OSHA State Plan);
  • expanding the definition of protected health and safety activity as it relates to whistleblower protection, and improving administrative procedures for whistleblower investigation;
  • increasing civil penalty amounts and requiring inflation adjustments to them;
  • revising criteria for criminal violations and the applicable law; and
  • providing new rights and access to information for injured worker and family members.

The Senate bill was introduced with 20 cosponsors (Democrats and Independent Bernie Sanders), with Senator Reid noting:

“We now have strong partners in the White House and at the Department of Labor who are committed to making our workplaces safer.  But they need action by Congress as well.  That is why today we are reintroducing the Protecting America’s Workers Act, to take concrete steps to address many of the failures of the existing law.”

His statement introducing the bill also mentioned our colleague Tammy Miser of United Support and Memorial for Workplace Fatalities (USMWF), who lost her brother Shawn in 2003 because of a PREVENTABLE aluminum dust explosion at the Hayes Lemmerz plant in Huntington, Indiana.  Tammy’s been a powerful catalyst to motivate and encourage other families to use their loss for the greater good.   For some, that means insisting on having a voice during the official investigation, or seeking enforcement or regulatory changes so that the hazards or mismanagement that led to their loved one’s death is prohibited and punished.  [Check out USMWF homepage for photos of deceased workers lost because of workplace hazards and/or negligence.  Nearly 50 families so far have contributed photos.]

In my search of THOMAS (the Library of Congress’ on-line legislative search engine) I only identified  one OSHA-related bill introduced in the Senate ( S. 1580.)  In contrast, on the House side there are several:

Cong. Gene Green’s HR 242  on recording and reporting of injuries and illnesses; Cong. George Miller’s HR 849 requiring OSHA to promulgate a standard on combustible dust; Cong. Lynn Woolsey’s HR 2067 on whistleblowers; Cong. Phil Hare’s HR 2113  on mandatory incident and inspection reporting to OSHA by large firms;  Cong. Bishop’s HR 2199  on imminent danger situations;  and Cong. John Conyer’s HR 2381  requiring OSHA to issue standards for patient handling (lifting) procedures.

Those of us who want improvements in our system for PREVENTING work-related injuries, illnesses and deaths need to think seriously about these proposals.  Which have the greatest prevention potential, and if they don’t what does?

In my April 2009 testimony before the Senate HELP Committee’s Subcommittee on Employment and Workplace Safety, I made a number of suggestions to deter unacceptable unsafe employer practices.**  My suggestions included:

  1. Better use of OSHA’s website to shame employers with repeat and willful violations, recognizing the value that companies place on their reputation
  2. Mandatory (steep) minumum penalties for exposing workers to well-known dangers, such as unshored trenches, inadequate lockout/tagout procedures, falls from elevations on residential construction projects, or uncontrolled combustible dust or gases. 

For the first, let’s start with a simple, updated-weekly sortable list of companies (federal and state) that have been cited for willful or repeated violations.  If these severe violations are documented by the inspector, reviewed and approved up the OSHA chain of command, surely they are solid enough for the public to know about them.   

For the latter suggestion, Congress could model language after the “flagrant” violation authority (and the accompanying $220,000 penalty maximum) it gave to MSHA in 2006.  Moreover, the legislative history of such a provision could make clear to the Review Commission that “due consideration” of size, good faith, history, etc. for the monetary penalty is not relevant for such well-known hazards.

As Senator Reid said, on behalf of Senator Kennedy:

“We now have strong partners in the White House and at the Department of Labor who are committed to making our workplaces safer.  But they need action by Congress as well.” 

It’s time for the Administration and the Congress to take some bold action to jump start our worker health and safety system.   I hope they don’t miss this opportunity.

**I may have referred to my suggestions as ways to enhance OSHA’s deterrent effect, but on further thought, I’m not sure OSHA actually has a deterrent effect.  I’ll leave that for others to comment.

5 thoughts on “Senators propose changes to OSH Act

  1. First off, on the first bullet point: amazing. Great job. Every person who’s pushed for this in the past decade(s) deserves praise and admiration. We sometimes talk about fighting losing battles because we love to fight the battle- well we’re about to win one that no one on the right ever thought we could touch!

    On the final bullet point as well: great news, but we can’t stop there- the victims, their families, and their representatives(because these are complex issues) need to be “in the loop” after a tragedy occurs but as you’ve mentioned in your testimony the public needs to be in the loop after the decision is made.

    Which moves on to comment 1: It’s not about shaming, its about mobilizing- is there an OSHA deterrent? Sure, ask any local union safety committee member who’s filed 50 safety complaints about the same hazard and then after he called OSHA it suddenly got fixed. Is this the same thing? No. This takes it to the next level: it allows the global community to become informed consumers about the products they choose to use. I could throw out a post about the millions of injured thousands of widows and unknown amount of poisoned global citizens who would utilize such a resource if given, but the real #’s aren’t there.

    The question there is does it matter that those numbers aren’t there? No, because it’s not an expensive task- we’re talking about jumpstarting the movement for pennies. OSHA wouldn’t be telling people to stop using their products they would be providing information(which should be public anyway) in an easily accessible format. Hell call up the EPA and get their TRI setup. Let the local unions and local support groups to use the data against the companies. Let the global citizens to be empowered by knowing if that $20 they’re going to spend is going to a company who practices the same safety regulations they’ve forced upon their employer. It’s cheap and its empowering. Let’s do it.

  2. I wonder if any of these bills address updating the PELs. The other day, I blogged on the nomination of David Michaels as OSHA administrator. If he is confirmed, it’s my hope that he’ll take up the long-overdue problem of outdated occupational exposure limits. Over the past 20 years, my impression of matters is that, after the litigation, OSHA wasn’t going to take up the matter unless pressed by Congress.

  3. JLowe,
    None of the bills, including the two “comprehensive” OSHA improvement proposals do not address the outdate PELs.

  4. One of the “little talked about” provisions of these proposals would eliminate the automatic stay on correction of serious violations when an appeal is filed. That’s already the law here in Oregon, but I don’t believe it is in any other state. It may seem like a minor technical point, but it’s a big deal when it comes to getting identified problems corrected. The change would also eliminate the “we had to settle the case in order to get the problem corrected” motivation that exists in almost every jurisdiction today.

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