OSHA Reform: "Partnership" with Employers
Publication Date: January 2001
Publisher(s): Library of Congress. Congressional Research Service
The Occupational Safety and Health Administration has occasioned controversy ever since its inception in 1971, both for being too strict with employers and not being strict enough. In the last few years most of the OSHA reform bills in the Congress have been presented as a response to the complaints of small business. The common theme is to shift the agency away from levying fines and toward cooperatively working with employers to solve problems.
The most prominent of the bills in the 106th Congress aimed at fundamentally changing safety regulation was the SAFE Act (Safety Advancement for Employees Act, in related but not identical versions as H.R. 1427/S. 385). The centerpiece was a program under which employers could contract with private-sector consultants and, if complying with their recommendations, be exempt from OSHA civil penalties for the following year. (S. 385 was reported by committee on April 29, 1999.)
There were also a number of bills in the 106th Congress dealing with particular issues. The chairman of the House Subcommittee on Workforce Protections introduced a package that would: allow for a waiver of penalties for some violations by small businesses (H.R. 1437), require that risk-benefit analyses be done on an industry by industry basis (H.R. 1436), provide new procedures for whistleblower protection suits (H.R. 1439), assure confidentiality for employer self-audits (H.R. 1438), and clarify application of the National Labor Relations Act (H.R. 1434). (None of these were reported by the committee.)
Several bills would have reformed the methods all safety-related agencies (not just OSHA) would use in fashioning their regulations. S. 746 would have codified that cost benefit analyses be done for major new regulations (currently required by Executive Order), and would have subjected these analyses to peer review and, potentially, judicial review. However, the agencies would not be required to show quantitatively that benefits of their final rules exceed the costs. S. 59/H.R. 1074 called for an annual review of regulations on the books, with recommendations, by the Office of Management and Budget. (S. 746 and H.R. 1074 were reported by committee.)
The Clinton Administration stressed whistleblower protection as a legislative priority, arguing that the protections afforded by the OSH Act in 1971 are not as effective as other, more recent, Federal laws. S. 652 and H.R. 1851 would have allowed a private right of action by complainants, whereas currently only the Labor Department can bring actions on workers’ behalf. Moreover, these bills would have increased recoveries to include full compensation and punitive damages. (Neither advanced beyond committee.)
Meanwhile, the Clinton Administration moved forward by regulation on some important new standards. The new ergonomic standard requires all employers to respond to reported injuries by developing plans to deal with a potentially wide range of ergonomic hazards. Congress almost passed a legislative rider to prevent the issuance of an ergonomic standard, but the Administration was able to complete the rulemaking. Opponents of the measure could still try to overturn it by court action or by use of the Congressional Review Act.