Subcommittee Holds Hearing on OSHA Rulemaking

On Tuesday, the House Subcommittee on Workforce Protections held a hearing –
Investigating OSHA's Regulatory Agenda and Its Impact on Job Creation – to examine recent regulatory actions taken by the agency and discuss ways to improve the rulemaking process. Subcommittee Chairman Tim Walberg (R-MI) stated that both employers and employees have a “shared goal” of creating a safe workplace, but argued that OSHA has “become an administration focused more on punishment than prevention.” 

Driving home that point, one witness claimed that OSHA’s planned changes to its On-Site Business Consultation program would detrimentally affect small businesses. Under this program, small and medium-sized businesses may obtain free and confidential advice from the agency regarding their safety programs. According to the attorney witness, the success of the On-Site Consultation program hinges upon the fact that problems are not shared with OSHA’s enforcement wing. He claimed that this process encourages small businesses to seek help and fix problems before a safety incident arises. The proposed changes to the criteria under which participants in the program could be subject to enforcement action by OSHA inspectors “would have an awful effect on the program” by discouraging participation. He emphasized that OSHA did not convene a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel prior to proposing these changes “despite the On-site Consultation program’s focus on small business. OSHA, therefore, missed an opportunity to learn directly from small businesses about how changes would affect their participation in the program.”

Other witnesses focused on recent OSHA actions that have been withdrawn, at least temporarily, such as the proposed inclusion of a musculoskeletal disorder (MSD) column to the Form 300 Injury and Illness Log, and the proposed reinterpretation of the phrase “feasible administrative or engineering controls” as it is used in the agency’s General Industry and Construction Occupational Noise Exposure standards. As explained by Jacqueline M. Holmes, who testified on behalf of the U.S. Chamber of Commerce, the reason why the panelists focused on withdrawn rules is that it “reflects a troubling allocation of resources” on OSHA’s part. With respect to the noise exposure rule reinterpretation, which would have required employers to use administrative or engineering controls instead of personal protective equipment (PPE) to reduce noise exposure that is above the acceptable level when such controls are “capable of being done” or “achievable,” Holmes criticized that the agency for attempting to implement this change “by regulatory fiat” instead of through the normal rule-making channels. While she appreciated that the rule was withdrawn, she claimed that the plan to make the change was flawed in the first instance. According to Holmes, OSHA “made no effort to identify that there was a problem that needed solving.” She also noted that the “vast majority of employers want to do the right thing. It is good business to work safely.”

Similarly, Stuart Sessions, testifying on behalf of the Coalition for Workplace Safety, claimed that if OSHA had finalized the noise exposure reinterpretation, it would have impacted between 2 and 7 million workers, and cost employers between $2,000 and $10,000 dollars per worker, resulting in an overall cost of between $1-27 billion per year. Sessions also estimated that the rule would have resulted in a loss of 10-20,000 U.S. jobs. The witness also argued that in crafting the change as an administrative interpretation instead of as a rule, OSHA sidestepped certain Regulatory Flexibility Act requirements to address small business concerns.

Another witness emphasized the need for OSHA to work with small businesses during the initial stages of the rule-making process, as they are disproportionately affected by federal regulations. According to the panelist, OSHA should work with the Small Business Administration’s Office of Advocacy early in the rule-making process to avoid problems down the line.

The discussion of the economic burdens of regulatory action is notable in light of President Obama’s recent executive order and memoranda to federal agencies directing rulemakers to consider how regulations impact small businesses, economic growth and job creation.

Subcommittee member Rep. Dennis Ross (R-FL) raised concerns about potential new causes of action against employers that could result if the musculoskeletal disorders column is ever restored. He suggested that the onus could be put on employers to examine any causal relationship between repetitive injury and job requirements. He also noted other potential liability pitfalls, such as retaliatory discharge claims if an employee who suffers an MSD is fired.

Ranking Democratic member Rep. Lynn Woolsey (D-CA), however, expressed concern that the Republican continuing budget resolution (H.R. 1) would cripple the agency and its ability to function. On Monday, the DOL issued its 2012 budget request for $583 million and 2,387 full-time equivalent employees (FTE) for OSHA, an increase of $24,766,000 and 52 FTE over the FY 2010 enacted level. The request for OSHA includes increases of $6.4 million to improve regulatory standards; $7.7 million for Compliance Safety and Health Officers; and $6 million for additional whistleblower investigators. According to Woolsey, the continuing resolution Congress is currently examining instead calls for an 18% reduction of OSHA’s budget, which would eliminate 414 agency employees and result in 8,000 fewer workplace inspections. She also claimed that the continuing measure would cut OSHA standards by 16%. She concluded the hearing, however, by stating that “unless the goal is to under fund and undermine OSHA,” both parties would be able to work together to “bring OSHA into the 21st century.”

A list of the panelists and links to their written statements can be found here.

Photo credit: Alex Nikada

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.