Wednesday, April 13, 2005

Congress To OSHA: Happy Days and Deja Vu All Over Again

One thing you can be confident of in Washington is that when Republicans are happy with what OSHA's doing, it's a sure sign that the agency isn't doing what it's supposed to be doing: protecting workers.

The House Appropriations Subcommittee on Labor, Health, and Human Services and Education held OSHA's appropriation (funding) hearing on April 7. Jim Nash at Occupational Hazards reports that the Republicans had a great old time, yukkin' it up an back slapping and telling OSHA what a great job it's doing.
Ostensibly the hearing was about the administration's fiscal year 2006 budget request, but the subject of money never arose as Republican members of the panel praised OSHA, the Mine Safety and Health Administration (MSHA) and the National Institute for Occupational Safety and Health (NIOSH) for emphasizing education, compliance assistance and other business-friendly voluntary programs.

"We didn't get a lot of complaints about OSHA, so you must be doing something right," Ralph Regula, R-Ohio, told Acting OSHA Administrator Jonathan Snare, after Snare completed his testimony. Regula chairs the House Subcommittee on Labor, Health, and Human Services and Education.
The only Democrat to show up for the hearing was Rep. Lucille Roybal-Allard of California who sharply questioned Acting Assistant Secretary Jonathan Snare about a 6 year old OSHA proposal to force employers to pay for their employees personal protective equipment.
"Why has OSHA failed to finalize this rule?" asked Roybal-Allard. "Will it take you another 6 years?"

Snare replied that "the issues raised by the rulemaking are complicated …[the rule] is currently under active consideration." But his inability to give a specific date when the standard would be issued did not satisfy the congresswoman.

"That's the same answer I get every year," countered Roybal-Allard.
Actually, it's not all that complicated. In fact, it had always been OSHA practice to require employers to pay for their employees PPE such as gloves, boots, hearing protection and other protective equipment required by OSHA standards, although this requirement was not specifically written into OSHA's 1994 PPE revised standard. The OSHA Review Board ruled in 1997 that OSHA could not require employer payment unless it was written into a standard. So, in 1999 OSHA proposed the "Payment for PPE Standard," took comments and held hearings. Witnesses at the hearings, including most industry witnesses, were strongly supportive of the proposal.

The standard, is particularly important for immigrant and other low wage workers who can't afford to buy and replace gloves and boots, was on the verge of being issued when the Bush administration took over in 2001, and it lay in a vegetative state until it was miraculously semi-resurrected on the eve of OSHA's Hispanic Summit last summer, when OSHA opened up the record for more comments -- only to see it relapse again into its semi-permanent vegitative state.

Groundhog Day In The House

One good thing about Republicans in the House of Representatives is that they make it easy for us bloggers by introducing and passing the same stupid OSHA-weakening legislation year after year. For the second year in a row, the House Education and the Workforce Committee voted today to send legislation to the House floor that would change the OSHA act and stengthen the hand of employers fighting OSHA citations and for the second year in a row, Republican committee leadership declared Democratic proposals out of order.

The bills were introduced by Congressman Charlie Norwood (R-GA), whom I will always remember as the lovable Congressman who accused OSHA of killing the tooth fairy when it issued the bloodborne pathogens standard.

The four bills (H.R. 739, H.R. 740, H.R. 741 and H.R. 742), which Congressman Major Owens (D-NY) called the "More Worker Deaths & Injuries Bills" were passed by the full House last year, but died in the Senate.

In summary, the bills are:
  • HR 739, Contesting Citations, would extend the time period allowed to challenge a citation if an employer accidentally misplaces the citation or his dog eats it. (Keeping track of all of that paperwork is hard work. Which reminds me, I have this parking ticket I, uh, forgot to pay by the deadline.....)

  • HR 740--OSHA Commission, which would stack expand the three-member Occupational Safety and Health Review Commission (OSHRC), which already has a one seat Republican majority.

  • HR 741 -- Independent Review which clarifies that the Occupational Safety and Health Review Commission is an independent judicial entity and makes clear that the commission, and not OSHA (which it said is the prosecutor in certain disputes), would be the party that interprets the law and provides an independent review of OSHA citations.

  • HR 742, Attorney Fees, which would require OSHA to pay all court costs when it loses a case against a small business. The bill encourages the Occupational Safety and Health Administration to better assess cases before bringing "unnecessary enforcement actions to court against small businesses," according to a committee summary.

    Norwood argued that some small businesses could not afford to challenge OSHA citations, even when they thought they were right and this bill would keep OSHA from harassing companies for no good reason. Personally, I'm not so sure about that. My observation is that it's actually just the opposite. Even when companies are caught red-handed in violation of a standard that kills a worker, they still file an appeal, hoping that the underfunded and understaffed agency will settle at a lower price. They're usually right and this bill will only make it worse.
Democrats were not confident that the bills would help anyone, according to Occupational Hazards:
Democrats on the panel, led by Rep. Major Owens, D-N.Y., disagreed.

"An all-out assault on workers' rights and labor unions," is how Owens characterized the legislation.
Owens offered an amendment to the Norwood bills that would have made it a felony punishable by up to 10 years in prison when a worker dies as a result of an OSHA willful violation. The amendment was deemed "not germane" to the legislation and therefore ruled out of order by Boehner.

H.R. 742, which would award attorneys' fees to small companies who prevail in court, provoked the most vehement opposition by House Democrats.

"This is the most dastardly of all these bills," contended Rep. Donald Payne, D-N.J. "It's a 'look the other way' bill … it takes the incentives away from [OSHA] inspectors to do the right thing."
Jim Nash at Occupational Hazards reports that the bills might have a better chance in the Senate this year
as its OSHA subcommittee's new chairman, Sen. Johnny Isakson, R-Ga., is a former House member who voted for the Norwood bills before winning a Senate seat in the 2004 election. Asked if Isakson's committee will take up the Norwood bills this year, a spokesperson said, "He thinks they have merit and deserve consideration in the Senate."
UPDATE: AFL-CIO Fact Sheet here.