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Lawmakers’ invocation of the Congressional Review Act to overturn a U.S. Occupational Safety and Health Administration rule requiring them to keep injury and illness records for five years is a “disaster,” according to the former head of OSHA.
In 2016, OSHA issued a rule to clarify that employers have a continuing obligation to make and maintain an accurate record of each recordable injury and illness for five years. It would have become effective Jan. 18, 2017, but Congress used its Congressional Review Act authority to overturn the regulation last April.
The final rule was OSHA’s attempt to affirm a long-held agency stance that has been upheld by the Occupational Safety and Health Review Commission in cases dating back to 1993 but was rejected by the U.S. Circuit Court of Appeals for the District of Columbia Circuit in 2012 in a case called AKM L.L.C. v. Secretary of Labor (Volks). The court slapped down the agency’s attempt to cite and fine Prairieview, Louisiana-based Volks Constructors Inc., a unit of AKM, for failing to properly record certain workplace injuries and maintain its injury log more than six months after the last unrecorded injury occurred.
But OSHA only has the capacity to inspect every workforce once every 159 years, so the Volks decision rendered the record-keeping rule “virtually unenforceable” without the 2016 rule, David Michaels, the longest-serving assistant secretary of labor for occupational safety and health, under the Obama administration, and professor in the Department of Environmental and Occupational Health at the Milken Institute School of Public Health at The George Washington University in Washington, testified at a House subcommittee on workforce protections hearing on Tuesday.
“The problem with that decision was OSHA is rarely there right when a worker is injured, and it takes time to issue a citation,” he said. “It’s really a disaster.”
Under the Trump administration, OSHA also released a proposed beryllium rule in June that would modify standards for the construction and shipyard sectors. It would maintain the permissible exposure limit at 0.2 micrograms per cubic meter and the short-term exposure limit of 2.0 micrograms per cubic meter over a 15-minute sampling period for the construction and shipyard industries. However, the agency will revise the application of ancillary provisions such as housekeeping and personal protective equipment included in the January rule for these industries.
“It’s a false choice to say OSHA must choose between strong enforcement and robust compliance assistance,” Mr. Michaels said. “OSHA must do both, and during the Obama administration OSHA did both. But promoting collaborative programs in place of standards and enforcement is simply not as effective in accomplishing OSHA’s vital mission: ensuring employers protect workers lives, their limbs and their loved ones.”
Eric Hobbs, a shareholder for law firm Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Milwaukee, who represents employers, criticized the adversarial relationship between OSHA and employers during the Obama administration, arguing that it “openly dismissed legitimate concerns raised by the employer community” during rule-making processes, which resulted in regulations that were “driven by ideological views and that would be impractical, if not impossible to comply with.”
“Instead of seeing employers as the opposition … OSHA needs to regard employers as partners and treat them as such,” he said.
“To be clear, we on the management side are not opposed to enforcement,” Mr. Hobbs added. “It’s really a three-legged stool. We have regulation, enforcement and compliance assistance, but it must be all three, and all three cost.”
However, OSHA will not be able to move on any policies until the Senate confirms Scott Mugno, President Donald Trump’s nominee to head the OSHA, he said.
“The answer is that nothing that we’re talking about here as a reality will come to fruition, will be put in place as a policy, until we have an assistant secretary,” Mr. Hobbs said. “Reasonably, those who are put in place of the agency in the absence of an assistance secretary are placeholders. Nothing is the answer, and that’s a problem.”
Mr. Michaels urged legislators to move forward with legislation that would stiffen penalties for willful violations of workplace safety standards that result in worker fatalities. The current criminal sanctions in the Occupational Safety and Health Act are “virtually meaningless” because the maximum penalty for willful violations in cases of workplace fatalities is a misdemeanor, and company employees responsible for maintaining worker safety rarely see jail time, he said.
“U.S. attorneys never take these cases,” he said. “They simply won’t bother. It’s a waste of their time.”
In Canada and European countries, there are “very strong penalties” for such violations, so boards of directors or operations managers know they will face penalties for violations such as allowing workers to go on roof without fall protection — one of the top-cited OSHA standards in the United States, Mr. Michaels said.
“We need something stronger to make sure that doesn’t happen,” he said.
Separately, Mr. Michaels was also asked about the opioids crisis and he specifically discussed injured workers who become addicted to pain medications, partly because they take medication so they can work through the pain. Some states offer lower workers comp rates to employers with good safety and health management systems, he noted.
“The workers comp system can play a very useful role in addressing this epidemic,” Mr. Michaels said. “I think this is a win-win for employers, for the workers compensation insurance industry and of course, the workers and their families.”
Employers may get some relief from record-keeping fines if a U.S. Occupational Safety and Health Administration rule requiring them to keep injury and illness records for five years is reversed, but they will still have to deal with more contentious agency rules for the time being.