Human Resource Executive, May 7, 2009
The potential for criminal convictions and increased financial penalties for OSHA violations -- coupled with an increased funding for enforcement activities -- mean that companies need to refocus on their health-and-safety policies and procedures. An emphasis on recordkeeping is also a necessity.
By Stephen Barlas
The drive by congressional Democrats to upgrade civil and criminal penalties for workplace-safety violations should be warning enough for companies to take a close look at their internal Occupational Safety and Health Administration compliance programs.
Jason Schwartz, an attorney in the Washington office of Gibson, Dunn & Crutcher, who counsels large companies on Labor Department compliance issues, says Democrats will pass The Protecting America's Workers Act, a bill which fell short in the past few sessions of Congress, primarily because of the threat of a George W. Bush veto.
The bill would allow the Justice Department to seek felony criminal penalties instead of the misdemeanors that the current law allows.
Moreover, the bill allows felony penalties in the case of serious bodily injury, and extends such penalties to responsible corporate officers.Current law allows misdemeanor criminal penalties only in the case of a "willful" corporate action resulting in a worker's death. Conviction results in no more than six months in jail.
Schwartz points out that another significant provision of the proposed legislation would require companies to immediately fix problems identified by OSHA citations. Currently, a company can challenge a citation in court, and put off making the changes sought by OSHA until the legal case is resolved.
Keith Smith, director of employment and labor policy at the National Association of Manufacturers in Washington, says his organization is "quite concerned" by the reintroduction of the Protecting America's Workersbill.
"Nothing in the bill assists employers with compliance with the already rigorous OSHA requirements," he says.
The Protecting America's Workers Act, reintroduced in April by Rep. Lynn Woolsey, D-Calif., chairwoman of the Workforce Protection Subcommittee at the Education and Labor Committee, was one of the subjects of two days of hearings in the full committee on April 28 and 30.
Congressional legislative action is being propelled by the sense that the Bush administration ignored OSHA enforcement -- and that feeling was buttressed at the hearings by testimony from Elliot Lewis, assistant inspector general for audit at the Department of Labor.
Lewis reported OSHA's enhanced enforcement program (EEP), established by the agency in 2003 specifically to focus on "indifferent" employers, was a bust.
Jordan Barab, the deputy assistant secretary of labor for occupational safety and health, told the committee that "it is not acceptable to fail to follow through with inspections or enhanced settlement agreements with employers OSHA has placed in the EEP."
At present, Barab is the top Obama appointee at OSHA, awaiting the White House nomination of an OSHA administrator, the top position. Barab came to OSHA from the Education & Labor Committee, where he was a top staffer to Rep. George Miller, D-Calif., chairman of the committee and a strong backer of the Woolsey bill.
Barab says OSHA has formed an EEP Revision Task Force, which is designing a new enforcement program to be called the Severe Violators Inspection Program.
OSHA now has significant new funding for enforcement, which will be used for severe violators and other programs, including the agency's Site-Specific Targeting Plan, which targets workplaces that have 40 or more employees and have reported the highest injury/illness rates.
Congress recently appropriated $80 million in the stimulus package targeted for more enforcement in various DOL agencies including OSHA, and expanded OSHA's fiscal year 2008 appropriations by $27 million for fiscal 2009 -- with explicit instructions to focus on enforcement.
Schwartz, who testified on behalf of the U.S. Chamber of Commerce at the April 30 hearings, says the EEP concept not only makes good sense, but is a practical necessity if OSHA is to fulfill its mission.
He says the business community should be involved as OSHA formulates the severe-violators program. He also says OSHA should revise the targeting criteria of its site-specific plan, which he asserts is "often misdirected."
Upcoming, increased OSHA enforcement and the potential new penalty authority makes it incumbent, particularly on major national employers with multi-site workplaces -- whom Schwartz believes OSHA will be focusing on -- to really put a top-flight compliance program in place.
It is important to hire health and safety professionals who "really understand the regulations." Schwartz says. "This stuff is not easy; the OSHA regs are very dense."
He also highlights the need to focus on injury and illness recordkeeping systems, which, he says, "are often delegated to employees who don't have a sophisticated grasp of OSHA health and safety concepts.
"Recordkeeping requires very careful work," Schwartz says, "and given the specter of increased criminal penalties, companies should be putting a lot of focus on this."