Will Enzi's OSHA Reform Bills See the Light of Day?

Sen. Mike Enzi, R-Wyo., has been promising OSHA reform since the late 1990s. On Nov. 18, he introduced three bills that would make a number of changes to the Occupational Safety and Health Act of 1970, from expanding the review commission to fining workers who violate PPE standards.

The question is: Does Enzi's latest opus have a better chance of survival than his previous legislation?

The new legislation which incorporates some remnants from his SAFE acts as well as from a Rep. Charlie Norwood-sponsored OSHA reform bill that passed in this House earlier this year has been met with mixed reactions from stakeholders, mostly along business and labor lines.

The U.S. Chamber of Commerce quickly expressed its support for the measures, while AFL-CIO Director of Safety and Health Peg Seminario pledged that the union "will be vigorously opposing" the legislation.

Attorney Lynn Bergeson of Washington-based Bergeson & Campbell PC took a more neutral stance toward the legislation's proposals. However, when Bergeson looks at the political climate, she believes Enzi's bills could be viewed as too business-friendly, "rightly or wrongly," and, as such, might not inspire a "groundswell of support."

"Are these sleepers that are making their way through or is there something else that has caused these legislative proposals to not enjoy a lot of visibility?" Bergeson said. "The answer is OSHA reform is not a high priority in this Congress and is not expected to be next year."

From a political perspective, Bergeson said the bills have several things going against them, such as their provisions that would strengthen the hand of businesses in dealing with OSHA. For example, the bills contain a proposal to allow small businesses to recover attorney fees if they successfully challenge an OSHA claim a provision that was included in Norwood's bill.

"In many respects, these bills some could argue could weaken OSHA enforcement," Bergeson said, "and as a result that's probably not an issue that would bode well in an election year, particularly in those jurisdictions where unions are prominent."

Bergeson lauded elements of the legislation that encourage and expand OSHA's voluntary compliance and technical assistance initiatives such as the agency's successful Voluntary Protection Program, and noted that such measures could garner widespread support.

But other "bells and whistles" in the legislation such as the proposal to allow employers to fine workers up to $50 for PPE violations could face fierce resistance, she added. That kind of intense debate might not be welcome in the Senate right now.

"The Senate is very polarized on a number of issues, not the least of which has to do with provisions relating to worker health and safety," she said. "The closer we get to mid-term elections, the less likely it is that these issues are going to be openly debated."

Splitting Package into Three Bills Was Wise

Frank White, vice president of New York-based consulting firm ORC Worldwide, believes "there are some very good proposals and some proposals that are going to be more controversial."

White asserted that expanding the Occupational Safety and Health Review Commission from three to five members is a "no-brainer" and could garner widespread support.

However, that same bill S. 2066, titled the Occupational Safety Fairness Act also contains the most controversial proposals, White added, such as fining workers for PPE violations and allowing employers variances from adhering to OSHA standards if they have alternative methods that are demonstrated to keep workers safe.

White also noted that S. 2066 excludes a proposal in the most recent SAFE Act that would have made it a felony punishable by up to 18 months in prison if a worker dies as a result of a willful violation of OSHA standards. While many stakeholders believe the existing criminal provisions in the OSH Act are "inadequate," White said, "from a political perspective it's probably smart to avoid that."

"Sen. Enzi realizes, from a political perspective, that it's going to be harder to take that on," White said.

White said it was just as wise to break the legislation into three bills, as the chances of the entire package passing "are pretty slim" right now. Individually, one or more of the bills might enjoy better prospects.

Overall, White praised Enzi for introducing "an ambitious and diverse set of proposals" and for "getting these issues out on the table."

"I think it's good to review the law from time to time and look at whether some changes might be appropriate," White said. "Sen. Enzi has really given us a broad set of provisions to look at. What it does is forms a good platform for discussion about the [OSH] Act and some of its key provisions."

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