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Mixed Reactions to Enzi's Latest OSHA Bills

A legislative package that in the words of its sponsor aims to change OSHA's "inspect-and-fine enforcement mindset" has been met with some praise and some criticism from occupational safety and health stakeholders.

The package of three bills was introduced into the Senate on Nov. 18 by Sen. Mike Enzi, R-Wyo., who has been promising OSHA reform since the late 1990s.

The bills would expand OSHA's outreach, voluntary compliance and technical assistance programs particularly for small businesses expand the Occupational Safety and Health Review Commission (OSHRC) from three to five members and allow small businesses to recover attorney's fees when they successfully challenge an OSHA citation, among other provisions.

The package also includes a bi-partisan bill S. 2067 that aims to help companies prepare material safety data sheets (MSDSs) for highly hazardous chemicals and would establish a commission to look at possible implementation of the United Nations' Globally Harmonized System of Classification and Labeling of Chemicals.

Chamber: Bills Improve Way OSHA Interacts with Businesses

The U.S. Chamber of Commerce quickly voiced its support for Enzi's legislation, noting, in a Nov. 18 statement, that the bills would "improve the way [OSHA] interacts with employers, especially small businesses."

"OSHA can help businesses improve workplace safety by being a better resource, and not just being a safety cop," said Randel Johnson, the chamber's vice president for labor, immigration and employee benefits. "If implemented, these bills would make OSHA and businesses better partners in creating a safe working environment for employees."

The bills also received praise from the National Association of Manufacturers (NAM), which asserted that the bills would authorize OSHA "to implement voluntary, solutions-oriented workplace safety initiatives rather than enforcing unrealistic standards that impose undue burdens on small companies."

NAM lauded S. 2066 titled the Occupational Safety Fairness Act which, in addition to expanding OSHRC and awarding attorney fees to small businesses that successfully challenge an OSHA citation, includes provisions that would allow OSHA inspectors to waive fines and penalties if non-serious safety violations are corrected promptly or if "alternative methods" implemented by employers are just as safe or safer than measures prescribed in OSHA regulations.

S. 2066 also allows OSHA inspectors to offer warnings or technical or compliance assistance in lieu of citations when non-serious violations are discovered in the workplace.

AFL-CIO: Legislation 'Very Detrimental to Worker Safety and Health'

In the view of AFL-CIO Director of Safety and Health Peg Seminario, Enzi's legislative packages incorporates "all the bad, deformed proposals" from a Rep. Charlie Norwood-sponsored OSHA bill that passed in the House in July as well as from previous Enzi legislation.

While Seminario notes that S. 2067 is a "constructive effort," she attacked the other two Enzi bills as measures that "are very detrimental to worker safety and health."

"From our point of view, they are actually much worse, much more harmful, than his earlier SAFE acts," Seminario said, referring to the Safety Advancement for Employees (SAFE) acts previously introduced by Enzi.

Seminario expressed disappointment that Enzi's new legislation is missing a provision in his last 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. "These bills are really moving in the wrong direction," Seminario said.

Seminario blasted S. 2065 which would encourage employers to hire qualified, third-party consultants to conduct voluntary safety and health audits as a "third-party inspection bill rather than a bill that's trying to improve safety and health." The bill proposes to give employers 2 years of immunity from OSHA penalties if they receive a certificate of compliance from a qualified consultant.

ORC's White: Partnership Act 'Worth Considering' with Some Tweaking

ORC Worldwide Vice President Frank White said the New York-based consulting firm is "very pleased" with the proposals in S. 2065, which is being called the Occupational Safety Partnership Act.

White, however, expressed some concern with giving companies a 2-year "pass" from OSHA fines and citations if they are given a clean bill of safety and health from a third-party consultant.

"There has to be some consistent oversight built into that 2-year period," White said, adding that it could be as simple as having the third-party consultant return periodically to ensure that the employer's safety initiatives are working.

S. 2065 also stipulates that employers would lose their 2-year immunity from OSHA citations if they fail to make a "good-faith effort" to implement the third-party consultant's recommendations.

White questioned this clause, worrying that OSHA lacks the resources to check up on employers, although he still concluded that the bill is "really worth considering."

PPE Provision Draws Some Criticism

A proposal in S. 2066 to allow employers to fine workers up to $50 for willful violations of personal protective equipment standards was questioned by some stakeholders.

"Personally, I am concerned about fining employees and whether that should be codified and made part of federal law," said attorney Lynn Bergeson of Washington-based Bergeson & Campbell PC. "Corporations have their own codes of conduct, their own provisions for ensuring compliance. I'm not sure if fining employees is the best way to make sure workers are mindful of the provisions that are there to protect their health and the health of their families."

White asserted that the PPE proposal could add "another level of controversy" to Enzi's legislation.

"I'm not sure it really accomplishes that much and, for a lot of stakeholders, raises a lot of concern," White said.

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