Republican ranking members of two key U.S. Senate committees have asked Secretary of Labor Hilda L. Solis for an accounting of recent changes proposed by the Occupational Safety and Health Administration.
In a letter Nov.15, Sens. Olympia J. Snowe (R-ME) and Michael B. Enzi (R-WY) challenge several recent OSHA policy actions and ask Solis to explain the rationale behind them as well as the alternatives considered, and to document the policies’ impact on small business.
Snowe is ranking member of the U.S. Senate Committee on Small Business and Entrepreneurship; Enzi is ranking member of the U.S. Senate Committee on Health, Education, Labor and Pensions.
‘Undermine Job Creation’
In the five-page letter, the senators told Solis that several OSHA actions “could undermine the job creation ability of our nation’s over 27.5 million small businesses.”
“As our nation recovers from the most devastating set of economic circumstances since World War II, … the federal government should remain focused on fostering an entrepreneurial environment that promotes small business job creation, and not adding yet another layer of uncertainty to bottom-line business operating costs.”
The senators noted OSHA’s effectiveness in dramatically reducing workplace injury and illness rates from 8.4 incidents per 100 full-time workers in 1994, to 3.6 incidents in 2009, and reducing fatal work injuries from 6,632 in 1994 to 4,340 in 2009.
That record of improvement, however, “raises serious questions about why OSHA has recently proposed several significant regulatory changes that will negatively affect small businesses … without the benefit of small business review panels or comprehensive outreach to small businesses.”
The senators question three proposals in particular.
Elimination of Voluntary Protection Programs
OSHA has proposed eliminating funding and staff for the VPP, established in 1982. OSHA Administrator David Michaels said in August that the program should be privately funded, because OSHA’s limited resources should not be expended on companies “that ‘get it’, that are dedicated to workplace safety and doing a great job,” but invested in “companies that don’t get it, that continue to injure and kill workers.”
Four in five VPP participants are businesses with fewer than 500 employees, and 39% have fewer than 100 employees, the senators write. Eliminating public funding “will deter VPP growth among these small businesses and diminish the value of attaining VPP status,” they say.
On-Site Consultation Program Revisions
In September, OSHA proposed major changes to its On-Site Consultation program, seeking greater authority to respond to concerns or incidents involving employers previously recognized as safe and/or those that are working to improve their workplace.
The changes would allow the agency to inspect worksites that are participating in its On-Site Consultation Program—currently, a risk-free opportunity for employers to identify and correct safety problems in their workplace.
Employers that carry Safety and Health Achievement Recognition Program (SHARP) status could also face increased inspections. Historically, businesses that achieve SHARP status have been exempt from OSHA inspections for one year—a benefit that the revision would revoke. (Exceptions currently allow for inspection of SHARP businesses in cases of imminent danger, fatality or catastrophe, or a formal complaint.)
Allowing OSHA to inspect any worksite, regardless of SHARP status, “makes the benefit of the On-Site Consultation program illusory,” the senators say.
The senators say OSHA should have convened a Small Business Regulatory Enforcement and Fairness Act (SBREFA) panel before proposing the On-Site Consultation and VPP revisions and, in the case of the On-Site program, should have addressed concerns by the Small Business Administration Office of Advocacy that the changes would “disincentivize” participation.
Finally, the senators challenged OSHA’s recent decision to revamp its penalty structure, increase inspections and ease the traditional penalty mitigation it has given to small firms. Those changes should have been promulgated through a formal notice and public comment rulemaking process, including a SBREFA panel, the senators say.
“Nowhere is there any indication to what extent, if any, the agency considered the economic impact that its new penalty scheme would impose on small businesses,” Snowe and Enzi say.
Taken together, the recent actions “foster the impression that the agency is abandoning a collaborative approach that has been so successful,” the senators say.
‘We Respectfully Request’
The senators urged OSHA to reconsider proceeding with the changes and requested that OSHA provide, by Dec. 10:
• Its commitment that collaboration will be “the primary mechanism” of achieving occupational health and safety enforcement “without unduly inhibiting” job creation;
• “Detailed answers” to the questions raised by the senators;
• A copy of the findings of the unnamed “work group” that reviewed the new penalty policy, a list of the members of the group, and any external communications the group had to evaluate small business impact; and
• Any additional information regarding alternatives considered to mitigate the proposals’ economic impact on business.
OSHA had no immediate response to the letter.