Earlier this year, Department of Labor (DOL) Secretary Hilda Solis publicly declared that “there’s a new sheriff in town” and “the DOL is back in the enforcement business.” Clearly, change is afoot at both the DOL and the Occupational Safety and Health Administration (OSHA).
Following through on her pledge to increase the federal government’s presence in the workplace, Solis recently announced the hiring of 670 new investigators, including approximately 150 for the Wage and Hour Division. Specifically targeting Texas, which averages the most worker fatalities, this summer OSHA unveiled a major construction safety initiative that will increase the number of inspectors and authorize them to launch an immediate investigation if unsafe conditions are observed.
In another move that raised the concerns of business groups, on Aug. 31 the DOL announced the withdrawal of the Risk Assessment (RA) rule proposed by the Bush administration to establish consistent procedures and streamline the processes for notifying the public regarding rulemakings on workplace safety and health.
The proposed RA rule would have required the DOL to post documents electronically 14 days in advance of each regulatory action. Associated Builders and Contractors, along with the U.S. Chamber of Commerce and the National Association of Manufacturers, supported the proposed RA rule; however, DOL has since concluded it is “not necessary” because it would “unduly delay” rulemaking procedures. This is concerning because issuing guidance for a safety or health standard without issuing an Advance Notice of Proposed Rulemaking does not follow the process of public comment, and it allows the agency to issue guidance without public input.
As the DOL continues to tighten employer scrutiny, Jordan Barab, OSHA’s acting assistant secretary, indicated the agency intends to reform ergonomics standards as well as overhaul the agency’s cooperative Voluntary Protection Programs (VPP).
An August memorandum from Barab to agency officials detailed the proposed changes to the VPP, which include repealing a former policy that permitted an onsite evaluation team to provide recommendations to employers. Instead, evaluators must first obtain approval of their recommendations from the OSHA regional administrator and then verbally share their recommendations with employers—adding a layer of bureaucracy.
Prior to Congress adjourning for the August recess, President Obama announced David Michaels, a research professor and interim chairman of the department of environmental and occupational health at George Washington University in Washington, D.C., as his nominee for OSHA assistant secretary.
The construction industry and the business community have several concerns with Michaels’ nomination. He has repeatedly asserted that industry groups use data to manipulate science and “manufacture uncertainty.” He also has voiced opposition to open government requirements for rulemaking, such as economic analyses and reviews of how proposed regulations might affect small businesses.
Both Michaels and Barab overwhelmingly support significantly greater use of the “general duty clause,” an enforcement tool that essentially gives OSHA the unfettered ability to cite employers and impose abatement requirements without regard to their reasonable cost. OSHA in the past has used the general duty clause to issue citations when there is no applicable OSHA standard in place.
The Senate Health, Education, Labor, and Pensions Committee is expected to consider Michaels’ nomination before the end of the year.
Congress also is involved in increasing OSHA oversight by expanding the Occupational Safety and Health Act with the reintroduction of the Protect America’s Workers Act of 2009 (S. 1580/H.R. 2067). This legislation seeks to significantly increase penalties, including instituting a minimum and maximum penalty of $50,000 and $250,000, and raising the criminal penalty from a misdemeanor to a felony for “willful” violations that result in a “serious bodily injury” or death. It also seeks to prevent the dismissal of employees for refusing to perform duties they perceive as dangerous.
The House Education and Labor Committee plans to deliver a full markup on the bill this fall.
Major changes are on the horizon as the DOL and Congress move forward on critical regulation and policies that affect the construction industry. True OSHA reform should focus on keeping businesses in business. This is achieved through legislation and regulations that seek to protect the most important asset—employees—through education, consistent enforcement and incentive programs to increase compliance, rather than policies that merely serve to frustrate employers and increase criminal citations.
![]()
Saturday, February 4, 2012