Tales from DC: Education and Workforce Hearing on OSHA and State Plans
From the Law Offices of Adele Abrams, Esq., ASSE’s Federal Representative –
On June 16th, I represented ASSE at the hearing of the House Education and Workforce Committee, Workforce Protections Subcommittee, entitled, “Is OSHA Undermining State Efforts to Promote Workplace Safety?” The purpose of the hearing was to examine OSHA’s oversight of state OSHA plans and the recent (March, 2011) report by the Department of Labor Inspector General, which concluded that, although the statute requires that state plans be “at least as effective as” federal OSHA, OSHA has not defined “effective” or developed measures of effectiveness.
Subcommittee Chairman Walberg’s opening statement expressed strong support for state OSHA plans. He also announced that he plans to the GAO to do a comprehensive review of OSHA “using the same standards of success OSHA uses to evaluate state plans.”
In her opening statement, Ranking Member Woolsey expressed disappointment that OSHA was not participating in the hearing. She also brought in the issue of budget cutbacks, and said that she and Rep. Miller have asked GAO to review the impact of budget cuts proposed by House Republicans (it was not clear if she was referring to H.R. 1 or some other document), including the impact on state plans.
Why OSHA did not testify at the hearing was unclear – Rep. Woolsey indicated that the Department of Labor policy is that the department needs a minimum 14 days notice before testifying, and such notice was not given for this hearing. Chairman Walberg responded that the Subcommittee intends to hear from OSHA, and that the Minority could have invited OSHA to participate with their slot on the panel, but did not. In any event, OSHA was not part of the panel for this hearing.
The panel consisted of Elliott Lewis, Assistant Inspector General for Audit, Peter Gerstenberger, senior advisor for the Tree Care Industry Association, Eric Frumin, health and safety director for Change to Win, and Kevin Beauregard, from NC-OSHA, on behalf of OSHPAA..
Some points of interest from the panel’s prepared testimony and responses to Members’ questions:
(1) Mr. Lewis noted that in response to the IG report, OSHA has created a joint task force with the state plans to try to come up with agreed definitions and measures of effectiveness.
(2) Testifying on behalf of OSHPAA, Mr. Beauregard mentioned four (4) specific items of friction between state plans (at least some of state plans) and federal OSHA: (1) OSHA failure to say what is meant by “effective” and changing demands by different administrations, without consultation with the states, (2) funding. He said that states currently provide 63% of the funding for state plans and federal OSHA 37%, which is quite a ways from the 50-50 split in the statute. He also mentioned that even the 15% increase for states over the past couple of years was a source of some friction because OSHA uses an old and outdated funding formula so the money was not “evenly” distributed. (3) OSHA’s current policy that state plans must follow and implement OSHA national emphasis programs (NEPs). In the past states were encouraged to adopt or follow them but not mandated. Requiring states to follow all NEPs takes away from the states’ ability to set their own priorities, based upon their own needs and situations. (4) OSHA’s requirement in the past year that states adopt the revised penalty calculation criteria, on which the states were never consulted.
(3) Mr. Frumin and Mr. Beauregard expressed somewhat different perceptions about the proper relationship between federal OSHA and state OSHAs. Mr. Frumin emphasized that federal OSHA must play a strong role in monitoring the states and assuring that they are properly enforcing the law – repeating a couple of times that it was the failure of the states to protect worker safety that led to passage of the OSH Act. Mr. Beauregard, on the other hand, said that state plans “are not merely an extension of federal OSHA” but operate under and are accountable under state laws and constitutions.
(4) Finally, while there was much discussion about the need for defining and measuring an “effective” program, there was less detail on what the definition might be. Mr. Lewis emphasized that effectiveness must be based on outcomes not outputs, and therefore must be based on fatalities, injuries, and illnesses. He also emphasized that judging effectiveness could not simply look at whether those rates declined, but determining whether and to what extent OSHA’s or states’ programs were responsible. Mr. Frumin on the other hand suggested that penalties were a good measure of effectiveness. He cited a recent study by Washington State that he said showed a decrease in workers compensation after an inspection, and said that OSHA is in the midst of a study of 80,000 sites, to look at the effect of enforcement on injuries and illnesses.