Tales from DC: House Hearing on Ensuring a Responsible Reg Environment
From the Office of Adele Abrams, Esq., ASSE’s Federal Representative –
On October 5, 2011, the Congressional Subcommittee on Workforce Protections of the House Committee on Education and the Workforce held a hearing on OSHA’s efficiency towards protecting American workers entitled “Workplace Safety: Ensuring a Responsible Regulatory Environment”. Justin Winter attended on behalf of ASSE. The Subcommittee, chaired by Congressman Timothy Walberg convened the above hearing in order to obtain testimony regarding OSHA’s recent mandate requiring stricter fall protection guidelines for residential roof repair and construction. Several members of the Subcommittee were concerned that OSHA was enacting new safety standards without considering the guidelines’ impact on the economy.
The Subcommittee heard testimony from OSHA Assistant Secretary Dr. David Michaels; Peter Korellis, President of Korellis Roofing, Inc.; Peg Seminario, Director, Health and Safety Department, AFL-CIO, and; David Sarvardi, Esq., Keller and Heckman.
The hearing’s purpose was to analyze the impact of the new fall protection rule on the economy and safety hazard prevention. Prior to the enactment of the fall protection rule, most roofers attached slide-guards to the base of roofs in order to prevent a fall hazard. However, OSHA received reports of falls from roofs despite the presence of slide-guards. OSHA believed protection beyond slide-guards was necessary. The Subcommittee was split along party lines regarding the benefits of new OSHA regulations in general and the fall protection guideline specifically.
The Republican members of the Subcommittee expressed concern that new regulations promulgated by OSHA during the present economic climate have the potential to hinder hiring and cause confusion among business owners. Republican Subcommittee members opined that allowing OSHA to enact comprehensive safety regulations without significant input from affected businesses will harm the economy by burdening small businesses with intrusive regulation.
The Democratic members of the Subcommittee supported the enactment of the fall protection requirement. The Democratic members praised OSHA’s diligence towards reducing workplace fatalities and injuries since its inception. Ranking Member Congresswoman Lynn Woosley expressed frustration that OSHA has only enacted two new safety regulations under the Obama administration. The Democratic Subcommittee members reinforced the position that OSHA’s main concern is protecting American workers from safety hazards. According to the Democratic committee members, economic considerations, while taken under advisement by OSHA during the rulemaking process, should not prevent the enactment of useful safety guidelines.
The Subcommittee members heard testimony from Assistant Secretary of OSHA Dr. David Michaels regarding OSHA’s procedures prior to the promulgation of a new safety mandate, and the usefulness of the new rule. OSHA’s new rule requires roofers to utilize conventional fall protection when performing roof work on roofs with unprotected sides or edges 6 feet or more above lower levels. Dr. Michaels reiterated that the slide-guards may prevent a trip hazard when a roofer is working along the guard, but if a roofer were to fall from a higher level of the roof, the slide-guard would not effectively impede the fall.
According to Chairman Walberg, residential roofing businesses must invest significant time and money towards the adoption of conventional fall protection instead of focusing on obtaining clients and providing gainful services. According to Congressman Todd Rokita , the enactment of this guideline will increase cost to the business, thereby preventing the business from effectively growing. Further, Chairman Walberg asserted that a new regulation will cause confusion among residential roofers accustomed to the use of slip-guards on most roofing jobs. According to Chairman Walberg and Congressman Rokita, the combination of increased cost and preparation time required to adhere to the fall protection guideline may contribute to layoffs and economic harm. The Subcommittee stated that OSHA has failed to provide scientific data used to promulgate the fall protection rule after repeated requests.
In response to the Republican Subcommittee members’ assertion that OSHA’s regulatory practices will restrict economic growth, Dr. Michaels testified that prior to rule proposal, OSHA performs extensive scientific research into the prevalence of a specific workplace hazard as well as the cost-effectiveness of taking tangible steps towards preventing that hazard. Dr. Michaels cited independent studies conducted by trade associations and economists which state that only a small percentage of layoffs were attributed to over-regulation. Further, Congressman Timothy Bishop cited an independent study which surveyed employers forced to institute layoffs. The study showed that only 2% employers surveyed conducted layoffs due to over-regulation. Rather, lack of demand by consumers was cited as the most common reason for layoffs.
Congressman Todd Rokita questioned OSHA’s willingness to communicate with businesses affected by OSHA standards. According to Congressman Rokita, while OSHA stated they enter into a dialogue with affected businesses prior to proposing a rule, the roofers affected by the fall protection rule have expressed that they have had little or no communication from OSHA. Dr. Michaels stated that OSHA invites input from interested stakeholders throughout the country regarding a potential safety directive, and only following years of research and discussion does OSHA promulgate a regulation. Further, Dr. Michaels asserted that soon after his appointment to Assistant Secretary he held an “OSHA Listens” seminar in which businesses covered by OSHA can voice concerns over OSHA’s rule promulgation process. Dr. Michaels supported OSHA’s pro-business position by referencing free-of-charge on-site safety consultations and the funding provided to roofing businesses and homebuilders in an effort to improve safety training.
OSHA believes that the cost of adhering to safety standards outweighs the risks associated with a workplace injury of death. Dr. Michaels was questioned regarding the ability of small roofing businesses to successfully adhere to the fall protection guideline. Congressman Reid Ribble asserted that the increased cost of purchasing conventional fall protection, combined with the additional time required equipping the workers with harnesses and wires will burden the consumer with significant extra cost. Dr. Michaels stated that OSHA balances the importance of a specific safety standard against the ability of small businesses to adhere to the standard. OSHA believes the cost of conventional fall-protection is reasonable in light of the fall hazard for roofers working 6 feet or higher above the ground.
Roofing professional Peter Korellis testified to the adequacy of slide-guards towards preventing fall hazards when working on steep, high-level roofs. Mr. Korellis believes the old OSHA standard allowing slide-guards was an effective means of preventing fall hazards. According to Mr. Korellis, slide-guards are economically feasible and prevent fall hazards in a more efficient manner than conventional fall protection. Mr. Korellis stated that a roof anchor must be attached to the residential roof in order to hold the personal fall arrest system. Most residential roofs cannot sustain the weight of a roof anchor, thereby creating additional cost and equipment in order to attach the fall arrest system. Conventional fall protection includes numerous wires, harnesses and belts which creates an entanglement hazard. Roofers move around the roof, and the existence of conventional fall protection hinders free movement and slows job progression. Finally, Mr. Korellis asserted that the new fall protection rule pertains to new roof construction, while 80% of roof work is performed on existing roofs.
Director of the Health and Safety Department of the AFL-CIO, Peg Seminario, testified to the importance of strict OSHA standards. Ms. Seminario supported granting OSHA swifter rulemaking abilities. According to Ms. Seminario, in the several years it took OSHA to propose and adopt the recent Crane and Derricks standard, 22 crane related fatalities could have been prevented. Ms. Seminario asserts that the hearing conducted on the fall protection rule may impede its enactment, and as a result roofing injuries and deaths may occur. OSHA spends numerous years analyzing the effectiveness of proposed rules prior to enactment. Ms. Seminario believes that the comprehensive manner in which OSHA reviews scientific data and consults with American businesses prior to enacting a rule supports the rule’s effectiveness.
The Subcommittee ensured all witnesses that their testimonies will be taken under advisement while they review the impact of the fall protection rule on the economy and industry safety.