June 4, 1999

ASSE POSITIONS ON SAFETY AND HEALTH RELATED

LEGISLATION - SPRING, 1999

Introduction

The American Society of Safety Engineers (ASSE), is the oldest and largest Society of Safety Professionals in the world. Founded in 1911, ASSE represents in excess of 32,000 dedicated safety professionals. Included in this membership are Certified Safety Professionals, Professional Engineers, ergonomists, academicians, fire protection engineers, system safety experts, industrial hygienists, physicians, occupational nurses, and an impressive collection of other disciplines, skills, and backgrounds. We pride ourselves on our dedication to excellence, expertise, and commitment to the protection of people, property, and environment on a world-wide basis.

ASSE serves as Secretariat of seven (7) American National Standards Institute Committees (ANSI) developing safety and health standards which are used by private sector organizations as well as state/Federal governmental agencies such as MSHA, OSHA, etc... ASSE members also sit on over forty (40) additional standards development committees and the Society sponsors educational sessions on standards development. The Society also has eleven (12) technical divisions consisting of: Construction, Consultants, Engineering, Environmental, Health Care, Industrial Hygiene, International, Management, Public Sector, Risk Management and Insurance, Mining, and Transportation. The ASSE members included in these divisions are leaders in their field with the knowledge and expertise needed to move safety and health forward on a global level.

ASSE Core Principles

Since the purpose of this statement is to address safety and health related issues, we believe it is appropriate to restate our core principles regarding OSHA, NIOSH, and other safety and health regulatory agencies.

  • ASSE supports safety and health agencies such as OSHA and NIOSH, and believes these organizations help maintain a national focus on the importance of occupational safety and health.

  • The Society believes that compliance is but one facet of an effective/efficient safety and health program.

  • The ASSE encourages taking the size and the nature of an employer’s business into account when scheduling routine inspections, but all occupational safety and health laws should be enforceable regardless of the size of the employer.

  • When appropriate, there is no reason why the Secretary cannot issue a warning instead of a citation. Such action of course, would depend on the situation and the circumstances revolving around it.

  • Reduced penalties for some safety and health violations under some circumstances are a possibility worthy of consideration, and ASSE maintains that the President Clinton reinvention criteria strikes a reasonable balance between the interests of both the employees and employers.

  • ASSE endorses the view that setting numerical goals for inspections and citations have actually worked against the safety and health of the American workplace, and that OSHA's resources should be focused on the causes of workplace injuries/fatalities.

  • The ASSE supports permitting employers to keep internal company audits, reviews, documents, and personal records confidential under most circumstances. This approach will encourage employers to take proactive measures to keep their workplaces safe and healthful.

  • The ASSE supports Employer Defenses, as we believe that "employee conduct/employer good faith efforts" should be considered by OSHA when citing or fining. If management has done all that can be reasonably expected, then ASSE believes that it is counterproductive for OSHA to issue a citation or fine if an employee caused the incident by not following procedures, policies, or utilizing required equipment.

  • ASSE encourages the codification of the "Voluntary Protection Program". It has shown itself to be an excellent tool to reduce workplace injuries/fatalities. The criteria to be accepted into the program is stringent, and we believe it provides a good balance between both the employers and employees.

  • During this time of change, it is necessary for OSHA to look to the private sector for assistance. ASSE reaffirms its commitment to innovative concepts such as third party audits/evaluations.

In line with one of its main missions to enhance sound legislation and public policy, the Society has great interest in national/state safety and health legislation. In fact, the Society has attempted to offer a non-partisan analysis of any legislation which affects safety and health. To this end, we have enclosed our statements addressing the following pieces of legislation:

Senate

  • S.385: Safety Advancement Act for Employees of 1999 (SAFEAct)
  • S.650: Federal Employees Safety Enhancement Act
  • S.651: Wrongful Death Accountability Act
  • S.652: Safety and Health Whistleblower Protection Act
  • S.653: Safer Workplaces Act
  • S.746: Regulatory Improvement Act of 1999

House of Representatives

  • H.R.987: Workplace Preservation Act
  • H.R.1192: OSHA Reform Act of 1999
  • H.R.1427: Safety Advancement for Employees Act of 1999 (SAFEAct)
  • H.R.1434: No Title (Impacts safety committees)
  • H.R.1436: No Title (Impacts OSHA rulemaking)
  • H.R.1437: Small Business Regulatory Enforcement Fairness and Implementation Act
  • H.R.1438: Safety and Health Audit Promotion Act of 1999
  • H.R.1439: Safety and Health Audit Promotion and Whistleblower Improvement Act
  • H.R.1459: Models of Safety & Health Excellence Act

***S.385, The Safety and Health Advancement Act of 1999 (Senator Enzi)

The basic position of ASSE is that S.385 will enhance workplace safety and health in the United States. ASSE supports the establishment and implementation of a third party consultation audit/evaluation services program as good public policy. ASSE issued a statement on this legislation, and it is available on the ASSE website (http://www.asse.org) in the section addressing governmental affairs.

***S.650: Federal Employees Safety Enhancement Act (Senators Wellstone and Kennedy)

The consensus of the Society is to support S.650 as our position is that all Americans are entitled to work in a safe and healthful workplace regardless of whether they are public sector or private sector employees. In fact, we think it is ironic that after almost thirty (30) years since enactment of the Occupational Safety and Health Act (OSHA Act), there are still a significant number of U.S. workers not afforded an equal level of protection.

Our one criticism of such legislation continues to be why are federal employees being given such protection and not all public sector employees. We believe that the bill should be amended to include all public sector employees. We are aware that this would include a significant number of additional employees, but the Society maintains that this is the correct course of action. As a result, and if appropriate, ASSE would also like to offer the following amendment to the legislation:

U.S. Occupational Safety and Health Act of 1970 (29USC, 652 [5] )

The term "employer" means a person engaged in a business affecting commerce who has employees. This also includes but does not all agencies, entities, and representatives of the United States government and or any other state or political subdivision of a state.

***S.651: Wrongful Death Accountability Act (Senators Wellstone and Kennedy)

ASSE supports OSHA because the agency places a focus on the importance of occupational safety and health, and believes that effective enforcement of safety and health laws will help maintain this focus. Our concern is that many safety and health initiatives are attempting to identify one individual as being responsible for safety and health. Our fear is that this person could be the on-staff safety professional. This legislation has the potential of sending safety professionals to prison for significant periods of time due to issues they have no control over. This would serve nobody, would discourage people from entering the safety professionals, and would eventually lead to more injuries, illnesses, and fatalities.

***S.652: Safety and Health Whistleblower Protection Act (Senators Wellstone and Kennedy)

ASSE has significant concern with the suggested amendment to Section 11 [C] of the Occupational Safety and Health Act of 1970. The amendment currently states

(2) No person shall discharge or in any manner discriminate against an employee for refusing to perform the employee's duties when the employee has a reasonable apprehension that performing such duties would result in serious injury or serious impairment of health to the employee or other employees. The circumstances causing the employee's apprehension of serious injury must be of such a nature that a reasonable person would conclude that there is a danger of serious injury or serious impairment of health. This paragraph shall only apply to an employee to the extent that the employee, if possible, communicated to the employer the danger perceived.

While we agree with the intent of the amendment, we see the following as being of concern:

  1. One of the biggest issues currently being debated in occupational safety and health is what does the term "reasonable" truly mean. We understand the concern which generated this legislation, and agree that something needs to be done. However, this legislation is probably not the answer. Here are some examples of how we such this definition being potentially misused. We maintain these job functions could easily meet the definition described above:

  • Under this bill could a taxi cab driver refuse to transport a customer to an area known to be prone to high crime.

  • Could a postal worker refuse to deliver mail in neighborhoods he/she believes post a danger to their safety and health.

  • Could an employee performing material handling functions refuse to perform such functions due to the recent concerns being addressed on ergonomics.

  1. We are aware of the ongoing debate addressing appropriate timelines for the filing of complaints with the Secretary. This bill provides 180 days for filing a complaint and the legislation introduced by Representative Ballenger, Chair of the House Subcommittee on Workforce Protections provides for sixty days. Perhaps the best way to address this issue is to set the timeline at 120 days. It appears to be a reasonable compromise and accomplishes what both sides are proposing to do.
  2. ASSE maintains the current language in the Occupational Safety and Health Act represents good public policy. With the time extension for filing a report, we are reticent to see any additional portions to this section of the Act. The Act already allows for a balance between employers and employees, and we really do not see a compelling reason to initiate these additional changes.

***S.653: Safer Workplaces Act (Senators Wellstone and Kennedy)

ASSE has already taken a position on most of the issues in this legislation, however, we note the definition of "Employer" is different from S.650. We support this definition as it extends coverage to all public sector employees.

***S.746: Regulatory Improvement Act of 1999 (Senators Thompson and Levin)

The Society supports efficient/effect rule making by federal agencies such OSHA, MSHA, EPA, DOT, etc…. However, we also recognize the need for these agencies to reinvent themselves, become more effective/efficient, and greatly improve how they regulate their constituencies. ASSE points out that such agencies help maintain a national focus on the importance of occupational safety and health. This initiative has been debated before, and this legislation appears to be a significant compromise which maintains a balance of interests. ASSE also believes most agencies already perform the functions called out for in the legislation. If anything, this will enable regulatory agencies to show the public that they are functioning in both an efficient and effective manner. This should be of assistance to an agency such as OSHA which has had significant concerns with public relations.

***H.R.987: Workplace Preservation Act (Representative Blunt)

ASSE takes the position that there is adequate science justifying the creation of federal standard addressing ergonomics. This legislation would prohibit such a standard until the completion of a National Academy of Science (NAS) study mandated by Congress is completed. The Society recently took a position on the OSHA Ergonomics Draft Standard proposal where we specifically addressed the issue of science. The Society is convinced there is adequate science justifying the need for the standard. The ASSE comment on this issue will be published on the ASSE website (http:www.asse.org) in our section addressing governmental affairs.

***H.R.1192: OSHA Reform Act of 1999 (Representative Hefley)

ASSE believes that agencies such as OSHA help maintain a national focus on the importance of safety and health. ASSE opposes the provisions in H.R. 1192 which would repeal the following sections of the OSHA Act which are:

Sec. 8 Inspections, Investigations, and Recordkeeping

Sec. 9 Citations

Sec. 10 Procedures for Enforcement

Sec. 11 Judicial Review

Sec. 12 The Occupational Safety and Health Review Commission

Sec. 17 Penalties

The Society’s experience indicates that virtually every industrialized country in the world has some type of national focus on occupational safety and health. We believe this bill would for all practical purposes removes that national focus. While we agree that reinvention of federal agencies should be an ongoing priority, we do not believe it would be prudent to eliminate all of the enforcement capabilities of the federal government in regards to occupational safety and health. For that reason ASSE is strongly opposed to this legislation as it would lead to increased numbers of occupational injuries, illnesses, and fatalities.

***H.R.1427: Safety Advancement for Employees Act of 1999 (Chairman Talent)

The basic position of ASSE is that H.R.1427 will enhance workplace safety and health in the United States. ASSE supports the establishment and implementation of a third party consultation audit/evaluation services program as good public policy. ASSE issued a statement on this legislation in 1997. We are aware there are some differences between this bill and S.385, however, we believe both initiatives are examples of good public policy.

H.R.1434: No Title (Impacts safety committees - Representative Ballenger)


ASSE supports this legislation as it would permit employees and employers to work together on workplace safety and health issues. We maintain this legislation would increase the efficiency and effectiveness of both employers and employees when identifying and correcting workplace hazards in addition to looking at how the worksite can improve its level of compliance. We see this legislation as providing winning strategy to enhance occupational safety and health for both employers and employees. We are hard pressed to understand why there should be any resistance to this legislation.

***H.R.1436: No title (Impacts standards development - Representative Ballenger)

ASSE is puzzled by the intent of this legislation. We maintain OSHA already performs this function through its implementation of horizontal or vertical standards. For example, a standard on confined spaces will extend across most industries, and to try and identify which industries are affected is neither efficient or effective. It is up to the employer, regardless if their North American Industrial Classification Code (NAIC), to review their workplace and decide which regulations/standards apply. Another issue could be that specific companies within an industry are affected by a standard/regulation while another is not, (e.g. dip tanks). ASSE maintains the approach called for in this bill does not add anything to the enhancement of occupational safety and health, and could lead to even more confusion on the part of employers and employees.

***H.R.1437: Small Business Regulatory Enforcement Fairness and Implementation Act (Representative Ballenger)

ASSE supports the concept of this legislation as it can only lead to a more effective/efficient approach to safety and health. ASSE is a strong believer in enforcement, and believes that all safety and health laws should be enforced regardless of a company’s size. We believe this approach does not change that commitment, but instead recognizes the primary objective is to correct the hazard. Many small businesses may not be aware they are in violation of the law. ASSE is unclear if a fine really will do anything to improve small business safety and health. This legislation provides for a balance of interests. It would force the small business operator to correct the hazard and avoid the fine, or else face a legal issue with OSHA. Obviously correcting the hazard would appear to be the better approach. In fact, ASSE has historically taken the following positions on these type of issues:

The ASSE encourages taking the size and the nature of an employer’s business into account when scheduling routine inspections, but all occupational safety and health laws should be enforceable regardless of the size of the employer.

When appropriate, there is no reason why the Secretary cannot issue a warning instead of a citation. Such action of course, would depend on the situation and the circumstances revolving around it.

Reduced penalties for some safety and health violations under some circumstances are a possibility worthy of consideration, and ASSE maintains that the President Clinton reinvention criteria strikes a reasonable balance between the interests of both the employees and employers.

Our only concern is that the bill should look at providing a specific small business operator with relief on one or two occasions. ASSE would be opposed to this approach if a small business operator continued to have numerous violations, but could avoid a fine by correcting them after an inspection. While we believe such instances would be minimal, however, the possibility of abuse could exist. Also, if the violation resulted in a death or hospitalization of three or more employees, and the employer knew there was a problem, such relief should not be a possibility. We are aware the bill addresses these issues to some extent, however, we believe they are of significance. Such relief should be meant to benefit those employers who are proactive in enhancing occupational safety and health and not those who choose to ignore it until there is a problem.

***H.R.1438: Safety and Health Audit Promotion Act of 1999 (Representative Ballenger)

ASSE supports the intent of this legislation, and believes it is a proactive way to encourage ongoing efforts to remove occupational safety and health hazards. We are aware of several situations where a federal inspector requested copies of audits/reports even before conducting his/her own inspection. We see this type of action as having a chilling effect on the good faith efforts of employers to safeguard the safety and health of their workforce.

We suggest the following change to Section II (4)(A)(ii) in order to remain consistent with the current practices of OSHA:

(ii) Such records, reports, or other information may be required to be disclosed to the extent that--

(I) the record, report, or other information is sought as part of a criminal proceeding, an incident resulting in the hospitalization of three or more employees, or a fatality investigation; or

***H.R.1439: Safety and Health Audit Promotion and Whistleblower Improvement Act (Representative Ballenger)

ASSE has already taken a position on most of the issues in this legislation, and these points are addressed within this document.

***H.R.1459: Models of Safety & Health Excellence Act (Representatives Pietri and Andrews)

ASSE supports this legislation since it codifies the OSHA Voluntary Protection Program. Of interest is that the legislation would encourage expansion of the program into smaller businesses. While there has been some debate whether small business would have the resources to qualify, we believe a committed small business operator could participate. ASSE has historically taken this position on VPP codification:

ASSE encourages the codification of the "Voluntary Protection Program". It has shown itself to be an excellent tool to reduce workplace injuries/fatalities. The criteria to be accepted into the program is stringent, and we believe it provides a good balance between both the employers and employees.

Conclusion

ASSE has made a conscientious decision to comment on all safety and health related legislation. We believe that only be taking such positions can safety and health professionals be assured that the national focus on occupational safety and health is maintained.

We thank you for your attention to this matter, and if there are any questions or concerns with these positions please feel free to contact the Society.

Sincerely,

Fred F. Fleming, CSP, OHST
Society President, 1998-1999

FF/TRF/CORRS1180

     

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