The Honorable Major R. Owens
C/O Sudafi Henry, Legislative Director
2305 Rayburn House Office Building
Washington, DC 20515-3211

Representative Owens:

The purpose of this letter is to offer the insight of the American Society of Safety Engineers (ASSE) insight on H.R.1851 which is the House of Representatives companion bill to the Senate version (S.652, Safety and Health Whistleblower Protection Act) introduced by Senators Kennedy and Wellstone. Since you already receive significant amounts of correspondence from ASSE we will skip an introduction and enclose a Society fact sheet as an attachment.

Also enclosed is our comprehensive statement on the safety and health legislation introduced during the Spring, 1999. Several pieces of legislation introduced this spring address whistleblower issues, and ASSE has commented on each of them. These comments are in the statement, but this was our specific position on the Safety and Health Whistleblower Protection Act:

***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.

2. 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.

3. 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 amendments 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.

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. To better understand the responsibilities/functions of the safety professional we have also enclosed a Society brochure titled: Scope and Functions of the Professional Safety Position.

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,

Frank H. Perry, CSP, PE
Society President, 1999-2000

Copy To:          ASSE Board of Directors
                        ASSE Council on Professional Affairs
                        ASSE Governmental Affairs Committee
                        ASSE Chapter Governmental Affairs Chairs
                        ASSE Contact List

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