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OSH Political Season Begins in DC

Posted in on Fri, Apr 5, 2013

The political season for occupational safety and health has begun, as uncertainty over how long the impact of sequestration on safety and health-related agency budgets continues.  The current effort to reform the OSH Act and Mine Act are summarized below by ASSE’s Federal Representative, Adele Abrams, Esq.  ASSE commented on reform efforts in July 2010 when Congress last attempted to move forward on the issues.  Since, ASSE has developed its own proposal for OSH Act reform aimed at helping OSHA and NIOSH operate more effectively.  The Government Affairs Committee will be meeting the first week in May in Washington, DC, in conjunction with NAOSH Week events in DC, and the current reform effort will be on the Committee’s agenda.

Also reintroduced is the bipartisan effort (http://www.help.senate.gov/newsroom/press/release/?id=1f1932db-064c-42b2-8148-be16b81951b2) led by Senator Landrieu (D-LA) and Senator Enzi (R-WY) to put into law the Voluntary Protection Program that ASSE strongly supported previously.  A bill by Representative George Miller (D-CA) to require OSHA to adopt a combustible dust standard has again been introduced for this Congress (http://democrats.edworkforce.house.gov/press-release/bill-prevent-industrial-dust-explosions-re-introduced-house-0).  ASSE commented to Congress on similar legislation in 2008.

Generally, given the continued political divide in Congress, no one expects meaningful movement in occupational safety and health legislation any time soon.  In fact, ASSE is concerned that not enough attention will be paid to the need to update legislative approaches to protecting workers that are now 43 years old and, in too many ways, are not consistent with best practices in a world economy where the leading employers understand that risk management of workplace safety and health is a key element to their competitiveness.  Even without significant movement of legislation, ASSE will continue to voice that concern to Congress and others whose decisions or lack of decision impact the work of ASSE members.

Reform Summaries

HR 1373: The Robert C. Byrd Mine Safety Protection Act of 2013 was introduced on March 17, 2013, by Rep. George Miller (D-CA) and 17 democratic cosponsors.
It is a modified version of the 112th Congress version, leaves out any provisions related to OSHA, and eliminates the previous inclusion of MSHA Pattern of Violations criteria (although it would formally adopt the agency’s January 2013 final rule, requiring an act of Congress to modify it in the future, and it doubles penalties for mines in POV status).  The legislation expands whistleblower protections significantly, adding a new 180 day statute of limitations for complaints, imposing mandatory civil penalties of between $10,000-100,000 for mine operators who violate miners’ rights, and adding criminal sanctions for whistleblower violations. The proposed law also increases existing civil penalties for certain non-flagrant violations from $70,000 to $220,000, heightens criminal monetary penalties, and increases criminal sanctions for “knowing” violations to five years for a first offense. Definitions of imminent danger and “significant and substantial” violations are broadened to encompass more situations.  Additional enforcement-related measures include giving MSHA greater authority to obtain injunctions to close mines with a course of conduct that threatens the health and safety of miners, or where operators are delinquent in paying penalties. Interest would also be charged on contested penalties, in the event that the contest was unsuccessful. Other provisions broaden the rights of victims and their families, create a panel headed by NIOSH (with management and labor representatives) to investigate fatal accidents involving three or more individuals, and mandate certain new standards for underground coal mines, as well as an additional hour of training annually for all miners on the topic of miners’ rights, taught either by MSHA or an independent trainer approved by the agency. Finally, MSHA would be given unlimited subpoena power to obtain documents and interview witnesses privately, and MSHA could challenge in court any joint representation of a company and its “agents” if MSHA believed there was a conflict of interest.

S. 665: The Protecting America’s Workers Act (PAW Act) was reintroduced on March 22, 2013, by Sen. Patty Murray (D-WA) and 10 Democratic cosponsors. Although the full text of the legislation is not yet available, the proposed legislation carries over many of the provisions from the 2011/12 version, including: expansion of protections to public sector workers in federal OSHA states, increased OSHA civil penalties (with a mandatory minimum $50,000 penalty for willful violations resulting in a worker’s death), and changing criminal violations to felonies where a repeated or willful violation results in a worker’s death or serious injury. S. 665 also expands whistleblower protections, including expanding the time limit to report a complaint from 30 days to 180 days and modifying adminstrative procedures. The rights of workers and their families are heigitened, including giving them the right to meet with agency investigators, and employers would be required to inform workers of their OSHA rights. New to the legislation this year is a provision amending the General Duty Clause to encompass all workers on site (currently the GDC can be cited only where an employer’s own workers are exposed to the hazard, and not if only contractors are exposed). Another new provision directs the agency to revise regulations for site-controlling employers to keep a site
log for all recordable injuries/illnesses on the site, regardless of who supervises contract or contingent workers.

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