OSHA Reform: "Partnership" with Employers
Order Code IB10042
CRS Issue Brief for Congress
Received through the CRS Web
OSHA Reform:
“Partnership” with Employers
Updated January 12, 2001
Edward B. Rappaport
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress
CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
General Political Considerations
“Reinventing” OSHA
Legislative Initiatives in General
The SAFE Act
Incremental Bills
Whistleblower Protection
Ballenger Package
Cost-Benefit Principles in Standard Setting
Other Bills
Initiatives by the Clinton Administration
New Standards
Ergonomics
Comprehensive Workplace Safety Programs
LEGISLATION
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
FOR ADDITIONAL READING
CRS Reports
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OSHA Reform: “Partnership” with Employers
SUMMARY
The Occupational Safety and Health
methods all safety-related agencies (not just
Administration has occasioned controversy
OSHA) would use in fashioning their regula-
ever since its inception in 1971, both for being
tions. S. 746 would have codified that cost-
too strict with employers and not being strict
benefit analyses be done for major new regula-
enough. In the last few years most of the
tions (currently required by Executive Order),
OSHA reform bills in the Congress have been
and would have subjected these analyses to
presented as a response to the complaints of
peer review and, potentially, judicial review.
small business. The common theme is to shift
However, the agencies would not be required
the agency away from levying fines and toward
to show quantitatively that benefits of their
cooperatively working with employers to solve
final rules exceed the costs. S. 59/H.R. 1074
problems.
called for an annual review of regulations on
the books, with recommendations, by the
The most prominent of the bills in the
Office of Management and Budget. (S. 746
106th Congress aimed at fundamentally chang
and H.R. 1074 were reported by committee.)
ing safety regulation was the SAFE Act
(Safety Advancement for Employees Act, in
The Clinton Administration stressed
related but not identical versions as H.R.
whistleblower protection as a legislative prior-
1427/S. 385). The centerpiece was a program
ity, arguing that the protections afforded by
under which employers could contract with
the OSH Act in 1971 are not as effective as
private-sector consultants and, if complying
other, more recent, Federal laws. S. 652 and
with their recommendations, be exempt from
H.R. 1851 would have allowed a private right
OSHA civil penalties for the following year.
of action by complainants, whereas currently
(S. 385 was reported by committee on April
only the Labor Department can bring actions
29, 1999.)
on workers’ behalf. Moreover, these bills
would have increased recoveries to include full
There were also a number of bills in the
compensation and punitive damages. (Neither
106th Congress dealing with particular issues.
advanced beyond committee.)
The chairman of the House Subcommittee on
Workforce Protections introduced a package
Meanwhile, the Clinton Administration
that would: allow for a waiver of penalties for
moved forward by regulation on some impor-
some violations by small businesses (H.R.
tant new standards. The new ergonomic
1437), require that risk-benefit analyses be
standard requires all employers to respond to
done on an industry by industry basis (H.R.
reported injuries by developing plans to deal
1436), provide new procedures for whistle-
with a potentially wide range of ergonomic
blower protection suits (H.R. 1439), assure
hazards. Congress almost passed a legislative
confidentiality for employer self-audits (H.R.
rider to prevent the issuance of an ergonomic
1438), and clarify application of the National
standard, but the Administration was able to
Labor Relations Act (H.R. 1434). (None of
complete the rulemaking. Opponents of the
these were reported by the committee.)
measure could still try to overturn it by court
action or by use of the Congressional Review
Several bills would have reformed the
Act.
Congressional Research Service ˜ The Library of Congress
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MOST RECENT DEVELOPMENTS
On November 14, 2000 the Clinton Administration issued its standard on ergonomics,
making moot a provision in the then pending appropriation bill that would have prevented
its issuance. Opponents of the rule have already sued, and may also try to invoke the
Congressional Review Act to block it.
BACKGROUND AND ANALYSIS
The Occupational Safety and Health Administration (OSHA) has operated since its
creation in 1970 under an authorizing statute (“OSH Act,” P.L. 91-596) that was never
directly amended until 1998 (when the U.S. Postal Service was brought under its jurisdiction)
despite many attempts to do so. Its mission is to assure a safe and healthful workplace for
all working Americans within its jurisdiction (about 85% of the nation’s workforce) and it has
operated in recent years with a budget of about $300 million. The agency has occasioned
controversy since its inception, both by acting and failing to act. Up to and through the 103rd
Congress (1994), most legislative initiatives were directed toward strengthening OSHA’s
authority, but with the 104th Congress, significant efforts have been made to constrict its
authority. In the past, when initiatives arose in the Congress to redirect the agency, OSHA
responded by moving sufficiently to preempt new legislative mandates. While resolution of
current controversies is unpredictable, it is noteworthy that OSHA is already in a process of
simplifying its regulations, restructuring its offices, and giving employers new options for
“partnership” with the agency.
The Clinton Administration and congressional leaders seemed to be in basic agreement
that the relationship between OSHA and the businesses it regulates needs redirection. A
political consensus seems to be emerging that there needs to be greater emphasis on
technical assistance to employers rather than enforcement. An approach focused exclusively
on law enforcement is not enough, if only because the agency will never have the resources
to inspect frequently every workplace. Employers should be encouraged and assisted to make
safety an integral part of the way they do business, while traditional enforcement powers are
reserved for those employers who are clearly negligent. But differences arise over a host of
particulars. Current OSHA reform is an area where, in important respects, “the devil is in the
details.”
General Political Considerations
Surveys of small business owners have repeatedly shown that they consider OSHA to
be the most difficult of the federal regulatory agencies to deal with, and the bills discussed
here are largely a response to such sentiment. Big business is not particularly happy with
OSHA either, but their opposition is relatively muted because they have professional staffs
dealing full time with safety and their workers’ compensation is self-insured or experience-
rated (i.e., safety saves them money). Their concern is more that “reasonable” standards be
written so that they know exactly what is expected of them. The other principal political
actor — the trade union movement — generally wants OSHA regulation to be as strict as
possible, but this orientation has not received prominent representation since 1994 by either
congressional or Administration leaders.
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Debate over OSHA has long been polarized. On one side, the “reform” camp portrays
employers as essentially well-meaning and concerned for their employees’ welfare, and paints
OSHA as a bureaucracy most interested in scoring points with “gotcha” citations. In this
world view, OSHA needs to be transformed into a helpful consultant. The opposing, more
traditional view is that employers will cut corners on safety as much as they can, while OSHA
is the “white knight” riding to the rescue of employees. If enforcement powers are never
exercised, few employers will sign up for “voluntary” consultation programs.
These opposing views come most clearly to the fore in the issue of penalties for citations.
Small business representatives maintain that many citations arise because the standards are
so complicated that employers don’t understand them. Thus, it is only fair that they be given
a chance to correct them before being fined. Further, corrective expenditure directly
improves the situation, which fines do not. On the other side, advocates of strict enforcement
believe that many employers will only make the workplace as safe as they have to: If there is
no extra cost in being cited, they just will not correct dangerous situations until an inspector
comes and specifically directs them to do so.
“Reinventing” OSHA
Legislative Initiatives in General
Since the beginning of the 104th Congress a number of measures have been introduced
with the common theme of shifting OSHA’s emphasis away from levying fines and toward
cooperatively working with employers to provide guidance and to solve problems. Sponsors
of these bills maintain that most employers want to make their workplaces safe and lack only
information about how to do so. Although there is wide agreement that OSHA must retain
enforcement powers to deal with those employers who would otherwise disregard safety, bill
sponsors want OSHA to give all businesses a chance and not immediately “treat them as
criminals.” Legislatively, there are two basic tracks: comprehensive reform bills and
narrower, incremental bills.
The SAFE Act
The most prominent of the comprehensive reform bills has been the Safety Advancement
for Employees Act (SAFE Act), S. 385 (Enzi) in the 106th Congress. (A related bill in the
House was H.R. 1427 (Talent)). S. 385 would have made a number of specific changes in
agency functioning. Its centerpiece was a new program under which employers could
contract with private-sector safety consultants and, if gaining from them a certificate of
compliance, be exempt from OSHA civil penalties for the following year. One of the
requirements for compliance would be that the workplace must have a “safety and health
program,” that is, an organized, participatory system for identifying and mitigating the
particular hazards of each workplace. As specified by S. 385, these programs would be
similar to — though differing in key details from — the programs long advocated by OSHA
itself and which it has tried to embody in an administrative rulemaking (see below).
Advocates of the SAFE Act claim that it would improve safety by bringing to bear
professional expertise in a greater number of workplaces than OSHA inspectors could ever
reach. Opponents express concern that there will be temptations to “buy” exemption from
enforcement by dealing with lax or unethical consultants.
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Other provisions of S. 385 included:
! authorization for issuance of a warning in lieu of a citation in cases where an
employer “in good faith acts promptly to abate a violation;”
! authorization for employers to conduct alcohol and substance abuse testing
under specified guidelines;
! a pilot program for expediting voluntary consultations with OSHA for small
businesses, including an opportunity to correct violations without being
fined; and
! codifications (with some changes) of current programs, such as the
Voluntary Protection Program.
S. 385 differed in a number of respects from its predecessor in the 105th Congress, in
response to various comments. Thus, the exemption from penalties was shortened from two
years to one, and the requirement of adopting a workplace safety program was added.
Excluded from the new bill were (a) a provision requiring new regulations to be reviewed by
the National Academy of Sciences, (b) additional requirements for employees filing safety
complaints, and (c) authorization of labor-management safety committees outside the usual
collective bargaining framework. S. 385 was reported by the Senate Committee on Health,
Education, Labor and Pensions on April 29, 1999.
Incremental Bills
Whistleblower Protection. The Clinton Administration identified whistleblower
protection as its highest legislative priority for OSHA at the outset of the 106th Congress,
claiming that the OSH Act of 1971 falls short of such protections in many other more recent
laws. Complaints are a key element in the safety compliance system, as OSHA has only
limited resources for conducting random (“programmed”) inspections. Even though the OSH
Act prohibits employers from retaliating against employees who report safety problems to
OSHA, it has been estimated that perhaps two-thirds of employees filing complaints
subsequently lose their jobs. Some business groups argue, though, that many complaints are
spurious, for example if a union threatens to call for OSHA inspections as a pressure tactic.
Various bills were introduced; H.R. 1439 (Ballenger) was approved by the House
Subcommittee on Workforce Protections on May 19, 1999. It would have extended the
employee’s filing deadline for a claim of retaliation (to 60 days instead of 30) and shorten the
Labor Department’s allowed response time (to 20 days instead of 90). Most importantly, it
would have allowed for private action if the Labor Department does not pursue the case in
a timely manner. These claims would be heard by the Occupational Safety and Health Review
Commission rather than by a federal court, though they could be appealed to the courts.
The Clinton Administration favored a reform approach along the lines of S. 652
(Wellstone and Kennedy) and H.R. 1851 (Owens). These bills, as well, would have allowed
workers to bring their own cases before an administrative law judge, lengthen the time for
workers to file complaints about retaliation (to 180 days), and expedite resolution. Going
beyond the provisions of H.R. 1439, though, they would have explicitly expanded the
remedies available by including punitive damages and compensation for the complainant’s
legal costs. (There is some legal dispute as to whether punitive damages are authorized by
current law.)
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Aside from legislative changes, it has been suggested (by the Labor Department
Inspector General, among others) that OSHA itself could do more to pursue retaliation cases.
Only about 1% to 2% of these cases brought to OSHA are referred to the Labor solicitor for
prosecution; another 12% to 15% result in settlement with some compensation. Arguably,
though, the agency is hamstrung in pushing for stronger settlements because current law is
limited in how much complainants could receive even if they win in court. One action the
agency has begun is to better publicize to workers generally that they do have some
whistleblower protections under current law and practice.
Ballenger Package. As he did in the 105th Congress, the Chairman of the House
Subcommittee on Workforce Protections (Mr. Ballenger) introduced a package of focused
OSHA reform bills. These would have:
! Authorized employers to deal with employees in joint committees and other
collaborative ways on safety-related issues without running afoul of the
National Labor Relations Act (H.R. 1434);
! Required OSHA to state to which industries new standards will apply, and
perform its risk-benefit analyses on an industry-specific basis (H.R. 1436);
! Waived penalties for “non-serious” violations by small businesses when they
promptly abate the violations (H.R. 1437);
! Assured confidentiality, under specified conditions, for employers’ self-audits
of safety (H.R. 1438, also as part of H.R. 1439); and,
! Provided for private right of action (before the Occupational Safety and
Health Review Commission) for workers claiming they were retaliated
against for making safety complaints (second part of H.R. 1439).
Cost-Benefit Principles in Standard Setting. Several bills would provide more
oversight for the regulations of many agencies. (In the case of OSHA, safety regulations are
known as “standards.”) They would require that the agencies report on the costs and benefits
of their regulations, and that these reports be examined by higher authorities (such as the
Office of Management and Budget) and independent peer reviewers. The bills would not
necessarily change any particular regulation, but the explicit attention paid to costs, in
particular, could make some measures politically untenable.
The most prominent of these bills in the 106th Congress was S. 746 (Levin, Thompson
et al.), which was a further revision of S. 981 from the 105th Congress, which bill had been
revised in July 1998 after negotiations with the White House. S. 746 would have required
safety-related agencies to perform cost-benefit analyses on major new rulemakings (as already
required by Executive Order), and submit these analyses to outside peer-review when the
regulation would have an economic impact of more than a $500 million. The analysis could
be challenged in court, but only on the grounds that the agency was arbitrary and capricious.
The analysis would have to lead to a determination as to whether the benefits justify the costs,
but the agency’s final decision on the regulation would not have to follow from that
determination. This is important in the case of OSHA, as the OSH Act, as interpreted by the
courts, requires that standards be as protective as possible regardless of cost, limited only by
what is technically and economically feasible. S. 746 was reported by the Committee on
Governmental Affairs in July, 1999.
Another approach to the disclosure of costs and benefits was embodied in S. 59
(Thompson) and H.R. 1074 (Bliley), the Regulatory Right-to-Know Act. These would have
required the Office of Management and Budget (OMB) to compile annually a detailed report
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on the costs and benefits of all major regulations currently on the books (by all of the
regulatory agencies), and make recommendations for revising inefficient regulations. They
would also have the OMB prescribe guidelines for agencies to follow in doing their cost-
benefit analyses. H.R. 1074 was passed by the House on July 26, 1999.
Outside review panels would have been required by bills applying specially to OSHA and
the Mine Safety and Health Administration (MSHA). H.R. 2639 (Bonilla) would have
required review of new OSHA standards by panels of technical experts. S. 1114 (Enzi)
would have extended to MSHA a procedural step that currently applies to OSHA and the
Environmental Protection Agency. Specifically, S. 1114 would have required that new
standards be reviewed at a relatively early stage by panels representing small mine owners.
It was reported by the Committee on H.E.L.P. in January, 2000.
Other Bills. There were many other OSHA-related bills in the 106th Congress, most of
these dealing with specific hazards, with OSHA’s enforcement of standards (“compliance”),
or with the scope of coverage of OSHA jurisdiction. Only one, the needlestick bill, was
enacted and, indeed, it was the only one to be reported by committee.
The problem of needlesticks and other injuries suffered by health care workers who use
sharp instruments (“sharps”) led to P.L. 106-430 [H.R. 5178 (Ballenger and Owens) / S. 3067
(Jeffords)]. This amends OSHA’s standard on bloodborne pathogens so as to require health
care facilities to explicitly (and with staff input) consider using needleless systems and other
“safer medical devices.” The needlestick issue also was brought into the Labor appropriations
bill when the Senate added provisions (S.Amdt. 3629 and S.Amdt. 3630) declaring a sense
of the Senate and allocating $10 million for an information clearinghouse on safer “sharps.”
However, these provisions were dropped in conference.
As to compliance, various bills would make the regime either more or less stringent.
Tightening was exemplified by S. 651 (Wellstone and Kennedy), which would have allowed
criminal prosecution as a felony (currently classified as a misdemeanor) of cases where willful
violations of the OSH Act lead to fatalities. Easing of the compliance regime would have
been achieved by H.R. 391 (McIntosh) (elimination of penalties for most first-time violations
of paperwork rules of most agencies) and H.R. 1987 (Goodling) / S. 1158 (Hutchinson of
Arkansas) (providing recovery of attorneys’ costs when accused employers prevail on the
issues).
OSHA’s jurisdiction would have been expanded to state and local government workers
by H.R. 776 (Andrews), to U.S. Department of Energy Facilities by H.R. 3907, and to federal
workers generally by S. 650 (Wellstone and Kennedy). Several bills were introduced in
January 2000 in response to an OSHA advisory about the coverage of “telecommuters.” The
agency then revoked its opinion letter and launched public consultations on the proper
treatment of potential hazards of home office work. On February 25 it was announced that
home offices would be exempted from random inspections, and that employers would not be
expected to inspect their employees’ homes. OSHA did reserve the right to follow up on
referrals indicating dangerous conditions.
Initiatives by the Clinton Administration
The Clinton Administration included several projects for OSHA in its “reinventing
government” initiative. These include simplifying the language of safety standards; providing
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on-line, interactive guides to the more complex standards; restructuring area offices; and
fashioning a “construction directorate” to deal specifically with the unique features of that
important sector. Generally speaking, these projects successfully achieved their limited
objectives.
A more ambitious effort, the Cooperative Compliance Program (CCP), had to be pared
back significantly after being challenged in court. Under CCP, firms with the worst records
of injuries and violations were to be given special attention. They would have the choice of
entering the program, getting technical assistance and a chance to improve their performance,
or not entering, which could mean a heightened degree of inspections and enforcement. But
after an adverse court decision (Chamber of Commerce v. OSHA, D.C. Circuit, No. 98-1036,
9 April 1999), OSHA went forward with a plan embodying only part of CCP, namely, the
targeting of inspections according to firm-specific accident rates.
New Standards
Ergonomics. Improper ergonomic design of jobs is one of the leading causes of work-
related illness, accounting for perhaps a third of employers’ costs under workers’
compensation. Due to the wide variety of circumstances, however, any comprehensive
standard would necessarily be complex and costly, while scientific understanding of the
problem is not yet complete. Nevertheless, proponents believe that it would be worth the
effort, preventing extensive pain, suffering, medical expense and lost productivity.
Congressional debate has been framed in terms of how much is known or not known.
Opponents of immediate rulemaking emphasize the gaps in knowledge and argue for further
study; OSHA and other proponents of a rule say that the problem is urgent and that enough
is known to begin bringing it under control.
On November 14, 2000, the Occupational Safety and Health Administration (OSHA)
issued its ergonomics standard. It requires employers to set up control programs for any job
categories where “work-related musculoskeletal disorders” are reported. These programs
include hazard identification and control, employee participation, medical management, and
training. (However, if a “Quick Fix” option resolves the reported problems within 90 days,
the second level would not be required.) “Medical management” means, among other things,
that convalescing employees could be excused from work (or regular work assignments) with
up to normal pay for up to 90 days.
Legislative riders to the Labor Department appropriations bills have been enacted
repeatedly since 1995 to prevent OSHA from issuing a final standard. Opponents of OSHA
action alleged that the agency was trying to rush the standard through with inadequate public
input, deliberation, or scientific basis. In particular, they believe that OSHA should have
waited to take into account a review of the literature by the National Academy of Sciences,
which is being conducted pursuant to a Congressional mandate. In June 2000 both chambers
added an amendment to the Labor Department appropriations bill (H.R. 4577) to prevent
issuance of a final rule at least through FY2001. This became one of the most hotly contested
issues in concluding a conference committee report and reaching agreement with the President
on the appropriation bill. Before final agreement was reached, however, OSHA issued the
final rule and rendered moot the question of whether it would be allowed to do so. However,
active opposition continues. Suits have been brought by both business and labor groups, and
Congressional opponents may seek to invoke the Congressional Review Act (5 U.S.C.,
Sections 801-808) to overturn the rule.
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Comprehensive Workplace Safety Programs. For several years OSHA has given high
priority to a “workplace safety and health programs” rule, but was unable to promulgate it
in final form during the Clinton administration. What the rule would do is require virtually
all employers to examine the hazards in their particular worksites and devise a formal plan to
address those hazards. A keynote of such programs, as formulated by OSHA, is the full
participation of employee representatives throughout the process.
Draft language was released in November, 1998 but, in light of the court decision on the
Cooperative Compliance Program, it appears that a workplace programs rule would be
considered a “standard” that imposes new substantive obligations on employers. Hence, it
could only be issued after a formal notice, hearing and comment process, and OSHA has
deferred action indefinitely.
OSHA maintains that workplace programs are very effective at reducing risks, to the
benefit of employers (through reduced worker compensation costs) as well as employees.
Moreover, workplace programs allow tailoring to the particular circumstances of the business,
rather than relying exclusively on the relative inflexibility of “one size fits all” standards.
Consequently, many businesses, both unionized and non-unionized, have already implemented
workplace safety programs voluntarily.
Nevertheless, the most prominent business associations vigorously oppose adoption of
a programs rule. Their objections are that it is costly (especially for small business), it
“sneaks” into practice a number of safety standards that OSHA could not promulgate in the
proper manner, and it may upset the balance of rights and responsibilities established by
federal labor law. They agree that well-structured programs can save employers money, but
note that they are being adopted voluntarily to the extent that this is so. A rule would reduce
flexibility to the extent that it is specific, but open employers to capricious enforcement if it
is made too flexible.
LEGISLATION
P.L. 106-430
[H.R. 5178 (Ballenger and Owens)/S. 3067 (Jeffords)]
Needlestick Safety and Prevention Act. Revises OSHA standard on bloodborne
pathogens by requiring health care facilities to explicitly consider and adopt, in consultation
with staff, the appropriate use of safer medical devices to prevent injuries from sharp
instruments. Requires employers to maintain a “sharps” injury log. H.R. 5178 introduced
September 14, 2000, referred to Committee on Education and the Workforce, Subcommittee
on Workforce Protections. Approved by Subcommittee September 19. Called up to House
floor and passed under suspension, October 3. Taken up and passed by Senate, October 26.
Signed by President November 6.
H.R. 987 (Blunt)/S. 1070 (Bond)
Prevents OSHA from promulgating a standard on ergonomics before the National
Academy of Sciences completes a review of the scientific literature. H.R. 987 introduced
March 4, 1999, referred to Committee on Education and the Workforce, Subcommittee on
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Workforce Protections. Approved by subcommittee May 19, approved by full committee
June 24. Passed House by vote of 217-209, August 3. S. 1070 introduced May 18, 1999;
referred to Committee on Health, Education, Labor and Pensions.
H.R. 1074 (Bliley)/S. 59 (Thompson)
Regulatory Right to Know Act. Bills not identical, but both would generally: Require
annual statement by the Office of Management and Budget of costs and benefits of existing
regulatory programs, and recommendations regarding duplications and inconsistencies.
Require agencies to follow uniform guidelines for measuring costs and benefits of proposed
regulations. H.R. 1074 introduced March 11, 1999, referred to Committee on Government
Reform, Subcommittee on National Economic Growth. Subcommittee reported measure in
the nature of a substitute April 20. Full committee reported, amended, June 7 (H.Rept. 106-
168). Passed House, amended, by vote of 254-157, July 26. S. 59 introduced January 1999;
referred to Committee on Governmental Affairs. Hearing held April 22. (Senate Hrg. 106-
180).
H.R. 1192 (Hefley)
Repeals enforcement provisions of the OSH Act, provides for technical assistance for
small businesses. Clarifies application of National Labor Relations Act. Introduced March
18, 1999; referred to Committee on Education and the Workforce, Subcommittee on
Workforce Protections.
H.R. 1427 (Talent)/S. 385 (Enzi)
Safety Advancement for Employees Act (SAFE Act). Allows employers to consult with
private safety consultants and gain exemption from OSHA civil penalties, for a year at a time.
Authorizes warnings in lieu of citations in some cases. Allows employers to conduct alcohol
and substance abuse testing under certain guidelines. Codifies and expands current programs,
such as Voluntary Protection. H.R. 1427 introduced April 15, 1999; referred to Committee
on Education and the Workforce, Subcommittee on Workforce Protections. S. 385
introduced February 6, 1999; referred to Committee on HELP, Subcommittee on
Employment, Safety and Training. Reported, amended, by full committee October 28
(S.Rept. 106-202).
H.R. 1434 (Ballenger)
Authorizes employers to deal with employees in any capacity on safety and health issues,
notwithstanding National Labor Relations Act. Introduced April 15, 1999; referred to
Committee on Education and the Workforce, Subcommittee on Workforce Protections.
Hearing held May 13.
H.R. 1436 (Ballenger)
Requires that cost-benefit analyses be done on proposed regulations on an industry-
specific basis. Introduced April 15, 1999; referred to Committee on Education and the
Workforce, Subcommittee on Workforce Protections.
H.R. 1437 (Ballenger)
Waives penalties for non-serious violations by small businesses if violations are promptly
abated. Introduced April 15, 1999; referred to Committee on Education and the Workforce,
Subcommittee on Workforce Protections.
H.R. 1438 (Ballenger)
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Prevents information from employer self-audits from being used in enforcement actions
except under certain conditions. (Substance of this bill also found in H.R. 1439.) Introduced
April 15, 1999; referred to Committee on Education and the Workforce, Subcommittee on
Workforce Protections. Hearing held April 21.
H.R. 1439 (Ballenger)
Modifies whistleblower protection provisions of OSH Act. Provides for an
administrative right of action by the claimant. Also includes audit confidentiality provisions
of H.R. 1438. Introduced April 15, 1999; referred to Committee on Education and the
Workforce, Subcommittee on Workforce Protections. Approved by subcommittee May 19,
1999.
H.R. 1851 (Owens)
Strengthens whistleblower protection provisions of OSH Act. Introduced May 18,
1999; referred to Committee on Education and the Workforce.
H.R. 1987 (Goodling)/S. 1158 (Hutchinson of Ark.)
Provides recovery of attorney’s fees by employers or unions who prevail in cases
brought by OSHA or the National Labor Relations Board. H.R. 1987 introduced May 27,
1999; referred to Committee on Education and the Workforce. Reported, amended, October
14 (H.Rept. 106-385). S. 1158 introduced May 27, 1999; referred to Committee on Health,
Education, Labor and Pensions, Subcommittee on Employment, Safety and Training. Hearing
held July 29.
H.R. 2639 (Bonilla)
Requires “broadly representative,” independent panels to review the scientific and
economic data supporting new OSHA standards. Introduced July 29, 1999; referred to
Committee on Education and the Workforce, Subcommittee on Workforce Protections.
H.R. 3518 (Davis of Va.)
Makes OSH Act inapplicable to employment performed in an employee’s residence with
use of electronic devices. Introduced January 24, 2000; referred to Committee on Education
and the Workforce, Subcommittee on Workforce Protections.
H.R. 3530 (Shaw)
Makes OSH Act inapplicable to employment performed in an employee’s residence.
Introduced January 24, 2000; referred to Committee on Education and the Workforce,
Subcommittee on Workforce Protections.
H.R. 3907 (Bliley)
Makes Department of Energy Facilities subject to occupational safety regulation by the
Nuclear Regulatory Commission (for radiological risks) and by OSHA (all other occupational
safety risks). Introduced March 14, 2000; referred to Committees on Commerce, Science,
Armed Services, and Education and the Workforce. Hearing held by Commerce
Subcommittee on Energy and Power, March 22.
H.R. 4098 (Hoekstra)
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Makes OSH Act inapplicable to office employment performed in an employee’s
residence. Requires OSHA to conduct a rulemaking to define home office employment and
to specify application of OSHA standards to other types of home work. Introduced March
28, 2000; referred to Committee on Education and the Workforce.
H.R. 4577 (Porter)
Labor, health and education appropriations bill. Section 103 of House version, as
reported by committee, prohibits use of funds to issue a standard on ergonomic protection.
H.Amdt. 760 (Traficant) would strike that provision. Amendment rejected June 8, 2000 on
vote of 203-220. Bill passed House June 14. Senate bill as reported by committee did not
have an ergonomics restriction. S.Amdt. 3593 (Enzi) would bar issuance of standard during
FY2001. Amendment adopted by vote of 57-41 on June 22. Bill passed Senate June 30.
Ergonomics provision dropped in conference, December 15 (H.Rept. 106-1033).
H.R. 5037 (Hall of Texas and Tauzin)
Codifies an “employee misconduct” defense for employers who are cited for a violation
of an OSHA standard. Also allows “alternative methods” of protecting employee safety if
they are equally effective as the standard. Introduced July 27, 2000, referred to Committee
on Education and the Workforce, Subcommittee on Workforce Protections.
H.R. 5038 (Hall of Texas and Tauzin)
Specifies that an employer on a multi-employer work site is not responsible for violations
caused by other employers (with exceptions). Introduced July 27, 2000, referred to
Committee on Education and the Workforce, Subcommittee on Workforce Protections.
S. 650 (Wellstone and Kennedy)
Extends full OSH Act coverage to Federal employees. Introduced March 17, 1999;
referred to Committee on Health, Education, Labor and Pensions.
S. 651 (Wellstone and Kennedy)
Increase criminal penalties under the OSH Act for willful violations that result in
fatalities. Introduced March 17, 1999; referred to Committee on Health, Education, Labor
and Pensions.
S. 652 (Wellstone and Kennedy)
Strengthens whistleblower protection provisions of OSH Act. Introduced March 17,
1999; referred to Committee on Health, Education, Labor and Pensions.
S. 653 (Wellstone and Kennedy)
Combines provisions of S. 650, S. 651, and S. 652. Introduced March 17, 1999;
referred to Committee on Health, Education, Labor and Pensions.
S. 746 (Levin, Thompson et al.)
Regulatory Improvement Act. Requires cost-benefit analyses and risk assessments for
major new regulations by safety-related agencies, such studies subject to independent peer
reviews and, potentially, judicial review. Introduced March 25, 1999; referred to Committee
on Governmental Affairs. Hearing held April 21, 1999. Reported, amended, July 20, 1999
(S.Rept. 106-110).
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S. 1114 (Enzi)
Requires that new standards of the Mine Safety and Health Administration be submitted
for review by panels representing small mine owners. Introduced May 25, 1999; referred to
Committee on Health, Education, Labor and Pensions. Reported January 7, 2000 (S.Rept.
106-227).
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
U.S. Congress. House. Committee on Education and the Workforce. Subcommittee on
Oversight and Investigations. OSHA Policy Concerning Employees Working at Home.
Hearing, January 28, 2000. Serial No. 106-81. Washington, U.S. Govt. Print. Off.,
2000. 154 p.
— — Under the Radar Screen Rulemaking at the U.S. Department of Labor: OSHA’s
Employee Work-at-Home Policy and Beyond. Hearing, April 5, 2000. Serial No. 106-
101. Washington, U.S. Govt. Print. Off., 2000. 84 p.
U.S. Congress. House. Committee on Education and the Workforce. Subcommittee on
Workforce Protections. The Federal Mine Safety and Health Act of 1977. Hearing,
July 30, 1998. Serial No. 105-137. Washington, U.S. Govt. Print. Off., 1999. 279 p.
— — H.R. 987, H.R. 1438, H.R. 1439, and H.R. 1459. Hearing, April 21, 1999. Serial No.
106-26. Washington, U.S. Govt. Print. Off., 1999. 284 p.
— — H.R. 1434. Hearing, May 13, 1999. Serial No. 106-38. Washington, U.S. Govt.
Print. Off., 1999. 166 p.
----- OSHA’s Recordkeeping Standard: Shareholder Views of the 1996 Proposal. Hearing,
July 20, 2000. Serial No. 106-116. Washington, U.S. Govt. Print. Off., 2000. 101 p.
— — Oversight of the Occupational Safety and Health Administration. Hearing, March 23,
1999. Serial No. 106-13. Washington, U.S. Govt. Print. Off., 1999. 158 p.
U.S. Congress. House. Committee on Small Business. OSHA’s Draft Safety and Health
Program Rule. Hearing, July 22, 1999. Serial No. 106-23. Washington, U.S. Govt.
Print. Off., 1999. 244 p.
U.S. Congress. Senate. Committee on Health, Education, Labor and Pensions. SAFE Act
of 1999. Report, October 28, 1999. S.Rept. 106-202. Washington, U.S. Govt. Print.
Off., 1999. 74 p.
––- Small Mine Advocacy Review Panel Act. Report, January 7, 2000. Report No. 106-227.
Washington, U.S. Govt. Print. Off., 2000. 27 p.
U.S. Congress. Senate. Committee on Health, Education, Labor and Pensions.
Subcommittee on Employment, Safety and Training. Accident Prevention, the Focus
of SAFE. Hearing, April 13, 1999. Hearing No. 106-53. Washington, U.S. Govt. Print.
Off., 1999. 55 p.
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— — Increasing MSHA and Small Mine Cooperation. Hearing, May 26, 1999. Hearing
No. 106-166. Washington, U.S. Govt. Print. Off., 1999. 213 p.
— — The New SAFE Act. Hearing, March 4, 1999. Hearing No. 106-37. Washington,
U.S. Govt. Print. Off., 1999. 135 p.
FOR ADDITIONAL READING
Burton, John F. and James Chelius. Workplace Safety and Health Regulations: Rationale and
Results, in Kaufman, Bruce E., ed. Government Regulation of the Employment
Relationship. Madison, WI: Industrial Relations Research Association, 1997. p. 253-
293.
Conway, Hugh and Jens Svenson. Occupational Injury and Illness Rates, 1992-96: Why They
Fell. Monthly Labor Review, November 1998. p. 36-58.
DiMartino, Vittorio and Nigel Corlett, eds. Work Organization and Ergonomics. Geneva:
International Labour Office, 1998. 211 p.
Job Safety Outlook. Occupational Safety and Health Reporter, January 13, 2000
(supplement). 17 p.
Kniesner, Thomas and John Leeth. Abolishing OSHA. Regulation, The Cato Review of
Business and Government, 1995. Available via World Wide Web at:
[http://www.cato.org/pubs/regulation/reg18v4e.html]. 10 p.
Levine, David I. Reinventing Workplace Regulation. California Management Review,
Spring 1997. p. 98-117.
U.S. National Performance Review. The new OSHA: Reinventing worker safety and health.
(Washington) The White House, May 1995. 12 p. plus appendix.
Viscusi, W. Kip et al. Economics of Regulation and Antitrust, Chapter 23: Regulation of
workplace health and safety. Cambridge: MIT Press, 1995. p. 791-829.
CRS Reports
CRS Report 98-618. Environmental risk analysis: A review of public policy issues, by
Linda-Jo Schierow.
CRS Report 97-724. Ergonomics in the workplace: Is it time for an OSHA standard? by
Edward Rappaport.
CRS Issue Brief for Congress
Received through the CRS Web
OSHA Reform:
“Partnership” with Employers
Updated January 12, 2001
Edward B. Rappaport
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress
CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
General Political Considerations
“Reinventing” OSHA
Legislative Initiatives in General
The SAFE Act
Incremental Bills
Whistleblower Protection
Ballenger Package
Cost-Benefit Principles in Standard Setting
Other Bills
Initiatives by the Clinton Administration
New Standards
Ergonomics
Comprehensive Workplace Safety Programs
LEGISLATION
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
FOR ADDITIONAL READING
CRS Reports
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OSHA Reform: “Partnership” with Employers
SUMMARY
The Occupational Safety and Health
methods all safety-related agencies (not just
Administration has occasioned controversy
OSHA) would use in fashioning their regula-
ever since its inception in 1971, both for being
tions. S. 746 would have codified that cost-
too strict with employers and not being strict
benefit analyses be done for major new regula-
enough. In the last few years most of the
tions (currently required by Executive Order),
OSHA reform bills in the Congress have been
and would have subjected these analyses to
presented as a response to the complaints of
peer review and, potentially, judicial review.
small business. The common theme is to shift
However, the agencies would not be required
the agency away from levying fines and toward
to show quantitatively that benefits of their
cooperatively working with employers to solve
final rules exceed the costs. S. 59/H.R. 1074
problems.
called for an annual review of regulations on
the books, with recommendations, by the
The most prominent of the bills in the
Office of Management and Budget. (S. 746
106th Congress aimed at fundamentally chang
and H.R. 1074 were reported by committee.)
ing safety regulation was the SAFE Act
(Safety Advancement for Employees Act, in
The Clinton Administration stressed
related but not identical versions as H.R.
whistleblower protection as a legislative prior-
1427/S. 385). The centerpiece was a program
ity, arguing that the protections afforded by
under which employers could contract with
the OSH Act in 1971 are not as effective as
private-sector consultants and, if complying
other, more recent, Federal laws. S. 652 and
with their recommendations, be exempt from
H.R. 1851 would have allowed a private right
OSHA civil penalties for the following year.
of action by complainants, whereas currently
(S. 385 was reported by committee on April
only the Labor Department can bring actions
29, 1999.)
on workers’ behalf. Moreover, these bills
would have increased recoveries to include full
There were also a number of bills in the
compensation and punitive damages. (Neither
106th Congress dealing with particular issues.
advanced beyond committee.)
The chairman of the House Subcommittee on
Workforce Protections introduced a package
Meanwhile, the Clinton Administration
that would: allow for a waiver of penalties for
moved forward by regulation on some impor-
some violations by small businesses (H.R.
tant new standards. The new ergonomic
1437), require that risk-benefit analyses be
standard requires all employers to respond to
done on an industry by industry basis (H.R.
reported injuries by developing plans to deal
1436), provide new procedures for whistle-
with a potentially wide range of ergonomic
blower protection suits (H.R. 1439), assure
hazards. Congress almost passed a legislative
confidentiality for employer self-audits (H.R.
rider to prevent the issuance of an ergonomic
1438), and clarify application of the National
standard, but the Administration was able to
Labor Relations Act (H.R. 1434). (None of
complete the rulemaking. Opponents of the
these were reported by the committee.)
measure could still try to overturn it by court
action or by use of the Congressional Review
Several bills would have reformed the
Act.
Congressional Research Service ˜ The Library of Congress
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MOST RECENT DEVELOPMENTS
On November 14, 2000 the Clinton Administration issued its standard on ergonomics,
making moot a provision in the then pending appropriation bill that would have prevented
its issuance. Opponents of the rule have already sued, and may also try to invoke the
Congressional Review Act to block it.
BACKGROUND AND ANALYSIS
The Occupational Safety and Health Administration (OSHA) has operated since its
creation in 1970 under an authorizing statute (“OSH Act,” P.L. 91-596) that was never
directly amended until 1998 (when the U.S. Postal Service was brought under its jurisdiction)
despite many attempts to do so. Its mission is to assure a safe and healthful workplace for
all working Americans within its jurisdiction (about 85% of the nation’s workforce) and it has
operated in recent years with a budget of about $300 million. The agency has occasioned
controversy since its inception, both by acting and failing to act. Up to and through the 103rd
Congress (1994), most legislative initiatives were directed toward strengthening OSHA’s
authority, but with the 104th Congress, significant efforts have been made to constrict its
authority. In the past, when initiatives arose in the Congress to redirect the agency, OSHA
responded by moving sufficiently to preempt new legislative mandates. While resolution of
current controversies is unpredictable, it is noteworthy that OSHA is already in a process of
simplifying its regulations, restructuring its offices, and giving employers new options for
“partnership” with the agency.
The Clinton Administration and congressional leaders seemed to be in basic agreement
that the relationship between OSHA and the businesses it regulates needs redirection. A
political consensus seems to be emerging that there needs to be greater emphasis on
technical assistance to employers rather than enforcement. An approach focused exclusively
on law enforcement is not enough, if only because the agency will never have the resources
to inspect frequently every workplace. Employers should be encouraged and assisted to make
safety an integral part of the way they do business, while traditional enforcement powers are
reserved for those employers who are clearly negligent. But differences arise over a host of
particulars. Current OSHA reform is an area where, in important respects, “the devil is in the
details.”
General Political Considerations
Surveys of small business owners have repeatedly shown that they consider OSHA to
be the most difficult of the federal regulatory agencies to deal with, and the bills discussed
here are largely a response to such sentiment. Big business is not particularly happy with
OSHA either, but their opposition is relatively muted because they have professional staffs
dealing full time with safety and their workers’ compensation is self-insured or experience-
rated (i.e., safety saves them money). Their concern is more that “reasonable” standards be
written so that they know exactly what is expected of them. The other principal political
actor — the trade union movement — generally wants OSHA regulation to be as strict as
possible, but this orientation has not received prominent representation since 1994 by either
congressional or Administration leaders.
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Debate over OSHA has long been polarized. On one side, the “reform” camp portrays
employers as essentially well-meaning and concerned for their employees’ welfare, and paints
OSHA as a bureaucracy most interested in scoring points with “gotcha” citations. In this
world view, OSHA needs to be transformed into a helpful consultant. The opposing, more
traditional view is that employers will cut corners on safety as much as they can, while OSHA
is the “white knight” riding to the rescue of employees. If enforcement powers are never
exercised, few employers will sign up for “voluntary” consultation programs.
These opposing views come most clearly to the fore in the issue of penalties for citations.
Small business representatives maintain that many citations arise because the standards are
so complicated that employers don’t understand them. Thus, it is only fair that they be given
a chance to correct them before being fined. Further, corrective expenditure directly
improves the situation, which fines do not. On the other side, advocates of strict enforcement
believe that many employers will only make the workplace as safe as they have to: If there is
no extra cost in being cited, they just will not correct dangerous situations until an inspector
comes and specifically directs them to do so.
“Reinventing” OSHA
Legislative Initiatives in General
Since the beginning of the 104th Congress a number of measures have been introduced
with the common theme of shifting OSHA’s emphasis away from levying fines and toward
cooperatively working with employers to provide guidance and to solve problems. Sponsors
of these bills maintain that most employers want to make their workplaces safe and lack only
information about how to do so. Although there is wide agreement that OSHA must retain
enforcement powers to deal with those employers who would otherwise disregard safety, bill
sponsors want OSHA to give all businesses a chance and not immediately “treat them as
criminals.” Legislatively, there are two basic tracks: comprehensive reform bills and
narrower, incremental bills.
The SAFE Act
The most prominent of the comprehensive reform bills has been the Safety Advancement
for Employees Act (SAFE Act), S. 385 (Enzi) in the 106th Congress. (A related bill in the
House was H.R. 1427 (Talent)). S. 385 would have made a number of specific changes in
agency functioning. Its centerpiece was a new program under which employers could
contract with private-sector safety consultants and, if gaining from them a certificate of
compliance, be exempt from OSHA civil penalties for the following year. One of the
requirements for compliance would be that the workplace must have a “safety and health
program,” that is, an organized, participatory system for identifying and mitigating the
particular hazards of each workplace. As specified by S. 385, these programs would be
similar to — though differing in key details from — the programs long advocated by OSHA
itself and which it has tried to embody in an administrative rulemaking (see below).
Advocates of the SAFE Act claim that it would improve safety by bringing to bear
professional expertise in a greater number of workplaces than OSHA inspectors could ever
reach. Opponents express concern that there will be temptations to “buy” exemption from
enforcement by dealing with lax or unethical consultants.
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Other provisions of S. 385 included:
! authorization for issuance of a warning in lieu of a citation in cases where an
employer “in good faith acts promptly to abate a violation;”
! authorization for employers to conduct alcohol and substance abuse testing
under specified guidelines;
! a pilot program for expediting voluntary consultations with OSHA for small
businesses, including an opportunity to correct violations without being
fined; and
! codifications (with some changes) of current programs, such as the
Voluntary Protection Program.
S. 385 differed in a number of respects from its predecessor in the 105th Congress, in
response to various comments. Thus, the exemption from penalties was shortened from two
years to one, and the requirement of adopting a workplace safety program was added.
Excluded from the new bill were (a) a provision requiring new regulations to be reviewed by
the National Academy of Sciences, (b) additional requirements for employees filing safety
complaints, and (c) authorization of labor-management safety committees outside the usual
collective bargaining framework. S. 385 was reported by the Senate Committee on Health,
Education, Labor and Pensions on April 29, 1999.
Incremental Bills
Whistleblower Protection. The Clinton Administration identified whistleblower
protection as its highest legislative priority for OSHA at the outset of the 106th Congress,
claiming that the OSH Act of 1971 falls short of such protections in many other more recent
laws. Complaints are a key element in the safety compliance system, as OSHA has only
limited resources for conducting random (“programmed”) inspections. Even though the OSH
Act prohibits employers from retaliating against employees who report safety problems to
OSHA, it has been estimated that perhaps two-thirds of employees filing complaints
subsequently lose their jobs. Some business groups argue, though, that many complaints are
spurious, for example if a union threatens to call for OSHA inspections as a pressure tactic.
Various bills were introduced; H.R. 1439 (Ballenger) was approved by the House
Subcommittee on Workforce Protections on May 19, 1999. It would have extended the
employee’s filing deadline for a claim of retaliation (to 60 days instead of 30) and shorten the
Labor Department’s allowed response time (to 20 days instead of 90). Most importantly, it
would have allowed for private action if the Labor Department does not pursue the case in
a timely manner. These claims would be heard by the Occupational Safety and Health Review
Commission rather than by a federal court, though they could be appealed to the courts.
The Clinton Administration favored a reform approach along the lines of S. 652
(Wellstone and Kennedy) and H.R. 1851 (Owens). These bills, as well, would have allowed
workers to bring their own cases before an administrative law judge, lengthen the time for
workers to file complaints about retaliation (to 180 days), and expedite resolution. Going
beyond the provisions of H.R. 1439, though, they would have explicitly expanded the
remedies available by including punitive damages and compensation for the complainant’s
legal costs. (There is some legal dispute as to whether punitive damages are authorized by
current law.)
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Aside from legislative changes, it has been suggested (by the Labor Department
Inspector General, among others) that OSHA itself could do more to pursue retaliation cases.
Only about 1% to 2% of these cases brought to OSHA are referred to the Labor solicitor for
prosecution; another 12% to 15% result in settlement with some compensation. Arguably,
though, the agency is hamstrung in pushing for stronger settlements because current law is
limited in how much complainants could receive even if they win in court. One action the
agency has begun is to better publicize to workers generally that they do have some
whistleblower protections under current law and practice.
Ballenger Package. As he did in the 105th Congress, the Chairman of the House
Subcommittee on Workforce Protections (Mr. Ballenger) introduced a package of focused
OSHA reform bills. These would have:
! Authorized employers to deal with employees in joint committees and other
collaborative ways on safety-related issues without running afoul of the
National Labor Relations Act (H.R. 1434);
! Required OSHA to state to which industries new standards will apply, and
perform its risk-benefit analyses on an industry-specific basis (H.R. 1436);
! Waived penalties for “non-serious” violations by small businesses when they
promptly abate the violations (H.R. 1437);
! Assured confidentiality, under specified conditions, for employers’ self-audits
of safety (H.R. 1438, also as part of H.R. 1439); and,
! Provided for private right of action (before the Occupational Safety and
Health Review Commission) for workers claiming they were retaliated
against for making safety complaints (second part of H.R. 1439).
Cost-Benefit Principles in Standard Setting. Several bills would provide more
oversight for the regulations of many agencies. (In the case of OSHA, safety regulations are
known as “standards.”) They would require that the agencies report on the costs and benefits
of their regulations, and that these reports be examined by higher authorities (such as the
Office of Management and Budget) and independent peer reviewers. The bills would not
necessarily change any particular regulation, but the explicit attention paid to costs, in
particular, could make some measures politically untenable.
The most prominent of these bills in the 106th Congress was S. 746 (Levin, Thompson
et al.), which was a further revision of S. 981 from the 105th Congress, which bill had been
revised in July 1998 after negotiations with the White House. S. 746 would have required
safety-related agencies to perform cost-benefit analyses on major new rulemakings (as already
required by Executive Order), and submit these analyses to outside peer-review when the
regulation would have an economic impact of more than a $500 million. The analysis could
be challenged in court, but only on the grounds that the agency was arbitrary and capricious.
The analysis would have to lead to a determination as to whether the benefits justify the costs,
but the agency’s final decision on the regulation would not have to follow from that
determination. This is important in the case of OSHA, as the OSH Act, as interpreted by the
courts, requires that standards be as protective as possible regardless of cost, limited only by
what is technically and economically feasible. S. 746 was reported by the Committee on
Governmental Affairs in July, 1999.
Another approach to the disclosure of costs and benefits was embodied in S. 59
(Thompson) and H.R. 1074 (Bliley), the Regulatory Right-to-Know Act. These would have
required the Office of Management and Budget (OMB) to compile annually a detailed report
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on the costs and benefits of all major regulations currently on the books (by all of the
regulatory agencies), and make recommendations for revising inefficient regulations. They
would also have the OMB prescribe guidelines for agencies to follow in doing their cost-
benefit analyses. H.R. 1074 was passed by the House on July 26, 1999.
Outside review panels would have been required by bills applying specially to OSHA and
the Mine Safety and Health Administration (MSHA). H.R. 2639 (Bonilla) would have
required review of new OSHA standards by panels of technical experts. S. 1114 (Enzi)
would have extended to MSHA a procedural step that currently applies to OSHA and the
Environmental Protection Agency. Specifically, S. 1114 would have required that new
standards be reviewed at a relatively early stage by panels representing small mine owners.
It was reported by the Committee on H.E.L.P. in January, 2000.
Other Bills. There were many other OSHA-related bills in the 106th Congress, most of
these dealing with specific hazards, with OSHA’s enforcement of standards (“compliance”),
or with the scope of coverage of OSHA jurisdiction. Only one, the needlestick bill, was
enacted and, indeed, it was the only one to be reported by committee.
The problem of needlesticks and other injuries suffered by health care workers who use
sharp instruments (“sharps”) led to P.L. 106-430 [H.R. 5178 (Ballenger and Owens) / S. 3067
(Jeffords)]. This amends OSHA’s standard on bloodborne pathogens so as to require health
care facilities to explicitly (and with staff input) consider using needleless systems and other
“safer medical devices.” The needlestick issue also was brought into the Labor appropriations
bill when the Senate added provisions (S.Amdt. 3629 and S.Amdt. 3630) declaring a sense
of the Senate and allocating $10 million for an information clearinghouse on safer “sharps.”
However, these provisions were dropped in conference.
As to compliance, various bills would make the regime either more or less stringent.
Tightening was exemplified by S. 651 (Wellstone and Kennedy), which would have allowed
criminal prosecution as a felony (currently classified as a misdemeanor) of cases where willful
violations of the OSH Act lead to fatalities. Easing of the compliance regime would have
been achieved by H.R. 391 (McIntosh) (elimination of penalties for most first-time violations
of paperwork rules of most agencies) and H.R. 1987 (Goodling) / S. 1158 (Hutchinson of
Arkansas) (providing recovery of attorneys’ costs when accused employers prevail on the
issues).
OSHA’s jurisdiction would have been expanded to state and local government workers
by H.R. 776 (Andrews), to U.S. Department of Energy Facilities by H.R. 3907, and to federal
workers generally by S. 650 (Wellstone and Kennedy). Several bills were introduced in
January 2000 in response to an OSHA advisory about the coverage of “telecommuters.” The
agency then revoked its opinion letter and launched public consultations on the proper
treatment of potential hazards of home office work. On February 25 it was announced that
home offices would be exempted from random inspections, and that employers would not be
expected to inspect their employees’ homes. OSHA did reserve the right to follow up on
referrals indicating dangerous conditions.
Initiatives by the Clinton Administration
The Clinton Administration included several projects for OSHA in its “reinventing
government” initiative. These include simplifying the language of safety standards; providing
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on-line, interactive guides to the more complex standards; restructuring area offices; and
fashioning a “construction directorate” to deal specifically with the unique features of that
important sector. Generally speaking, these projects successfully achieved their limited
objectives.
A more ambitious effort, the Cooperative Compliance Program (CCP), had to be pared
back significantly after being challenged in court. Under CCP, firms with the worst records
of injuries and violations were to be given special attention. They would have the choice of
entering the program, getting technical assistance and a chance to improve their performance,
or not entering, which could mean a heightened degree of inspections and enforcement. But
after an adverse court decision (Chamber of Commerce v. OSHA, D.C. Circuit, No. 98-1036,
9 April 1999), OSHA went forward with a plan embodying only part of CCP, namely, the
targeting of inspections according to firm-specific accident rates.
New Standards
Ergonomics. Improper ergonomic design of jobs is one of the leading causes of work-
related illness, accounting for perhaps a third of employers’ costs under workers’
compensation. Due to the wide variety of circumstances, however, any comprehensive
standard would necessarily be complex and costly, while scientific understanding of the
problem is not yet complete. Nevertheless, proponents believe that it would be worth the
effort, preventing extensive pain, suffering, medical expense and lost productivity.
Congressional debate has been framed in terms of how much is known or not known.
Opponents of immediate rulemaking emphasize the gaps in knowledge and argue for further
study; OSHA and other proponents of a rule say that the problem is urgent and that enough
is known to begin bringing it under control.
On November 14, 2000, the Occupational Safety and Health Administration (OSHA)
issued its ergonomics standard. It requires employers to set up control programs for any job
categories where “work-related musculoskeletal disorders” are reported. These programs
include hazard identification and control, employee participation, medical management, and
training. (However, if a “Quick Fix” option resolves the reported problems within 90 days,
the second level would not be required.) “Medical management” means, among other things,
that convalescing employees could be excused from work (or regular work assignments) with
up to normal pay for up to 90 days.
Legislative riders to the Labor Department appropriations bills have been enacted
repeatedly since 1995 to prevent OSHA from issuing a final standard. Opponents of OSHA
action alleged that the agency was trying to rush the standard through with inadequate public
input, deliberation, or scientific basis. In particular, they believe that OSHA should have
waited to take into account a review of the literature by the National Academy of Sciences,
which is being conducted pursuant to a Congressional mandate. In June 2000 both chambers
added an amendment to the Labor Department appropriations bill (H.R. 4577) to prevent
issuance of a final rule at least through FY2001. This became one of the most hotly contested
issues in concluding a conference committee report and reaching agreement with the President
on the appropriation bill. Before final agreement was reached, however, OSHA issued the
final rule and rendered moot the question of whether it would be allowed to do so. However,
active opposition continues. Suits have been brought by both business and labor groups, and
Congressional opponents may seek to invoke the Congressional Review Act (5 U.S.C.,
Sections 801-808) to overturn the rule.
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Comprehensive Workplace Safety Programs. For several years OSHA has given high
priority to a “workplace safety and health programs” rule, but was unable to promulgate it
in final form during the Clinton administration. What the rule would do is require virtually
all employers to examine the hazards in their particular worksites and devise a formal plan to
address those hazards. A keynote of such programs, as formulated by OSHA, is the full
participation of employee representatives throughout the process.
Draft language was released in November, 1998 but, in light of the court decision on the
Cooperative Compliance Program, it appears that a workplace programs rule would be
considered a “standard” that imposes new substantive obligations on employers. Hence, it
could only be issued after a formal notice, hearing and comment process, and OSHA has
deferred action indefinitely.
OSHA maintains that workplace programs are very effective at reducing risks, to the
benefit of employers (through reduced worker compensation costs) as well as employees.
Moreover, workplace programs allow tailoring to the particular circumstances of the business,
rather than relying exclusively on the relative inflexibility of “one size fits all” standards.
Consequently, many businesses, both unionized and non-unionized, have already implemented
workplace safety programs voluntarily.
Nevertheless, the most prominent business associations vigorously oppose adoption of
a programs rule. Their objections are that it is costly (especially for small business), it
“sneaks” into practice a number of safety standards that OSHA could not promulgate in the
proper manner, and it may upset the balance of rights and responsibilities established by
federal labor law. They agree that well-structured programs can save employers money, but
note that they are being adopted voluntarily to the extent that this is so. A rule would reduce
flexibility to the extent that it is specific, but open employers to capricious enforcement if it
is made too flexible.
LEGISLATION
P.L. 106-430
[H.R. 5178 (Ballenger and Owens)/S. 3067 (Jeffords)]
Needlestick Safety and Prevention Act. Revises OSHA standard on bloodborne
pathogens by requiring health care facilities to explicitly consider and adopt, in consultation
with staff, the appropriate use of safer medical devices to prevent injuries from sharp
instruments. Requires employers to maintain a “sharps” injury log. H.R. 5178 introduced
September 14, 2000, referred to Committee on Education and the Workforce, Subcommittee
on Workforce Protections. Approved by Subcommittee September 19. Called up to House
floor and passed under suspension, October 3. Taken up and passed by Senate, October 26.
Signed by President November 6.
H.R. 987 (Blunt)/S. 1070 (Bond)
Prevents OSHA from promulgating a standard on ergonomics before the National
Academy of Sciences completes a review of the scientific literature. H.R. 987 introduced
March 4, 1999, referred to Committee on Education and the Workforce, Subcommittee on
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Workforce Protections. Approved by subcommittee May 19, approved by full committee
June 24. Passed House by vote of 217-209, August 3. S. 1070 introduced May 18, 1999;
referred to Committee on Health, Education, Labor and Pensions.
H.R. 1074 (Bliley)/S. 59 (Thompson)
Regulatory Right to Know Act. Bills not identical, but both would generally: Require
annual statement by the Office of Management and Budget of costs and benefits of existing
regulatory programs, and recommendations regarding duplications and inconsistencies.
Require agencies to follow uniform guidelines for measuring costs and benefits of proposed
regulations. H.R. 1074 introduced March 11, 1999, referred to Committee on Government
Reform, Subcommittee on National Economic Growth. Subcommittee reported measure in
the nature of a substitute April 20. Full committee reported, amended, June 7 (H.Rept. 106-
168). Passed House, amended, by vote of 254-157, July 26. S. 59 introduced January 1999;
referred to Committee on Governmental Affairs. Hearing held April 22. (Senate Hrg. 106-
180).
H.R. 1192 (Hefley)
Repeals enforcement provisions of the OSH Act, provides for technical assistance for
small businesses. Clarifies application of National Labor Relations Act. Introduced March
18, 1999; referred to Committee on Education and the Workforce, Subcommittee on
Workforce Protections.
H.R. 1427 (Talent)/S. 385 (Enzi)
Safety Advancement for Employees Act (SAFE Act). Allows employers to consult with
private safety consultants and gain exemption from OSHA civil penalties, for a year at a time.
Authorizes warnings in lieu of citations in some cases. Allows employers to conduct alcohol
and substance abuse testing under certain guidelines. Codifies and expands current programs,
such as Voluntary Protection. H.R. 1427 introduced April 15, 1999; referred to Committee
on Education and the Workforce, Subcommittee on Workforce Protections. S. 385
introduced February 6, 1999; referred to Committee on HELP, Subcommittee on
Employment, Safety and Training. Reported, amended, by full committee October 28
(S.Rept. 106-202).
H.R. 1434 (Ballenger)
Authorizes employers to deal with employees in any capacity on safety and health issues,
notwithstanding National Labor Relations Act. Introduced April 15, 1999; referred to
Committee on Education and the Workforce, Subcommittee on Workforce Protections.
Hearing held May 13.
H.R. 1436 (Ballenger)
Requires that cost-benefit analyses be done on proposed regulations on an industry-
specific basis. Introduced April 15, 1999; referred to Committee on Education and the
Workforce, Subcommittee on Workforce Protections.
H.R. 1437 (Ballenger)
Waives penalties for non-serious violations by small businesses if violations are promptly
abated. Introduced April 15, 1999; referred to Committee on Education and the Workforce,
Subcommittee on Workforce Protections.
H.R. 1438 (Ballenger)
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Prevents information from employer self-audits from being used in enforcement actions
except under certain conditions. (Substance of this bill also found in H.R. 1439.) Introduced
April 15, 1999; referred to Committee on Education and the Workforce, Subcommittee on
Workforce Protections. Hearing held April 21.
H.R. 1439 (Ballenger)
Modifies whistleblower protection provisions of OSH Act. Provides for an
administrative right of action by the claimant. Also includes audit confidentiality provisions
of H.R. 1438. Introduced April 15, 1999; referred to Committee on Education and the
Workforce, Subcommittee on Workforce Protections. Approved by subcommittee May 19,
1999.
H.R. 1851 (Owens)
Strengthens whistleblower protection provisions of OSH Act. Introduced May 18,
1999; referred to Committee on Education and the Workforce.
H.R. 1987 (Goodling)/S. 1158 (Hutchinson of Ark.)
Provides recovery of attorney’s fees by employers or unions who prevail in cases
brought by OSHA or the National Labor Relations Board. H.R. 1987 introduced May 27,
1999; referred to Committee on Education and the Workforce. Reported, amended, October
14 (H.Rept. 106-385). S. 1158 introduced May 27, 1999; referred to Committee on Health,
Education, Labor and Pensions, Subcommittee on Employment, Safety and Training. Hearing
held July 29.
H.R. 2639 (Bonilla)
Requires “broadly representative,” independent panels to review the scientific and
economic data supporting new OSHA standards. Introduced July 29, 1999; referred to
Committee on Education and the Workforce, Subcommittee on Workforce Protections.
H.R. 3518 (Davis of Va.)
Makes OSH Act inapplicable to employment performed in an employee’s residence with
use of electronic devices. Introduced January 24, 2000; referred to Committee on Education
and the Workforce, Subcommittee on Workforce Protections.
H.R. 3530 (Shaw)
Makes OSH Act inapplicable to employment performed in an employee’s residence.
Introduced January 24, 2000; referred to Committee on Education and the Workforce,
Subcommittee on Workforce Protections.
H.R. 3907 (Bliley)
Makes Department of Energy Facilities subject to occupational safety regulation by the
Nuclear Regulatory Commission (for radiological risks) and by OSHA (all other occupational
safety risks). Introduced March 14, 2000; referred to Committees on Commerce, Science,
Armed Services, and Education and the Workforce. Hearing held by Commerce
Subcommittee on Energy and Power, March 22.
H.R. 4098 (Hoekstra)
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Makes OSH Act inapplicable to office employment performed in an employee’s
residence. Requires OSHA to conduct a rulemaking to define home office employment and
to specify application of OSHA standards to other types of home work. Introduced March
28, 2000; referred to Committee on Education and the Workforce.
H.R. 4577 (Porter)
Labor, health and education appropriations bill. Section 103 of House version, as
reported by committee, prohibits use of funds to issue a standard on ergonomic protection.
H.Amdt. 760 (Traficant) would strike that provision. Amendment rejected June 8, 2000 on
vote of 203-220. Bill passed House June 14. Senate bill as reported by committee did not
have an ergonomics restriction. S.Amdt. 3593 (Enzi) would bar issuance of standard during
FY2001. Amendment adopted by vote of 57-41 on June 22. Bill passed Senate June 30.
Ergonomics provision dropped in conference, December 15 (H.Rept. 106-1033).
H.R. 5037 (Hall of Texas and Tauzin)
Codifies an “employee misconduct” defense for employers who are cited for a violation
of an OSHA standard. Also allows “alternative methods” of protecting employee safety if
they are equally effective as the standard. Introduced July 27, 2000, referred to Committee
on Education and the Workforce, Subcommittee on Workforce Protections.
H.R. 5038 (Hall of Texas and Tauzin)
Specifies that an employer on a multi-employer work site is not responsible for violations
caused by other employers (with exceptions). Introduced July 27, 2000, referred to
Committee on Education and the Workforce, Subcommittee on Workforce Protections.
S. 650 (Wellstone and Kennedy)
Extends full OSH Act coverage to Federal employees. Introduced March 17, 1999;
referred to Committee on Health, Education, Labor and Pensions.
S. 651 (Wellstone and Kennedy)
Increase criminal penalties under the OSH Act for willful violations that result in
fatalities. Introduced March 17, 1999; referred to Committee on Health, Education, Labor
and Pensions.
S. 652 (Wellstone and Kennedy)
Strengthens whistleblower protection provisions of OSH Act. Introduced March 17,
1999; referred to Committee on Health, Education, Labor and Pensions.
S. 653 (Wellstone and Kennedy)
Combines provisions of S. 650, S. 651, and S. 652. Introduced March 17, 1999;
referred to Committee on Health, Education, Labor and Pensions.
S. 746 (Levin, Thompson et al.)
Regulatory Improvement Act. Requires cost-benefit analyses and risk assessments for
major new regulations by safety-related agencies, such studies subject to independent peer
reviews and, potentially, judicial review. Introduced March 25, 1999; referred to Committee
on Governmental Affairs. Hearing held April 21, 1999. Reported, amended, July 20, 1999
(S.Rept. 106-110).
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S. 1114 (Enzi)
Requires that new standards of the Mine Safety and Health Administration be submitted
for review by panels representing small mine owners. Introduced May 25, 1999; referred to
Committee on Health, Education, Labor and Pensions. Reported January 7, 2000 (S.Rept.
106-227).
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
U.S. Congress. House. Committee on Education and the Workforce. Subcommittee on
Oversight and Investigations. OSHA Policy Concerning Employees Working at Home.
Hearing, January 28, 2000. Serial No. 106-81. Washington, U.S. Govt. Print. Off.,
2000. 154 p.
— — Under the Radar Screen Rulemaking at the U.S. Department of Labor: OSHA’s
Employee Work-at-Home Policy and Beyond. Hearing, April 5, 2000. Serial No. 106-
101. Washington, U.S. Govt. Print. Off., 2000. 84 p.
U.S. Congress. House. Committee on Education and the Workforce. Subcommittee on
Workforce Protections. The Federal Mine Safety and Health Act of 1977. Hearing,
July 30, 1998. Serial No. 105-137. Washington, U.S. Govt. Print. Off., 1999. 279 p.
— — H.R. 987, H.R. 1438, H.R. 1439, and H.R. 1459. Hearing, April 21, 1999. Serial No.
106-26. Washington, U.S. Govt. Print. Off., 1999. 284 p.
— — H.R. 1434. Hearing, May 13, 1999. Serial No. 106-38. Washington, U.S. Govt.
Print. Off., 1999. 166 p.
----- OSHA’s Recordkeeping Standard: Shareholder Views of the 1996 Proposal. Hearing,
July 20, 2000. Serial No. 106-116. Washington, U.S. Govt. Print. Off., 2000. 101 p.
— — Oversight of the Occupational Safety and Health Administration. Hearing, March 23,
1999. Serial No. 106-13. Washington, U.S. Govt. Print. Off., 1999. 158 p.
U.S. Congress. House. Committee on Small Business. OSHA’s Draft Safety and Health
Program Rule. Hearing, July 22, 1999. Serial No. 106-23. Washington, U.S. Govt.
Print. Off., 1999. 244 p.
U.S. Congress. Senate. Committee on Health, Education, Labor and Pensions. SAFE Act
of 1999. Report, October 28, 1999. S.Rept. 106-202. Washington, U.S. Govt. Print.
Off., 1999. 74 p.
––- Small Mine Advocacy Review Panel Act. Report, January 7, 2000. Report No. 106-227.
Washington, U.S. Govt. Print. Off., 2000. 27 p.
U.S. Congress. Senate. Committee on Health, Education, Labor and Pensions.
Subcommittee on Employment, Safety and Training. Accident Prevention, the Focus
of SAFE. Hearing, April 13, 1999. Hearing No. 106-53. Washington, U.S. Govt. Print.
Off., 1999. 55 p.
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— — Increasing MSHA and Small Mine Cooperation. Hearing, May 26, 1999. Hearing
No. 106-166. Washington, U.S. Govt. Print. Off., 1999. 213 p.
— — The New SAFE Act. Hearing, March 4, 1999. Hearing No. 106-37. Washington,
U.S. Govt. Print. Off., 1999. 135 p.
FOR ADDITIONAL READING
Burton, John F. and James Chelius. Workplace Safety and Health Regulations: Rationale and
Results, in Kaufman, Bruce E., ed. Government Regulation of the Employment
Relationship. Madison, WI: Industrial Relations Research Association, 1997. p. 253-
293.
Conway, Hugh and Jens Svenson. Occupational Injury and Illness Rates, 1992-96: Why They
Fell. Monthly Labor Review, November 1998. p. 36-58.
DiMartino, Vittorio and Nigel Corlett, eds. Work Organization and Ergonomics. Geneva:
International Labour Office, 1998. 211 p.
Job Safety Outlook. Occupational Safety and Health Reporter, January 13, 2000
(supplement). 17 p.
Kniesner, Thomas and John Leeth. Abolishing OSHA. Regulation, The Cato Review of
Business and Government, 1995. Available via World Wide Web at:
[http://www.cato.org/pubs/regulation/reg18v4e.html]. 10 p.
Levine, David I. Reinventing Workplace Regulation. California Management Review,
Spring 1997. p. 98-117.
U.S. National Performance Review. The new OSHA: Reinventing worker safety and health.
(Washington) The White House, May 1995. 12 p. plus appendix.
Viscusi, W. Kip et al. Economics of Regulation and Antitrust, Chapter 23: Regulation of
workplace health and safety. Cambridge: MIT Press, 1995. p. 791-829.
CRS Reports
CRS Report 98-618. Environmental risk analysis: A review of public policy issues, by
Linda-Jo Schierow.
CRS Report 97-724. Ergonomics in the workplace: Is it time for an OSHA standard? by
Edward Rappaport.