Date: Jul 30, 2004

On July 22, 2004, Senator Michael Enzi (R. WY.) introduced his long-anticipated and now controversial OSHA reform bill, which is identified as S. 2719 and titled the "Safety Advancement for Employees Act of 2004" ("SAFE Act"). Despite Senator's Enzi's best intentions, the initial response to S. 2719 indicates that his efforts to formulate a compromise bill have resulted in legislation that is facing substantial opposition from both the business community and organized labor, and is unlikely to be seriously considered until after the next Congress is sworn into office.

Workplace safety is equally a concern of both employers and employees, of both the business community and organized labor. The differences in views are not over whether workplaces should be safe, but as to the appropriate policies and approaches to be followed in achieving a safe workplace. For example, there are differing views on how to assess risk and how to balance the use of different types of OSHA interventions (e.g., citations, warnings in lieu of citations, positive incentives, outreach). This bill reflects a continuation of that debate.

At least one section of S. 2719 reflects a bi-partisan approach (e.g., hazard communication). Some sections of the bill reflect a slight tilt toward the business community approach (e.g., permitting OSHA, in its discretion, to issue warnings instead of citations in some cases; permitting employers to defend against a citation by proving that they, in effect, have implemented alternative protective measures that would qualify for a variance; explicitly authorizing OSHA to use the fax and phone approach for responding to complaints rather than initiating an on-site inspection). However, a preliminary review of the bill suggests that the third party consultation provision that would exempt employers from civil penalties routine inspections is so constrained and potentially burdensome as to be unattractive to the employers who would utilize that program. Furthermore, using a cost-benefit analysis, the partial or complete exemption from routine OSHA inspections offered by participation in the existing, free and seemingly more flexible OSHA consultation program appears more attractive.

Taken as a whole, whatever potential benefits S. 2719 may offer to the business community are likely to be viewed as falling far short of that which would justify supporting legislation that imposes significantly increased criminal penalties on employers. As currently written, the only legal difference between a willful civil violation and a willful criminal violation is the difference in the burden of proof -- a preponderance of the evidence standard in civil cases versus beyond a reasonable doubt standard in criminal cases. The decision as to which way to proceed is left to the sole discretion of the Secretary of Labor and the Department of Justice.

Given the current political environment, the most realistic prognosis would appear to be that the apparently bi-partisan hazard communication provisions of S. 2719 would be separated out and considered either on their own merits or as part of broader legislation addressing chemical safety issues.