Primary Concerns Raised by OSHA's Safety and Health Program Rule Initiative

Date: Nov 10, 1998


OSHA has described the development of a comprehensive safety and health program rule as "the centerpiece of the Agency's current regulatory plan" and "one of the most important regulatory initiatives ever undertaken by OSHA." According to OSHA, there are many reasons for an employer to voluntarily implement a safety and health management program as part of its overall goal of maximizing the bottom line for both the company and its workers. Many believe effective safety programs minimize "accidents" and the associated harm to workers, workers compensation costs, loss of skilled labor, damage to property, and interruption of business operations; and create an environment of workplace cooperation and good will which should maximize long-term productivity and profitability.

To be effective, a program must have the flexibility to take a broad variety of factors in account, including the nature of the hazards at the worksite, the size and nature of the workforce, the workplace culture and other workplace conditions. Clearly, this degree of flexibility exists where programs are voluntary, and we believe there is fairly widespread support among employers for voluntary safety and health management programs.

In light of the existing incentives for a voluntary safety and health program, one should question the need for a new OSHA rule mandating that employers implement safety and health management programs. Beyond the threshold policy questions, this initiative becomes a critical issue for employers when one objectively examines whether the Agency has the statutory authority to adopt such a rule and when one considers whether the speculative benefits of such a rule justify both the known costs and the enormous potential for expansive and potentially abusive enforcement of the rule. Many safety professionals who advocate and are responsible for developing voluntary safety and health management programs appear inclined to automatically support this OSHA initiative without recognizing the critical distinction between a voluntary program reviewed by a "friendly" auditor (e.g., loss control representative) and a mandatory program subject to the scrutiny and sanctions of the OSHA enforcement process.

Listed below are what we consider some of the major shortcomings of this initiative as described in OSHA's October 27, 1998 Draft Proposed Safety and Health Program Rule currently undergoing review by small business representatives.

Threshold Legal and Policy Issues

    • OSHA has not demonstrated, and we doubt the agency will be able to demonstrate, that the imposition of this comprehensive, one-size-fits-all safety and health program standard on all employers in all industries would be necessary or appropriate for the advancement of workplace safety.

    • OSHA likely does not have the statutory authority under the Occupational Safety and Health Act (OSH Act) to issue the draft proposed safety and health program rule because:

      • It would amend the General Duty Clause through rulemaking rather than legislation; and

      • It would amend every single OSHA standard through a generic rulemaking rather than in accordance with the rulemaking procedures and legal criteria established by the OSH Act.

    • It could be interpreted to convert the OSH Act into an absolute liability statute through the pervasive use of provisions requiring an employer to take actions "as often as necessary" to comply with the OSH Act.(2)

    • Through this improper attempt to amend the General Duty Clause, OSHA would, in effect, be issuing a back-door generic standard addressing:

      • Areas where there is no recognized scientific consensus on the hazard and appropriate protective measures -- ergonomics, workplace violence, and indoor air; and

      • Areas where the risk is not significantly different than that accepted by the public at large -- motor vehicle safety.

    • The requirements of the proposed draft safety and health program rule are written in language which is so vague and ambiguous that they fail to satisfy the Due Process requirements of the Fifth and Fourteenth Amendments to the U. S. Constitution. More specifically, they:

      • Fail to provide employers (as well as employees and DOL enforcement personnel) with adequate notice as to what is required(3); and

      • Fail to place any meaningful limits on the discretion of OSHA compliance personnel to interpret those requirements in whatever way they deem appropriate with the benefit of 20/20 hindsight(4)and the information contained in the employer's internal incident and audit reports (effectively required by draft sections d(4) and d(5)), which OSHA compliance personnel will obtain by request, demand or legal process.
    • If the ambiguous, performance-based rule were to survive the expected legal challenges, it would eventually be converted to a specification rule not through the rulemaking process but through "non-mandatory" supplemental materials, compliance instructions, an avalanche of OSHA interpretation letters, and a patchwork of Review Commission and court decisions.

Impropriety of Specific Provisions

    • The requirements of the draft rule are unreasonably burdensome, the best example of which is the requirement in draft section (f)(2) to train each employee on the nature and control measures for every hazard covered by the OSH Act to which the emloyee is exposed, unless the employer can demonstrate that the employee already has been adequately trained. There is no allowance for an employer to rely on an employee's experience or common sense recognition of an obvious hazard or control measure.

    • The proposal professes to impose minimal paperwork burdens on employers when experience teaches that compliance officers have a pervasive institutional bias not to acknowledge/believe that employers have fulfilled their obligations unless compliance is documented.

    • The proposal fails to recognize and provide an exemption for the many existing and effective safety and health programs which would not satisfy the requirements of the draft standard.

    • The proposal fails to provide a practical, statistical-based, quick-check, mechanism which would allow an employer to demonstrate, or a compliance officer to verify, the existence of an effective safety and health program, without subjecting an employer to the enormous potential for prosecutorial abuse associated with OSHA's enforcement of this standard.

    • The proposal, adopting highly objectionable elements of the Ford-Kennedy OSHA "Reform" bills, would provide the federal government with an unjustified and counterproductive level of authority over the management and operation of virtually every workplace in the United States. It would place government bureaucrats (OSHA) in the forefront of labor-management relations, and arm OSHA and employees with powers having the potential for enormous abuse of employers. Draft section (c)(1)(ii)(B) gives OSHA the authority to cite employers for failure to provide managers, supervisors, and employees with the authority, information, training and resources to carry out their safety and health responsibilities. Under draft section (c)(l)(ii)(A), OSHA would be able to cite employers for failing to "hold [managers, supervisors and employees] accountable for carrying out those [safety and health] responsibilities. The provision in section (c)(2)(iii) which states that "the employer must not discourage employees from making reports . . . of injuries, illnesses, incidents or hazards" could very well be interpreted to completely ban any safety incentive programs tied to the frequency or severity of injuries or illnesses. How much more involved could OSHA get in running your business?

    • The proposal would discourage employers from performing effective, comprehensive self-audits by requiring that the audit reports routinely be made available to OSHA compliance personnel as well as employees and employee representatives who could then forward them to OSHA compliance personnel (or hold out the threat of doing so) in an effort to affect the course of labor-management negotiations.

    • OSHA can be expected to use an employer's alleged failure to comply with this standard as the legal theory for automatically imputing knowledge of any OSHA violation to the employer on the basis that the employer would have known of the violation if it had an adequate safety and health program -- as defined by OSHA in its virtually unfettered discretion.

    • Sooner or later, cases will come along in which OSHA can be expected to assert that an employer's alleged willful failure to comply with this rule resulted in a worker's death and provides the legal basis for a criminal prosecution under Section 17(e) of the OSH Act.

    • Further analysis will no doubt uncover many other concerns. Any comments or suggestions you would like to share with us would be greatly appreciated. Please contact Lawrence P. Halprin at 202-434-4177 or by e-mail at halprin@khlaw.com.


      1. For years, OSHA has stated that the product of this initiative would be an occupational safety and health standard issued under Sections 3(8) and 6(b) of the OSH Act. OSHA's "Working Draft of a Proposed Safety and Health Program Standard" (emphasis added) was issued on November 15, 1996, and subsequently discussed at December 1996 stakeholders' meetings as an upcoming standard. On March 25, 1997, following up on a December 11, 1996 stakeholders' meeting, the American Iron and Steel Institute submitted a letter to OSHA which questioned OSHA's authority to issue such a standard, and challenged the propriety of many of the provisions in the working draft. OSHA subsequently announced that the rule would be issued as a regulation rather than a standard.

      2. The required frequency of training would be "as often as necessary" to ensure adequate training; the required frequency of program evaluation would be "as often as necessary to ensure program effectiveness"; the required frequency of hazard identification and assessment would be "as often as necessary to ensure compliance with the General Duty Clause and OSHA standards." The word "necessary" is unqualified and therefore absolute. This is a totally unrealistic, unjustified and unconscionable requirement for employer perfection.

      3. Senior OSHA personnel previously indicated that the Agency planned to enforce the Safety and Health Program Rule (if and when adopted) in accordance with the Agency's Program Evaluation Profile (PEP), most recently issued to employers who "volunteered" to participate in OSHA's infamous Cooperative Compliance Program. That raises several major concerns. First, that document has not been developed through the rulemaking process. Second, senior agency personnel have given different statements as to what would be an acceptable or passing PEP score. Third, field trials of the PEP by OSHA compliance personnel have demonstrated that the criteria are highly subjective and yield results with unacceptable variation. In other words, the Agency has not been able to establish an acceptable level of accuracy and precision in defining an adequate safety and health program for purposes of penalty adjustments. We believe a significantly higher level of accuracy and precision is required for purposes of establishing an employer's obligation under an enforceable rule.

      4. In the event of any non-compliance, the OSHA compliance officer could simply assert that there was not sufficient training, hazard identification and assessment, holding of personnel accountable, program evaluation, etc.; otherwise, there would not be any non-compliance.