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
Impropriety of Specific Provisions
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 firstname.lastname@example.org.
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.