Core Provisions: Rep. Miller (D-CA), along with eleven Democratic co-sponsors, introduced legislation on July 30, 2008 that would prohibit the Secretary of Labor from issuing, administering, or enforcing any rule, regulation, or requirement derived from a proposal submitted to the Office of Management and Budget (OMB) entitled “Requirements for DOL Agencies’ Assessment of Occupational Health Risks.”

The draft rule reportedly changes the process Department of Labor (DOL) agencies follow when preparing risk assessments related to health standards governing occupational exposure to toxic substances and hazardous chemicals by challenging OSHA’s current assumptions that there is no threshold carcinogen exposure below which the cancer risk is zero, and that permissible exposure levels should be based on exposure to a toxin over a career lasting 45 years.

The proposed bill comes after Rep. Miller and Sen. Kennedy (D-MA) sought documentation related to the rule’s development after the rule was referenced on the OMB website despite the fact that it was not included in the DOL’s semiannual regulatory agenda. The proposed rule has not yet been published in the Federal Register.

Status:  Rep. Miller’s legislation, the “Prohibiting the Department of Labor’s Secret Rule Act of 2008″ (H.R. 6660) has been referred to the House Committee on Education and Labor.

Over the past few weeks, Democrats in Congress have taken a number of additional steps in their ongoing efforts to pressure OSHA to become more aggressive in its enforcement activities. Some recent data suggests that OSHA is responding to this scrutiny. On April 22, 2008, Sen. Edward Kennedy (D-MA), Chairman of the Senate Health, Education, Labor, and Pensions Committee, and Patty Murray (D-WA), Chairwoman of the Subcommittee on Employment and Workplace Safety, asked the U.S. Government Accountability Office (”GAO”) to investigate OSHA’s efforts to ensure that employers accurately report workplace injuries and illnesses. Because OSHA uses this injury and illness information to target employer worksites for inspections, Senators Kennedy and Murray believe that employers have an incentive to underreport the number of injuries and illnesses occurring at their worksites. Senators Kennedy and Murray asked the GAO to review OSHA’s efforts to monitor employers, including the number and types of recordkeeping audits OSHA has conducted.

On April 23, 2008, the House Subcommittee on Workforce Protections held a hearing on “Improving Workplace Safety:  Strengthening OSHA Enforcement of Multi-Site Employers.” During her opening statement, Subcommittee Chairwoman Lynn Woolsey (D-CA) emphasized the importance of improving OSHA’s ability to hold large employers accountable for corporate-wide safety and health problems. 

Rep. Woolsey and the Subcommittee called the hearing as part of their increased attention on OSHA’s enforcement activities after a workplace fatality involving a Cintas Corporation employee who fell from a conveyor belt into an industrial dryer last year. Days after the employee’s death, the Subcommittee sent a letter to OSHA asking for a nationwide investigation of Cintas facilities. OSHA’s investigation resulted in a $2.7 million penalty against Cintas, the largest safety-related penalty ever levied against a service sector employer. Cintas has been locked in a long-running corporate campaign with UNITE/HERE, which has made workplace safety one of the centerpieces of its regulatory and public relations attacks against the company. 

Earlier this week, on April 29, 2008, the Senate Health, Education, Labor, and Pensions Committee held a hearing on “When a Worker is Killed:  Do OSHA Penalties Enhance Workplace Safety?” The hearing focused on the penalties available to OSHA to enforce its regulations, which is one of the issues addressed in the proposed Protecting America’s Workers Act. The Act aims to increase the penalties for violations, enhance protection for whistleblowers, and improve OSHA’s ability to sanction non-compliant businesses. For more details regarding the Protecting America’s Workers Act, please consult a prior Washington Labor & Employment Wire article.

This recent Congressional pressure on OSHA seems to have precipitated more vigorous enforcement efforts against employers. For example, OSHA cited 88,846 violations in 2007, a 5.88% increase from 2006 (83,913 violations). Even more telling is that 67,176 of these violations were classified as serious violations, a 9.52% increase from 2006 (61,337 violations).  OSHA also made more use of its Enhanced Enforcement Program (EEP) in 2007. Cases designated for EEP are typically subject to more vigorous inspections and more expansive settlement obligations. During the first four years of the program (2003-2007), OSHA identified an average of 524 inspections per year that qualified as EEP cases. In 2007, that number jumped almost 40%, as OSHA designated 719 cases for EEP treatment.

On April 30, the U.S. House of Representatives passed the Combustible Dust Explosion and Fire Prevention Act of 2008, which mandates OSHA to issue a rule regarding combustible industrial dusts. 

The bill was introduced on March 4, 2008 in response to an explosion at the Imperial Sugar refinery in Pent Wentworth, Georgia. It requires OSHA to issue a rule to include combustible dusts as part of OSHA’s current Hazard Communication standard in 29 C.F.R. § 1910.1200(c). If enacted into law, OSHA must issue an interim rule within 90 days of the bill’s enactment and a final rule within 18 months of enactment. 

The Bush Administration strongly opposes the bill because, in its view, the 90-day and 18-month requirements do not allow for a thorough regulatory and economic analysis.  Another Bush Administration objection was addressed by an amendment which expanded the time to comply with the interim rule from 30 days to six months. For further information on the White House opposition, see the Statement of Administration Policy.

Core Provisions: This Act would expand the existing Occupational Safety and Health Act. The Act enhances the penalties for “repeat” and “willful” violations, increasing employer fines from $70,000 to $100,000 and allowing imprisonment of management employees for up to ten years. The Act also prohibits unclassified citations, which may increase the likelihood of collateral state litigation and criminal prosecutions. Furthermore, the Act provides for greater protection for “whistleblowers” by creating new procedural options and remedies for employees who are discriminated against for reporting unsafe conditions or for refusing to perform duties because of a danger of serious injury or impairment to health. For instance, the time to file discrimination charges is extended from 30 to 180 days and employees are permitted to object to government findings and request a hearing. In addition, employees may receive all reasonable costs and expenses, including attorneys’ fees. Finally, the Act requires employers to provide personal protective equipment to employees at no cost.

Status: Sen. Kennedy (D-MA) and Rep. Woolsey (D-CA) introduced S.1244 and H.R.2049, respectively, on April 26, 2007. S.1244 has been referred to the HELP Committee. H.R.2049 has been referred to the Subcommittee of Workforce Protections of the House Committee Education and Labor.