The federal workplace safety sheriff—better known as the Occupational Safety and Health Administration (OSHA)—wants to add some bullets to its bandoleer. A proposal to allow the OSHA enforcement division to get its hands on confidential reports written by consultants for companies who voluntarily request workplace audits has set off fireworks in the ranks of OSHA consultants.
But those explosions are cherry bombs compared to mega-ton rhetorical bombs industry is lobbing at OSHA in the wake of its Nov. 22 controversial proposed rule on ergonomics.
This proposed “ergonomics” rule would affect companies of all sizes, while the consultation proposal only affects companies with fewer than 250 workers at a facility, a universe that includes most of the companies in the U.S. anyway. In August, the House passed a bill telling OSHA to “hold off” on any ergonomics proposal until January 2001. But Sen. Kit Bond (R-MO), chairman of the Senate Small Business Committee, was unable to convince his colleagues to pass the “ergo-slowdown” bill.
He will try again early in 2000. In 1999, he had 49 co-sponsors for his bill. All were Republicans. The lack of any Democratic support will hurt his effort, since President Clinton is likely to veto any “ergo-slowdown” bill. It is too early to tell whether Democrats may now join Bond. This support could be based on a feeling that the OSHA proposal, which came, unbelievably, with a 1ęŻ -page preamble, is over the top. Craig Orfield, Bond’s spokesman, calls the proposal “the mother of all regulations.”
Small business concerns
Bond says OSHA failed to modify the proposed rule to reflect legitimate concerns small businesses expressed when an earlier draft was released. “I am very concerned that many people will lose their jobs and small businesses will be forced to close if this rule is finalized,” adds Bond.
A key problem with the proposed rule is that it would require any company to establish a full-scale ergonomics program if one employee complained about a musculoskeletal disorder (MSD). It is unclear how an employer would determine whether a back injury, for example, was caused by a lifting incident at the employee’s home or in the workplace.
Moreover, complaints by one employee that a packaging assembly line was too high or too low off the floor, and therefore causing him or her to strain his back, might force the company to dismantle the line and rebuild it at a more ergonomically correct height. This, of course, is a speculative horror story. But stranger things have happened as a result of OSHA regulations.
John Block, president of Food Distributors Intl.(WHERE?), calls the proposed ergonomics rule “ridiculous and unnecessary.” The FDI has been promoting a study it did showing the proposed rule would cost the food distribution industry $26 billion the first year alone, and $6 billion annually thereafter.
OSHA apparently tried to calm those concerns by including a “Quick-Fix” alternative to setting up a full-scale ergonomics program. If an employer corrected a hazard within 90 days and established that the fix worked, no further action would be necessary. But one Washington lawyer, who represents a major safety group, says, “That quick-fix option strikes me as something of a compliance nightmare.”
Changes to consultation
When the ergonomics proposal came out Nov. 22, the earth shook, at least figurately. The same could not be said for the proposed rule on the consultation program, which many packagers take advantage of. It didn’t even make a splat when it was issued last summer. For example, an official at the Society of the Plastics Industry drew a blank when asked about the proposed OSHA consultation changes. A counterpart at the National Assn. of Manufacturers was also unaware of it.
The OSHA consultation program has been around since 1975. OSHA pays the salaries of state government employees who do audits voluntarily requested by companies with fewer than 250 employees at a particular work site. The audits are free. If the company does everything the consultant asks to get the workplace up to snuff, the company is exempt from an OSHA inspection for one year. The program is independent of the OSHA enforcement division.
The OSHA program has been immensely popular, creating huge backlogs of companies tapping their feet waiting for visits. Jeff Bailey, plant manager for Max Packaging, Attalla, AL, says his company has had three separate visits over the past five years from the Alabama Safe State program, which handles the OSHA audits in the state. Max Packaging has 220 employees and 30 separate packaging lines that wrap plastic utensil and napkin sets, plus dietary kits for hospitals, to name a few things that roll off its lines.
Pam Griffith, the safety director at Max, says the Safe State consultants helped the company fix the machine guards on the packaging line so that when they are removed and then reinstalled improperly, the line will not run.
Because of the popularity of the consultation program, and in part because the program was established by administrative (not congressional fiat), Congress in July of 1998 passed the Occupational Safety and Health Administration Compliance Assistance Authorization Act. The bill gave the program, after 23 years, a statutory raison d’etre. Congress also told OSHA to change some of the ground rules for the program.
Client confidentiality?
As a result, OSHA issued a proposed rule on July 2 that contains some provisions which the state consultants themselves are vehemently opposed to. The most irksome proposal would force the consultants to give OSHA enforcement officials access to the reports they write for clients.
The reports contain information on company safety hazards, particularly where there are violations of OSHA rules, such as for lock-out, tag-out of electrical equipment, for identifying and remediating process hazards and violations of the general duty clause. If and when OSHA finalizes a rule on ergonomics, a company’s adherence to that standard would also be part of the report.
Today, these reports are confidential. The owner of the company is the only person allowed to view the report. But OSHA wants to be able to get those reports for enforcement purposes. The agency gave some vague examples of when it might demand these reports, and added that these instances would be “extremely rare.”
But just the possibility that OSHA would have a legal right to demand the reports has upset numerous groups. “That possibility could really destroy our credibility with our clients,” says Bill Weems, program manager for the privately-operated Safe State program in Alabama. The majority of auditors are affiliated with state agencies. Weems has nine people working in the field; they do about 500 audits a year.
Weems is also the president of OSHCon, the informal association of state consultants who do inspections for OSHA. He explains that companies are going to be considerably less interested in having a consultation if they know that the final reports could land in the hands of an OSHA inspector. In the 23 years it has been operating, Alabama’s Safe State has referred only four companies—out of 14ęŻ who have been audited—to OSHA because the companies refused to correct serious workplace hazards.
Weems cites those statistics to buttress his contention that OSHA’s proposal to allow it to demand reports is unnecessary.
However, Jeff Bailey of Max Packaging says it would not bother him to know that the consultant might turn over his company’s report to OSHA. “If there is something unsafe, we are going to fix it,” he emphasizes. “We are not going to hide anything.”
Other changes
The proposed rule would also require a company to post a synopsis of the consultant’s report in the workplace. Currently, this is not a requirement; the information in the report is considered confidential. Some employers do post the lion’s share of the report voluntarily, however.
Nancy Jakubec, director of cooperative programs at the Virginia Department of Labor and Industry, thinks it is a good idea for companies to let employees know about potential safety problems that turn up as a result of an audit. But she can foresee a situation where a disgruntled employee might send the posted hazards list to the local newspaper or to OSHA in an effort to make trouble for the company.
Generally, employees are privy to the information anyway. Under current rules, employee representatives are supposed to be able to sit in on the opening and closing conferences between the consultant and the employer.
However, adding a specific ergonomics rule to OSHA’s regulatory arsenal would allow consultants to push harder for correction of repetitive-motion hazards. They cite those now, but under the General Duty clause, which is an “iffier” basis for remedial action than a specific rule on ergonomics would be.
Of course, the bigger potential problem is when an OSHA inspector shows up and decides that a company is violating the ergonomics rule. Then civil penalties become an option. Very few companies will want to court that eventuality. So they will do what needs to be done if and when this proposed rule becomes final. About 1.9 million work sites would be affected, according to OSHA, at a cost of $4.2 billion a year.
That OSHA estimate is a tiny fraction of the FDI estimate for the food distribution industry alone. So someone—or both—may be cooking the numbers.
