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March 29, 1999 01:00 AM

PROPOSAL WOULD EASE OSHA COMPLIANCE

Miles Moore
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    WASHINGTON—The Safety Advancement for Employees Act will increase workplace safety while giving employers a necessary break from punitive, unfair penalties from government inspectors. Or else it will put U.S. workers in danger by hamstringing the efforts of the Occupational Safety and Health Administration to enforce health and safety regulations.

    This was the stark contrast, with no middle ground, between the opinions presented in testimony on the SAFE Act at a March 4 hearing of the new Senate Health and Education Subcommittee on Employment, Safety and Training.

    The SAFE Act—brainchild of Subcommittee Chairman Michael Enzi, R-Wyo.—would allow employers to hire OSHA-certified, third-party consultants to help them bring their workplaces into full compliance with federal health and safety requirements.

    These consultants would issue certificates of compliance upon completion of the work.

    OSHA would retain the right to inspect employers who hold compliance certificates and order corrections of safety violations. But it could not issue citations and assess fines for one year after an employer had hired a consultant and received a certificate.

    ``Even the Department of Labor (OSHA's parent agency) estimates that 95 percent of employers are striving to create safe workplaces,'' Mr. Enzi said in his opening statement at the hearing. ``Nevertheless, America's employers are routinely left to their own devices to comply with thousands of pages of regulations without agency assistance and face steep fines for non-compliance despite their good-faith efforts.''

    OSHA's draft proposal requiring all employers to create safety and health programs serves only to increase the fears of business, particularly small business, Mr. Enzi said.

    ``The rule is not only mandatory but it is also a `performance-based' rule, the elements of which are almost completely subjective in nature,'' he said. ``OSHA is answering these concerns by promising that their inspectors will be fair in their application of the rule and flexible in their interpretations. That does not satisfy employers who have safety and health programs in place, or are working to develop such programs.''

    Associations such as the National Association of Manufacturers and the National Federation of Independent Business expressed unqualified support for the SAFE Act.

    Robert J. Cornell, who testified on behalf of the NAM, said the small petroleum jobbership for which he serves as director of dealer operations and environmental regulations established a safety committee a few years ago.

    ``The safety committee's original and primary goal was to follow the guidelines established by OSHA,'' Mr. Cornell said. ``We found, however, that the language was not reader-friendly and was, in fact, impossible for a layperson to understand.''

    Hiring a third-party consultant was the complete answer to the company's problems, Mr. Cornell said. ``The total cost of this very professional and extensive audit...was $3,300,'' he said. ``Fines associated with violations would have been many times that amount.''

    But OSHA Administrator Charles N. Jeffress, despite praising Mr. Enzi for his efforts, said he opposed the SAFE Act as written.

    The agency already has two programs—the Safety and Health Achievement Recognition Program (SHARP) and the Voluntary Protection Program—to promote OSHA-employer partnerships in safety and health programs, Mr. Jeffress said. It has consultants in all 50 states, whom small businesses may use to achieve compliance, and the agency reduces penalties for violations to all small businesses that use one of these consultants.

    Although the SAFE Act incorporates many features of the SHARP program, Mr. Jeffress noted, OSHA has grave concerns about the third-party consultation provision.

    ``The third-party consultation provision creates a powerful incentive for consultants to please employers in order to create and maintain business,'' he said.

    OSHA also fears the consequences of the one-year moratorium on penalties, Mr. Jeffress said.

    ``If employers, acting in good faith, engage qualified consultants and correct all of the violations the consultants find, they should have no reason to be concerned about penalties and fines,'' he said. ``A penalty waiver will be an incentive only to an employer who does not intend to put an effective safety program in place and who does not intend to correct all violations.''

    Joining Mr. Jeffress in opposition was Margaret Seminario, director of occupational safety and health for the AFL-CIO. Ms. Seminario cited the Feb. 1 explosion at the Ford Motor Co. Rouge Powerhouse in Detroit, which killed six workers and injured many more.

    ``Ford Motor Co. has one of the best safety and health programs in the country,'' she said. ``Their safety and health managers...are among the finest, most competent people in this line of work.

    ``Yet still, six workers died as a result of an explosion at the Rouge facility,'' she said. ``Virtually everyone would agree that if violations are found, strong enforcement action should be taken. But (the SAFE Act) could easily bar such necessary and appropriate measures in cases like the Ford tragedy.''

    Sen. Paul Wellstone, D-Minn., ranking Democrat on the subcommittee, promised to introduce a counterproposal to the SAFE Act.

    Among other things, Mr. Wellstone said, his bill would strengthen protections to workplace whistleblowers and make any willful safety violation resulting in death a felony.

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