OSHA Hearing: OSHA has Great Tools; Please Don’t Use Them. Hearing Report Part 3

The messages to OSHA from the Chamber of Commerce at this week’s House hearing were clear:

1. Don’t (miss)use the General Duty Clause as a substitute for issuing OSHA standards.
2. Don’t issue any OSHA standards.

The General Duty Clause: Great Idea, As Long As You Don’t Actually Use It

One of the mantras that you hear over and over again from the US Chamber of Commerce and OSHA industry attorneys, in the words of the Chamber’s witness, Eric Hobbes is that “OSHA expanded its use of the General Duty Clause (GDC) as a substitute for rulemaking” in the words of Eric Hobbes, who represented the US Chamber of Commerce.

I always find the industry’s opposition to use of the General Duty Clause a mixture of amusing, wrong, disingenuous and dishonest.

In their wisdom, the founding parents of the Occupational Safety and Health Act realized that the standard-setting process would never be able to address all workplace hazards and intended for the agency to use the GDC in cases where there was a hazard, but no standard. (This was far before the standard-setting process had deteriorated into the lengthy and burdensome process it is today.)

The General Duty Clause is therefore used to address those hazards for which there is no OSHA standard. The language of the GDC appears in Paragraph 5(a)(1) of the Occupational Safety and Health Act which requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”   

To ensure that the agency didn’t abuse the GDC, the law does not make it easy for OSHA to use it. Before OSHA can cite an employer using the GDC, the agency has to prove that there’s a hazard that has the potential to cause serious injury, that the hazard is recognized by the employer or the industry, and that there is a feasible way you can fix the problem.

So far, so good. Unless, according to the Chamber, the GDC is used to prevent workers from getting hurt from actual workplace hazards. Hobbes warned that OSHA “must employ it judiciously.” I can’t disagree with that.  Hobbes complains that OSHA has abused the General Duty Clause by using it injudiciously to cite ergonomics and workplace violence hazards.

What is the truth? Has OSHA overused the General Duty Clause to cite employers for exposing employers to workplace violence or ergonomics hazards? The long answer is “No.”

In 2017, OSHA issued a total of six GDC citations for workplace violence and a total of one citation for ergonomic hazards. And OSHA went crazy with GDC citations for heat exposure with 11 citations.  Adding all of those together, you come to a grand total of 18 — out of over 30,000 inspections conducted by OSHA last year.  (These are not all of the GDC citations that OSHA issued, but they cover those topics that seem most objectionable to the Chamber.

I am somewhat amused by the argument that you shouldn’t use something for the purpose it was intended.

But while I am somewhat amused by the argument that you shouldn’t use a legitmate enforcement tool for the purpose it was intended, I find it disingenuous for Hobbes to argue that OSHA isn’t employing the General Duty clause “judiciously where hazards are truly identifiable and known by the regulated communities, and remedies are available and feasible.” (emphasis added)

There are few  unregulated hazards existing in the workplace today that are more “identifiable” or more “known by the regulated communities” than workplace violence and ergonomics.

We move from amusing and disingenuous to dishonest when Hobbes accuses OSHA of using the General Duty Clause as a “substitute for rulemaking” and complains that the agency has used the GDC “to develop an enforcement strategy targeting workplace violence and another targeting ergonomics, where the Agency has promulgated a standard for neither problem.” (emphasis added)

What’s wrong with this statement? First, although the Chamber seems to be criticizing OSHA for not issuing more standards, the fact is that the Chamber has never in its existence seen an OSHA standard that it found acceptable.  Even Scott Mugno, Trump’s nominee for Assistant Secretary for OSHA, admitted at his Senate confirmation hearing that he couldn’t name a single rule proposed by OSHA during his career that he or the Chamber supported. Mugno chaired the Chamber’s Labor Policy and OSHA Subcommittee.

The fact is that the Chamber has never in its existence seen an OSHA standard that it found acceptable.

Second, as Hobbes, history buffs and any OSHA expert over the age of 30 knows, OSHA actually did promulgate an ergonomics standard in 2000. But that standard was soon repealed by the Bush administration — largely due to the strong lobbying effort of the Chamber of Commerce.

(Yes, the proverbial story of the kid who kills his parents and then throws himself upon the mercy of the court because he’s an orphan.)

So, in summary, the Chamber’s message is: “Don’t dare use the General Duty Clause when you should be issuing standards. And don’t issue any standards.”

Which leads me to the next theme of the Chamber’s testimony:

OSHA Standards: Great Idea, As Long as You Don’t Actually Issue Any

Hobbes alleged that OSHA rulemaking under Obama was “characterized by weak or non-existent data support; dismissive responses to employer concerns about practical compliance issues; [and] questionable interpretations of statutory authority.”

He also accused OSHA of issuing regulations driven by “ideological views” that were “impractical, if not impossible, to comply with,” and  “openly” dismissing “legitimate concerns raised by the employer community about practical issues, statutory authority questions, and assessments of impact.”

Gary Hill from the National Association of Home Builders makes a similar accusation in his testimony, citing an alleged “proliferation of regulatory initiatives that are technologically or economically infeasible to comply with.”

Let me say this about allegations that standards were ideological, impractical or infeasible or that OSHA ignored legitimate input an concerns of the employer community.

First, I’m almost speechless (almost) listing to Hobbes actually call standards protecting workers against silica or beryllium — which have caused thousands of preventable deaths over the last decade — ideologically driven.. And he may disagree with the extent to which OSHA’s electronic recordkeeping standard will help OSHA target unsafe workplaces or encourage employers to make their workplaces safer, but the evidence is clear and ideology plays no role.

The only place ideology plays a role in OSHA’s rulemaking process is in the Chamber’s undeviating opposition to every OSHA standard ever issued by OSHA.

In fact, I’ll go out on a limb and contend that the only place ideology plays a role in OSHA’s rulemaking process is in the Chamber’s undeviating opposition to every OSHA standard ever issued by OSHA.

Second, the Occupational Safety and Health Act (and related judicial decisions) require OSHA standards to be economically and technologically feasible, and require OSHA to consider — and respond to — every comment made during the extensive hearings or written comment periods. It’s the law.

OSHA goes to great lengths and great expense to ensure that it rulemaking procedures and practice do not violate the law. That’s why the “preambles” to OSHA standards — that part that analyzes the risk posed by the hazard and the feasibility of the standard — are often many hundreds of pages long, while the actual regulatory text — the part that employers must comply with — is just a few pages long.

And if OSHA doesn’t fulfill the legal requirement to ensure that its standards are feasible, or if OSHA doesn’t respond to every comment made during the written comment period or the hearings, the courts will overturn the entire standard or parts of the standard.

What Hobbes and Hill neglected to mention is that the construction industry made those exact arguments about ignoring the record and the infeasibility of the silica standard before the US Court of Appeals last year, and the 3-judge panel unanimously rejected their arguments. In fact, there are very few examples throughout OSHA history of successful challenges of OSHA standards.

One footnote. The court wasn’t totally satisfied with OSHA’s response to comments about the silica standard.  The court decided that the agency had not satisfactorily explained why it rejected labor’s request during the comment period to add Medical Removal Protection (MRP) to the standard. (MRP requires employers to remove workers from exposure to a hazardous substance without losing pay or benefits.) OSHA must now go back and include MRP or explain why it was excluded. Hardly the outcome the Chamber wanted.

Conclusion

The Chamber can’t have it both ways: They can’t complain on one hand that OSHA inappropriately uses the General Duty Clause to replace the standard-setting process, and then turn around and oppose every OSHA standard that’s proposed (and lobby Congress to repeal those that slip through.)

At least they can’t if they want anyone to believe that they really want a more effective OSHA.