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May 25 — The ongoing dispute over OSHA's new rules covering injury and illness recordkeeping and incentive programs moved to Congress May 25 when a House subcommittee took up the issue.
The hearing ended with Republican and Democrat members both stressing their commitment to protecting workers, but little accord was reached on how the Occupational Safety and Health Administration should pursue that goal.
“OSHA continues to push for more regulations, for regulations' sake,” Rep. Tim Walberg (R-Mich.), chairman of the Subcommittee on Workforce Protections, said at the hearing's close.
Rep. Frederica Wilson (D-Fla.), the subcommittee's senior Democrat, defended OSHA's effort to publicize employer's injury numbers and called for the subcommittee to pass the Protecting America's Workers Act (H.R. 2090), a bill with past versions that repeatedly failed to win congressional approval even when Democrats were the majority party.
Much of the hearing and witness testimony focused on the electronic recordkeeping and incentive program rule (81 Fed. Reg. 29,624) OSHA issued May 12 (46 OSHR 477, 5/19/16).
The rule (RIN:1218-AC49) enables OSHA starting in 2017 to post on its website injury and illness data from 488,000 employers. In addition, starting in August, OSHA inspectors will be able to cite employers if the agency concludes the workplace's safety incentive and drug testing programs discouraged workers from notifying supervisors of job-related medical problems and accidents.
David Sarvadi, an attorney with Keller and Heckman LLP representing an employer group, the Coalition for Workplace Safety, called OSHA “a poster child of government high handedness.”
Lisa Sprick, president of Sprick Roofing Company Inc. in Corvallis, Ore., said her company's injury and illness data could be misunderstood by people seeing it without context on OSHA's website, and she called the new incentive rule mandates “ambiguous.”
Attorney Arthur Sapper of McDermott Will & Emery criticized OSHA's proposed rule (RIN:1218-AC84) that would enable OSHA to cite employers for recordkeeping problems dating back five years. The current limit is six months.
Sapper said the rule change would overturn the Volks case ruling by the U.S. Court of Appeals for the District of Columbia Circuit affirming the six-month limit ( AKM LLC v. Sec'y of Labor, D.C. Cir., No. 11-1106, 4/6/12; 43 OSHR 475, 5/16/13).
“OSHA is behaving like an imperial bureaucracy,” Sapper said of OSHA's attempt to overturn the court decision by revising a rule. Sapper represented AKM LLC at the appeals court.
The lone witness called to defend OSHA's efforts was Rosemary Sokas, a former medical officer for OSHA and now chairwoman of the Department of Human Science at Georgetown University's School of Nursing and Health Studies.
The OSHA reporting and recordkeeping changes enacted by the Obama administration are a “tool to identify problems and ensure policies work,” Sokas said.
Making injury data readily available will allow researchers to spot trends and let OSHA focus its limited resources where it will do the most good, Sokas said.
Walberg didn't indicate if the subcommittee or the Committee on Education and the Workforce will consider measures to limit OSHA recordkeeping and incentive rules.
Using the Congressional Review Act to nullify the rules is unlikely since none of the rules qualify as economically significant or have $100 million in economic costs, a requirement for CRA consideration.
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