H.R. 5663, the Miner Safety and Health Act of 2010, would significantly raise OSHA civil penalties and also expose more corporate officers to potential criminal penalties.

AIHA, ASSE Split on OSHA Reform Bill

Three top leaders from the U.S. Labor Department endorsed H.R. 5663 at a House hearing Tuesday, but the leading safety professional associations have taken opposing sides on the bill.

H.R. 5663, named the Miner Safety and Health Act of 2010, got a full airing Tuesday in a hearing of the U.S. House Education and Labor Committee. The bill's provisions go well beyond its name -- violations that are now classified as misdemeanors would be felonies, and the bill would expose "any officer or director" of a cited employer to potential criminal penalties. Currently, only corporations and sole proprietors can be criminally liable. The new bill, incorporating elements of the Protecting America's Workers Act (HR 2067), would significantly raise OSHA's civil penalties for violations.

Three top leaders from the U.S. Labor Department -- MSHA chief Joe Main, OSHA chief Dr. David Michaels, and Solicitor of Labor M. Patricia Smith -- endorsed H.R. 5663 at the hearing, but the leading safety professional associations have taken opposing sides on the bill. AIHA President Michael T. Brandt, DrPH, CIH, wrote July 9 to U.S. Rep. George Miller, D-Calif., the committee's chairman, saying AIHA mainly supports the bill's changes. "Consistent and substantial penalties are one of society's primary means to deliver some measure of justice and improve conditions that affect public health and worker health and safety," Brandt wrote. "However, criminalizing willful violations through changes in the regulations must be carefully considered and applied. The standard of evidence for willful violations will have to be higher than it is today and OSHA and MSHA inspectors will need increased training and skill development to meet the level of evidence required."

ASSE, however, issued a statement Tuesday opposing the new bill. ASSE President Darryl C. Hill, Ph.D., CSP, said in the release, "ASSE is particularly concerned that this rush to markup does not address a glaring failure of the OSH Act to provide more than eight million public sector workers with the same minimal federal occupational safety and health protections that all other workers enjoy. To propose toughening the safety and health protections most workers already have while so many other Americans -– all public servants, many of who serve to protect our welfare –- are not protected at even current levels of protection is unfair to those public servants," he continued. "Over the last several years, ASSE's Florida members have worked with labor and business groups to advance protections for state, county, and municipal workers. We know how difficult it would be to go from state to state to address this problem. The OSH Act will not be truly reformed until public sector workers receive the workplace protections they deserve."

ASSE said it does not oppose increasing levels of civil and criminal penalties as proposed if the new definition of employer under the criminal provisions is changed from "any officer or director" to "any responsible officer or director." He said this would protect ASSE members doing their jobs from being held accountable for others' failure to address OSH risks. "ASSE does not seek protections for an SH&E professional's failure to fulfill professional responsibilities," Hill said, "but worker safety and health is best served by putting those responsible for an organization's commitment to safety and health on notice of penalties that can result from shirking that responsibility."

Jonathan Snare, a former OSHA administrator, also testified Tuesday and said the bill's proposed tough criminal penalties "will not result in any real-world impact that will improve workplace health and safety. . . . Penalties alone will not improve workplace safety," he added. "We believe this bill is only about punishment of employers, the vast majority of whom want to do the right thing."

United Mine Workers President Cecil Roberts and Bruce Watzman, regulatory affairs senior VP for the National Mining Association, also testified.

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  • OHS Magazine Digital Edition - June 2019

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