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House Lawmakers Grill OSHA Administrator on Enforcement Issues

By Tressi L. Cordaro
  • October 22, 2015

At a House subcommittee hearing on October 7, the head of the Occupational Safety and Health Administration, Dr. David Michaels, faced a grilling from Republican lawmakers over recently issued guidance memoranda for agency inspectors and examples of allegedly over-the-top enforcement actions.

In opening remarks, Workforce Protections Subcommittee Chairman Tim Walberg (R-Minn.) complained that despite a pledge of transparency in its enforcement policies and practices, the Obama Administration had failed to keep its promise by issuing enforcement guidance to alter significant rules without public input. He pointed to three guidance memoranda OSHA released this summer on chemical safety, including one that he said erased an exemption to OSHA’s Process Safety Management (PSM) standard for 3,800 retail establishments. The issue also has caught the attention of Republican senators (see our article, Lawmakers Pledge Action to Curb Agency Guidance Documents).

Assistant Secretary Michaels responded that OSHA has held “countless” public stakeholder meetings about the retail exemption memorandum, and thus employers should not have been surprised when it was issued. The new policy clarifies the exemption in two ways. First, it makes clear that retail facilities handling high-hazard chemicals are exempt from the PSM standard if they sell chemicals in small quantities to the general public. In addition, it does away with the so-called 50 percent test; namely, that an establishment was exempt from PSM coverage if it derived more than 50 percent of its income from direct sales of highly hazardous chemicals to the end user. Under the new policy, such establishments are no longer exempt.

Michaels said they did. “Standards carry the force of law, but the way we interpret them and enforce them come from those documents and other sorts of documents,” Michaels answered. “So we will use those documents to issue citations, for example, because it tells our inspectors what to do.”

Two lawmakers who were not members of the subcommittee peppered Michaels with examples of allegedly unreasonable OSHA enforcement actions. Contending that enforcement should be coupled with common sense, Representative Vicky Hartzler (R-Mo.) gave examples of employers who she said were cited because water at an eyewash station was too cold, an extension cord was kept in the wrong place and no yellow line existed 10 feet from the edge of a flat roof. Representative Mike Rogers (R-Ala.) called attention to an employer who allegedly got a $50,000 penalty for not having a yellow line around a machine. Michaels’ said he would have to “look at the specifics” concerning these complaints. He pointed out that OSHA has a free consultation service for small employers that exempts them from inspections while they use the service.

Hartzler commended him for that program, but noted that OSHA might threaten, say, a $6,000 penalty for a non-serious violation, but then tell the employer the agency will cut the penalty to $2,000 if the employer pays the penalty right away rather than contest it. “How’s that different from extortion?” she asked. Michaels did not address her question, but stated that OSHA cannot charge $6,000 for a non-serious citation if it is a first such offense.

Regarding OSHA’s whistleblower program, Hartzler wondered how many whistleblower inspections result from complaints by employees who were fired for cause, such as incompetence, but who then complain to OSHA to retaliate against their former employer. Michaels said he did not know, but acknowledged that “it is a common finding” that whistleblower complaints arise for reasons other than over safety and health issues.

Rogers described what he said were two cases wherein an OSHA inspector found a problem and ordered abatement, but declined to explain how the business could come into compliance. The employer hired a consultant and took appropriate corrective action, but still received a penalty from OSHA. “Why in the world would you not tell somebody what they have to do to come back into compliance and then if nobody’s been injured, they fix it within a reasonable amount of time, why would you fine them?” he asked.

Michaels reiterated the availability of OSHA’s small business consultation program, and noted that the agency “actually hear[s] from employers all the time” that they do not want the agency prescribing how to fix problems. Not assessing monetary penalties, he added, would incentivize employers to do nothing to correct workplace safety and health hazards before OSHA arrived.

In his opening remarks, Michaels asked lawmakers for help in raising civil and criminal penalties, adding OSHA protections for 10 million public sector employees who now lack them, and upgrading OSHA’s whistleblower provisions in the Occupational Safety and Health (OSH) Act. Ranking member Representative Frederica Wilson (D-Fla.) noted that, on average, an OSHA-covered business is inspected just once every 140 years, and that the House of Representatives’ proposed 2016 fiscal budget for the agency would cut funding by 14 percent. She called on lawmakers to support H.R. 2090, which would update the OSH Act. At one point during the hearing, Michaels stated that fewer than 40 percent of injury and illness reports made by employers under new reporting standards that went into effect on January 1, 2015, are drawing OSHA inspections.

In other OSHA news, the agency has announced it will extend the deadline until October 28, 2015, for submitting comments on its proposed rule clarifying an employer’s continuing obligation to make and maintain an accurate record of each recordable injury and illness. Remarks may be submitted electronically to http://www.regulations.doc (Docket Number: OSHA-2015-0006, RIN 1218-AC84).

©2015 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

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