“There is no question that [current health and safety law] has saved hundreds of thousands of lives and countless others have avoided preventable illnesses and injuries,” said Rep. Lynn Woolsey, D-Calif., chair of the subcommittee. “But we cannot claim victory because more than 5,000 workers a year are still killed on the job, 50,000 die from occupational disease, and millions of others become seriously ill or injured.”
The hearing focused on the Protecting America’s Workers Act (H.R. 2067), which proponents claim could strengthen and modernize the Occupational Safety and Health (OSH) Act, the law that ensures the health and safety of American workers. Among the bill’s other provisions, it will improve whistleblower protections, strengthen enforcement and increase monetary penalties.
Witnesses testified that current sanctions do not provide adequate deterrence for employers to comply with the law and protect workers because penalties haven’t been updated in nearly 20 years. Further, penalties are not adjusted according to inflation as other laws currently are. As a result, witnesses said that some employers view them simply as the cost of doing business. The Protecting America’s Workers Act will index the increased civil monetary penalties to inflation in the future.
Michaels: OSHA Penalties Not Large Enough
In his testimony, Assistant Secretary of Labor for OSHA David Michaels shared the Department of Labor’s views on the Protecting America’s Workers Act, particularly the issue of enhanced penalties.
“Secretary Hilda Solis’ vision for the Department of Labor is ‘good jobs for everyone.’ Good jobs are safe jobs. Stronger OSHA enforcement will save lives. The administration supports both the goals of the Protecting America’s Workers Act and many specific provisions,” said Michaels.
“Most employers want to do the right thing. But many others will only comply with OSHA rules if there are strong incentives to do so. OSHA’s current penalties are often not large enough to provide adequate incentives, and we are very low in comparison with those of other public health agencies,” said Michaels. “Clearly, OSHA can never put a price on a worker’s life. It is vital that OSHA be empowered to send a stronger message, especially when a life is needlessly lost.”
Environmental laws carry much heavier penalties than penalties under the OSH Act. For example, in 2001 a tank of sulphuric acid exploded at a Delaware oil refinery, killing employee Jeff Davis, whose body literally dissolved in the acid. The OSHA penalty was only $175,000. Yet in the same incident, thousands of dead fish and crabs were discovered, allowing an EPA Clean Water Act citation of $10 million.
According to OSHA, the Protecting America’s Workers Act would improve the OSH Act by raising penalties for violations of the law, strengthening workers’ voices in the workplace, expanding the rights of victims and their families, expanding OSHA coverage to public employees, and requiring the abatement of serious, willful and repeat hazards during the citation contest period.
“Over the years, OSHA’s ability to effectively conduct enforcement programs has been greatly diminished,” said Eric Frumin, the health and safety coordinator of Change to Win. “The current penalties do not provide a serious deterrent to serious misbehavior by employers.”
Accountability
The legislation also will subject employers who knowingly put their workers in harm’s way that results in a fatality or serious injury to felony prosecution and prison time, equivalent to other federal laws, such as the penalties in the Clean Air Act and Clean Water Act.
The Department of Justice said that current environmental sanctions are successful at holding unscrupulous employers accountable for polluting and similar penalties should be applied to employers who knowingly harm or cause the deaths of workers.
“Adding felony provisions to the OSH Act, as proposed, would provide important tools to prosecute those employers who expose their workers to the risk of death or serious injury, whether charged in conjunction with environmental crimes or charged alone,” said John Cruden, the Deputy Assistant Attorney General for the Environmental and Natural Resources Division. “The Department of Justice supports the strengthening of OSHA’s criminal penalties to make it more consistent with other criminal statutes and further the goal of improving worker safety.”
Snare: Increased Penalties Won’t Make Workplaces Safer
Jonathan Snare, an attorney and partner with Morgan Lewis & Bockius LLP, testified at the hearing on behalf of the U.S. Chamber of Commerce. According to Snare, OSHA already has sufficient enforcement tools and penalties to impose sanctions against employers when necessary. Furthermore, he said, the Protecting America’s Workers Act would not improve workplace safety and health as some proponents claim.
“These proposed penalty increases and other sanctions will do nothing to assist employers to understand their obligations for workplace safety and health, such as the small business owner who is trying to understand how to comply with applicable requirements. How will increasing penalties help her design a more effective workplace safety program when she knows she is unlikely to see an inspection unless there is an accident or fatality? This employer is obviously better served with more outreach and compliance assistance materials than increased penalties,” Snare said.
“The Protecting America’s Workers Act would radically restructure the OSHA civil and criminal penalty regime, as well as make other significant changes to how OSHA proceeds with its enforcement functions. Unfortunately, nothing in this bill, nor the signaled changes, will do anything to actually help employers, and most importantly small businesses, improve safety in their workplaces,” Snare said. “The goal is to prevent workplace fatalities and injuries from occurring, not merely punishing the employer after they occur.”