Modernizing the Occupational Safety and Health Act

On March 16, a House subcommittee held a hearing on proposed legislation to modernize the Occupational Safety and Health Act (OSH Act). The House bill, the Protecting America's Workers Act (PAWA), would update civil and criminal penalties and provide enhanced protection to workers who report unsafe working conditions.

Rep. Lynn Woolsey (D-CA), chair of the Workforce Protections Subcommittee of the House Education and Labor Committee, introduced the bill in April 2009. The recent hearing focused mainly on changes to civil and criminal penalties and to modernizing worker protections. The OSH Act has not been significantly revised since it was enacted in 1970, according to Woolsey's opening statement.

In addition to revising penalties, PAWA would extend occupational safety and health protections to state and local workers. The bill would also strengthen whistleblower protections by prohibiting retaliation against workers who report workplace hazards, illnesses, and injuries, or who refuse to work under conditions the worker believes could result in serious injury or illness.

Among those testifying at the hearing was the Assistant Secretary of Labor for the Occupational Safety and Health Administration (OSHA), Dr. David Michaels, who told the subcommittee that the Obama administration "strongly supports" PAWA. He noted that, although workplace injuries and illnesses have declined by 65 percent since 1973 as a partial result of the OSH Act, "the workplaces of 2010 are not those of 1970: the law must change as our workplaces have changed. The vast majority of America’s environmental and public health laws have undergone significant transformations since they were enacted in the 1960s and 70s, while the OSH Act has seen only minor amendments."

Michaels emphasized that OSHA has a limited ability to inspect the many workplaces throughout the country and, therefore, the agency needs to have penalties large enough to create incentives for companies to comply with OSHA regulations. According to his written testimony, "Swift, certain and meaningful penalties provide an important incentive to 'do the right thing.' However, OSHA’s current penalties are not large enough to provide adequate incentives. Currently, serious violations – those that pose a substantial probability of death or serious physical harm to workers – are subject to a maximum civil penalty of only $7,000. Let me emphasize that – a violation that causes a 'substantial probability of death – or serious physical harm' brings a maximum penalty of only $7,000. Willful and repeated violations carry a maximum penalty of only $70,000 and willful violations a minimum of $5,000." The average OSHA penalty is approximately $1,000, he told the subcommittee.

Woolsey's bill would increase the penalty for willful and repeated civil violations, for example, from $70,000 to $120,000; it would increase the maximum civil penalty from $7,000 to $12,000. The bill adds an additional penalty for violations that result in the death of an employee by allowing OSHA to fine the violator $50,000 to $250,000. The bill would also allow OSHA's penalties to be adjusted according to inflation. Michaels noted that penalties for violations "have been increased only once in 40 years despite inflation during that period." He added that penalties under the Clean Air Act could be 50 times higher than what OSHA could impose for the same incident.

OSHA's criminal penalties have not been updated in the history of the OSH Act and "are weaker than virtually every other safety and health and environmental law," according to Michaels' testimony. "The maximum period of incarceration upon conviction for a violation that costs a worker’s life is six months in jail, making these crimes a misdemeanor," he noted. In Woolsey's opening comments, she said that the Justice Department told the subcommittee that Justice rarely prosecutes these criminal misdemeanors because the violations aren't felonies.

Support for increasing OSHA's civil penalties came from another witness, John C. Cruden, Deputy Assistant Attorney General in the Environment and Natural Resources Division of the Justice Department. Cruden supervises attorneys prosecuting environmental crime cases in which violations have resulted in death or in which defendants knowingly put workers at risk of death or injury. He told the subcommittee that the successful prosecution of environmental crimes has rested on stiff criminal penalties in environmental statutes, not the criminal provisions in the OSH Act. He said, "[T]he Department of Justice supports the strengthening of the OSH Act’s criminal penalties to make those penalties more consistent with other criminal statutes and further the goal of improving worker safety."

Eric Frumin, health and safety coordinator for Change to Win, a coalition of five major labor unions, also supported increased penalty authority for OSHA. Although the agency can only impose small fines, he criticized OSHA for its lax enforcement. Frumin cited the small number of inspections OSHA conducts compared to a growing workforce, weak enforcement programs, and the low fines levied against violators. In FY 2007, for example, the final median penalty (after negotiation and settlement) for workplace fatalities was $3,675.

Although supportive of the PAWA's proposed increased penalties, Frumin noted, "The penalties proposed by PAWA are very modest. The new criminal sanctions are equally modest. Even with these improvements, we all recognize that if passed, PAWA will not put the OSH Act on an even par with the sanctions that negligent employers have already faced for years under our environmental laws."

The final witness at the hearing was a representative of the U.S. Chamber of Commerce, an association of business groups. Jonathan Snare is a partner in the Washington, DC, office of the Morgan Lewis & Bockius law firm and a former head of OSHA and the Department of Labor's Solicitor's Office during the Bush administration. Snare argued that PAWA was misguided by focusing on penalties, sanctions imposed after injuries and illnesses occur. OSHA has "sufficient penalties and enforcement tools" and should instead focus on compliance assistance programs and working with companies to ensure illnesses and injuries are avoided.

A companion bill (S. 1580) with the same title was introduced in the Senate by the late Sen. Edward Kennedy (D-MA) in August 2009 and has been referred to the Committee on Health, Education, Labor, and Pensions.

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