The third-party plan
The Safety Advancement for Employees Act, S.B. 1237, authored by Senators Mike Enzi (R-Wy.) and Judd Gregg (R-N.H.), and its near-identical companion, H.R. 2579, introduced in the House in late September by Rep. Jim Talent (R-Mo.), would allow employers to hire government-approved consultants to certify that their worksites are OSHA-compliant.
The politicians say their plan is designed to address a gross shortage of OSHA inspectors. "With only 2,451 state and federal inspectors regulating 6.2 million American worksites, an employer can expect to see an inspector once every 167 years," Sen. Enzi remarked upon introducing the SAFE Act. OSHA staffers, however, are not the bill's most obvious beneficiaries. Employers stand to gain two-year exemptions from civil OSHA penalties by getting a consultant's seal of approval for their sites.
Health and safety consultants could benefit, too, from a whole new customer pool. But some aren't sure if the potential risks for those who would sign up as inspectors don't outweigh the advantages.
What are its chances?To be sure, any serious discussion of the impact of this OSHA reform effort is premature. In mid-October, both pieces of legislation were still waiting for committee action.
Still, spokespeople in Sen. Enzi and Rep. Talent's offices say they're "hopeful" about their chances to pass a law. At press time, it was rumored that Majority Leader Trent Lott, a SAFE Act co-sponsor, had promised Sen. Enzi a hearing on the Senate floor in February, 1998. And Talent's staff was looking forward to a spring, 1998, mark-up by the House Committee on Education and the Workforce.
Indeed, the feeling on Capitol Hill is that the SAFE Act, with some bi-partisan support and a moderate mission, stands a better chance of passage than any of its predecessors.
How it would workThough the bills propose numerous changes to OSHA enforcement (for more on the House and Senate versions of the SAFE Act, see p. 8 in this issue of ISHN), the so-called Third-Party Consultation Services Program section is the core of reform.
Here's how it would work:
Employers would be encouraged to voluntarily enlist "qualified" safety and health consultants (see box, "Could you be a third-party consultant?") to evaluate their workplaces and determine whether they are in compliance with the OSH Act.
Within ten days of inspecting a worksite, a consultant would be required to provide the employer with a written report identifying violations and recommending corrective measures that would bring the employer into compliance.
Then, according to the language of the bill, within 30 days of submitting the report, or on a date agreed upon by the consultant and the employer, the consultant must re-inspect the worksite and provide the employer with a declaration of compliance if the violations have been corrected.
Having been declared to be in compliance, an employer is then exempt for two years from any civil penalty, as long as the employer continues to make a good faith effort to remain in compliance, and as long as there has not been a fundamental change in the workplace hazards.
Some say third-party inspections sound like a privatized, expanded form of OSHA's consultation program-a free service that few employers utilize. In fact, at his confirmation hearing, OSHA chief nominee Charles Jeffress questioned whether employers would be willing to pay for a service they can get for free from OSHA.
Potential problemsSo, how could the third-party plan create problems? Health and safety professionals, labor representatives, and non-partisan bystanders who spoke with ISHN, point out several ways.
First, there's the question of bias. How difficult will it be for hired consultants to give unfavorable reviews and withhold declarations of compliance from employers who are paying their fees?
"There's no doubt it would put consultants in an awkward position," says Bob McClay, associate professor of safety science at Indiana University of Pennsylvania. "OSHA would have to put pressure on them so they don't cave in," McClay says.
Jerry Ray, a consultant for American Risk Consultants Corp., in Oakland, Cal., and president of the American Society of Safety Engineers, which supports the bill, argues that the threat of losing government certification is enough to dissuade consultants from selling out to employers. "Appearing on a registry would be incentive to act in an ethical manner," Ray says. "If you blow it, you're off the list."
Another source compares certification of consultants to conduct OSHA audits to certification of accountants to audit taxes. "There are CPAs all over the place. They're not stupid enough to get bought off for a couple thousand dollars."
With a strict advisory committee qualifying consultants, corruption can be averted, says American Industrial Hygiene Association Government Affairs Director Aaron Trippler.
"The people who are going to be allowed to provide services are going to have to be professionally certified and tied to a code of ethics already," says consultant and AIHA member Gayla McCluskey.
Bill Borwegen, health and safety director for the Service Employees' International Union (SEIU), complains, "the bill would give employers the ability to hire and fire their own OSHA inspectors."
But a clause in the bill that says "records relating to consultation services are not admissible in a court of law or administrative proceeding" against the employer might take off some of the pressure to write a glowing report. Records would be admissible in court, however, "to show gross negligence, fraud or malfeasance of a qualified consultant." That raises another concern for consultants: liability. "Insurance coverage will be a concern," says ASSE spokesman Tim Fisher.
Auditors will be open to lawsuits, warns SEIU's Borwegen. Workers can't sue their employers, and they can't sue OSHA inspectors, but they can sue consultants, he points out. "If you're a worker who finds out you're getting screwed out of workers' comp, you can get a copy of this auditor's report and sue the hell out of him. It's deep pockets, right?"
Another question raised among safety and health professionals is whether the third-party plan might backfire by inciting employers to let go internal staff. Especially among small or mid-size employers, some EHS pros wonder, would there be a temptation to replace in-house safety professionals with a consultant who could be paid every two years to exempt the firm from OSHA penalties?
But the bill's supporters say that's ludicrous. "Look at it this way," says AIHA's Trippler. "If you have a financial audit every year, does that mean you get rid of your bookkeeper?"
Even if the legislation is passed, consultants shouldn't expect new business to crop up overnight. The program would be strictly voluntary. And it would cost employers money, not only to contract a consultant, but to remediate any problems in order to get the penalty exemption. Many might opt to wait 167 years for OSHA to come around.