ORC Worldwide, an environmental health and safety global consultancy based in D.C. with a client roster of many of the world’s largest companies, issued a generally favorable position piece on HR 5663.
“ORC has concluded that with a few modifications, the proposed amendments to the OSH Act have the potential to afford improved protections to at least those workers facing the most challenging workplace conditions in situations where their employers may be resistant to providing the most essential protections and meeting even the most basic compliance obligations.
“There are, unfortunately, still too many employers that do not sufficiently appreciate the legal necessity, the moral obligation or the business benefits of assuring a safe and healthful workplace – for those businesses, strong enforcement and assurances of worker rights may be necessary to incentivize compliance.
“Section 703. Correction of Serious, Willful, or Repeated Violations Pending Contest and Procedures for a Stay. This provision raises the most concerns for ORC and its members. It would require the period set in a citation for the abatement of any violation alleged to be serious, willful or repeated to commence upon the receipt of the citation by the employer and would disallow the suspension of the time set for abatement, triggered under the current OSH Act by the filing of a notice of contest, until the final resolution of the contested violation.
“ORC believes that at a bare minimum where an employer is contesting the appropriateness of the proposed date set for abatement or is denying the existence of any violation at all, the burden of getting a stay pending contest should be eased.
“The existing limited criminal sanctions contained in the OSH Act have been seldom invoked and are nearly universally recognized as inadequate in more than one respect. It is entirely reasonable to regard a willful violation that causes the death of an employee as a felony with appropriate associated penalties. However… we believe that a clarification of the intention behind substituting the word "knowingly" in HR 5663 for "willfully" in HR 2067, the Protecting America’s Workers Act as originally introduced, is necessary. In the absence of an explanation of this proposed change, there is a great deal of uncertainty around whether the use of the word "knowingly" effectively lowers the standard of proof for the prosecutor or whether the two words are legally equivalent.
“Similarly, the explicit addition of "any officer and director" to the definition of "employer" for purposes of identifying potential targets for criminal prosecution, absent a clarification of intent, raises significant fears among business managers that they could be subject to prosecution for merely being somewhere in the "chain of command" or having some kind of safety and health role in the company but having no knowledge of, or responsibility for, an event that causes an employee death. ORC urges, at a minimum, report language that would make clear that the Committee intends to limit potential liability to corporate officials who had knowledge of the existence of the condition that caused the injury or fatality and knew or had reason to know that the condition could result in serious injury or death, had the authority and ability to correct, or cause the correction, of the condition, and knowingly failed to exercise his or her authority to take appropriate action to correct the condition.