OSHA's Cooperative Agreements – Proposed Rule Comments


The following was submitted as part of the record for the rulemaking on Cooperative Agreements. The comment period closed on 11/2/2010.

The opportunity to submit an official public comment into the record is appreciated. Prometrix Safety Consulting is a professional services firm with expertise in OSHA compliance and training, strategic planning, and business development.

The vast majority of employers understand that they have the legal obligation to provide their employees with an environment free from recognized hazards and they take this responsibility seriously. To do so, many employers implement safety and health programs and are committed to providing related training for their employees as part of their effort to comply with strict OSHA requirements. [Note: It shall be noted that although my firm works with clients in a variety of industries and of wide ranging sizes, these enclosed comments are submitted on our own behalf as a ‘stakeholder’. The enclosed comments, for simplicity, may only mention On-Site Consultation or SHARP; however, where applicable, the comments are intended to apply to all cooperative program aspects in the proposed rule].

Obviously, the OSH Act of 1970 defines the Agency’s mission, in part, “to assure the safe and healthful working conditions for working men and women.” The Act specifically provides a number of tools to assist the Agency with its pursuit of its mission. These tools include setting standards, enforcing requirements, providing training, and others. Furthermore, Section 2 of the Act, in part, states that Congress declares it to be the purposeand policy, as far as it is possible, to assure that working men and women are provided proper working conditions “by building upon advances already made through employer and employee initiative for providing safe and healthful working conditions.” (Section 2(b)(4)).

The On-Site Consultation Program, SHARP, VPP, and the other compliance assistance resources at OSHA, have proven to be highly effective for those who leverage these opportunities. Thus, these programs are noteworthy examples of what was intended by Section 2(b)(4) of the OSH Act.

In fact, the published proposed rule highlights this understanding where it states: “…Following the successful completion of an on-site consultation visit, employers may seek to participate in OSHA Consultation’s SHARP… The program recognizes employers who have demonstrated exemplary achievements in workplace safety and health by receiving a comprehensive safety and health consultation visit, correcting all workplace safety and health hazards, adopting and implementing effective safety and health management systems, and agreeing to request further consultative visits if major changes in working conditions or processes occur that may introduce new hazards… ”

The proposed rule recognizes the worker protection and compliance benefits of cooperative programs; however, some in the business community will perceive it as conflicting with that very premise by asserting that participating employers require an enforcement action to abate a newly discovered or introduced hazard(s). Such incongruence will certainly lead to confusion amongst the small business community, which in turn, would have the unintended consequence of diminishing their willingness to pursue exemplary compliance recognition (SHARP) and/or On-Site Consultation services. These, among other factors, suggest that the proposed changes are seemingly at odds with the intent of 2(b)(4) of the OSH Act.

The following excerpt from the proposal describes a reason for an inspection by Federal OSHA:

One such situation might arise in connection with workplace accidents that generate widespread public concern about a particular hazard or substance. As part of a national response to these hazards, OSHA may need to conduct programmed inspections of all sites within a specific industry.

Even if such a situation arose, Prometrix contends that it would be more effective for the State plan partner, employer, and OSHA to work together to collect whatever data or information is needed to properly abate the hazard. There is a lack of data to suggest that a judicious employer that has volunteered for Part 1908 review might abandon their responsibility of providing a safe work environment for its employees. The excerpt appears antithetical to current experience of employers seeking cooperative relationships with OSHA.

The next excerpt from the proposal describes the level of approval for OSHA to conduct an inspection at an “exempted” site.

To ensure this exception is applied only in exceptional circumstances where an onsite

investigation is clearly warranted, such investigations must be approved by the Assistant Secretary.

Prometrix Safety Consulting fails to see the need for this proposed change in accordance with the reasons outlined herein. However, if this proposal is ultimately promulgated, Prometrix Safety Consulting recommends that the highest level of scrutiny will be necessary and must not be delegated to Regional Administrators or Area Directors. In fact, Prometrix Safety Consulting believes that such approval must be in writing as a directed action from the Assistant Secretary to the respective Regional Administrator and/or State Plan Director. This formality will ensure that this proposed enforcement oversight authority will be used with the utmost discretion — which may help to partially allay the concerns from the small business community.

In aggregate, my interactions and discussions with small businesses lead me to conclude that – should these changes become a final rule – there will be a significant chilling effect on the demand for such services and recognition among employers that would otherwise seek OSHA’s assistance in achieving exemplary safety and health performance.

Mechanisms are already in place to ensure the safety of employees in a facility participating in a SHARP effort. It is counter-intuitive, not to mention counter-productive, for OSHA to deviate from the consultative working relationship existing between a judicious employer and Federal OSHA or State program on what appears to be issues that could be worked out informally. After all, abatement of hazards should be the end result sought by all parties involved. Common sense tells us that an employer investing significant resources and effort to pursue SHARP recognition is also committed to making its workplace an example of safety and health excellence. Similarly, employers that volunteer for On-Site Consultation services are also, by virtual definition, committed to identifying and abating workplace hazards.

It may be appropriate for OSHA, to conduct a review (or publish the data if already available) to support the notion that participating On-Site Consultation, SHARP, or other similarly recognized workplaces have a history of reluctance when it comes to abating identified hazards during the pre or concurrent 29 CFR 1908 review process(es). Otherwise, the program(s) will run the very real risk of being perceived as establishing “gotcha” opportunities for enforcement. If deemed appropriate, OSHA ought to further consider surveying a statistically significant and diverse set of SHARP-approved and On-Site Consultation recipients to assess this proposal’s impact on their participation rate (quantify the chilling effect).

It is common for most proposed rulemaking items published in the Federal Register to include the benefit of how many injuries, illnesses, and fatalities will be prevented with that new rule. This proposal neglects to consider the potential unintended consequence of needlessly exposing, in an aggregate net basis, employees to hazards which could have otherwise been identified and abated had the employer’s deciding not to participate due to this change had sought safety and health On-Site Consultation services.

It will prove helpful to OSHA to provide statistically significant data which reinforces the notion that the proposed changes are needed to address the “recalcitrance” of some participating employers that by implication would be reluctant to abate hazards under certain scenarios. It is reasonable conclude, that such “recalcitrant employers” would not be selected as possible SHARP participants in the first place.

With regards to OSHA State Plans, it is highly unlikely that these proposed changes will have any adverse administrative consequences with the exception of, as highlighted earlier, a significantly lower demand for On-Site Consultation services, SHARP, and other compliance assistance programs and resources.

The proposed rule also has some conflicts with common OSHA practice in the field. For example, there is an inconsistency between the proposed rule and Chapter 9 of the Field Operations Manual (FOM[1]). Formal complaints, unless they fail to allege a safety and health issue covered by OSHA, will routinely result in an on-site enforcement inspection without advanced notice while most non-formal complaints will initially result in “inquires” to the employer and may never actually be physically inspected. According, there is a distinction between the two terms and Prometrix believes that the distinction between formal and non-formal complaints significantly impacts how they are administered; to state otherwise will foster confusion.

OSHA is strongly urged to reconsider this proposal in its entirety so that its critical shortcomings can be addressed. These shortcomings include, among other things:

  • the unintended consequences of discouraging employers from seeking exemplary safety and health performance;

  • inefficiently overextending limited Agency resources by deploying them to the very employers who are most eager to protect their employees;

  • inconsistencies in the proposal which will create confusion for those it is intended to cover; and most importantly; and

  • allocating limited Agency resources on matters already under the auspices of OSHA’s state partners which creates duplicative efforts.

My experience and interactions with the small business community tells me that an employer’s motivation to achieve “exemplary” workplace safety and health status does not depend upon inspection exemptions. They understand that, in reality, they are more likely to be inspected as a result of a complaint than a programmed selection.

Most small businesses, in my experience, will admit that achieving the ‘recognition of excellence’ from the preeminent Agency is of greater value. Furthermore, participants understand that SHARP validates their good faith effort to protect their employees while also obtaining bottom-line competitive advantages over their peers and foreign competitors. Cooperative Programs offer a universal win-win result because workers are protected from hazards, employers have an improved bottom-line, and the communities benefit from the jobs and tax base remaining local.

This proposal will have a chilling effect on employers’ desire to enter into the SHARP program or seek On-Site Consultation services. With this proposed rule, it is easy to envision small businesses becoming skeptical of State OSH assistance and abandoning this invaluable pool of professional expertise. Many of these employers may, because of tight fiscal constraints, resort to seeking compliance with sub-optimized in-house resources and expertise, thus, resulting in delayed abatement – or worse… no abatement at all due to lack of proper expertise. Employers in this scenario have the will to become exemplary but often lack the expertise to do so.

In summary, this proposed rule promotes a “lose-lose” environment for employers and workers.

[1] http://www.dealer.org/files/public/OSHA-Safety/OSHA%20Field%20Operations%20Manual%203-09%20CPL_02-00-148.pdf

My experience and interactions with the small business community tells me that an employer’s motivation to achieve “exemplary” workplace safety and health status does not depend upon inspection exemptions. They understand that, in reality, they are more likely to be inspected as a result of a complaint than a programmed selection. Most small businesses, in my experience, will admit that achieving the ‘recognition of excellence’ from the preeminent Agency is of greater value.

Furthermore, participants understand that SHARP validates their good faith effort to protect their employees while also obtaining bottom-line competitive advantages over their peers and foreign competitors. Cooperative Programs offer a universal win-win result because workers are protected from hazards, employers have an improved bottom-line, and the communities benefit from the jobs and tax base remaining local.

This proposal will have a chilling effect on employers’ desire to enter into the SHARP program or seek On-Site Consultation services. With this proposed rule, it is easy to envision small businesses becoming skeptical of State OSH assistance and abandoning this invaluable pool of professional expertise. Many of these employers may, because of tight fiscal constraints, resort to seeking compliance with sub-optimized in-house resources and expertise, thus, resulting in delayed abatement – or worse… no abatement at all due to lack of proper expertise. Employers in this scenario have the will to become exemplary but often lack the expertise to do so.

In summary, this proposed rule promotes a “lose-lose” environment for employers and workers.

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