On October 6th, ABC cautioned OSHA during a public hearing about the potential problems that could arise from the agency’s proposed rule that would allow employers to be held liable on a per-employee basis for failing to provide the proper personal protective equipment (PPE) and training to workers.
According to OSHA, the proposed rule will not require employers to provide any new type of personal protective equipment or training, but will clarify the remedy for violations of the existing rule. The proposed rule would allow OSHA to treat an employer’s failure to comply with the rule as a separate violation for each employee. In his testimony, ABC’s Director of Legal and Regulatory Affairs Bob Hirsch explained that while ABC may support a per-employee penalty in the case of employers who demonstrate a flagrant disregard for safety and health, as currently worded, the proposed rule could be applied to any violation no matter its severity.
“The vast majority of employers are making every effort possible to provide their workers with safe working environments,” Hirsch noted. “It is important not only for OSHA to acknowledge this publicly from time to time, but also for OSHA to ensure that its enforcement policy continues to recognize and differentiate between the good faith efforts of employers to comply and those instances where good faith efforts do not exist.”
Hirsch warned OSHA that the proposed rule could make it easier for unions to launch unfair and unwarranted attacks against nonunion companies using corporate campaigns that tarnish a business’s reputation and “responsible contractor ordinances” that impose qualification criteria, including regulatory compliance criteria, intentionally designed to prevent merit shop contractors from bidding on or winning projects. Hirsch cited an example of a “responsible contractor ordinance” in St. Louis, Mo. that prohibits a contractor from working on a city project if that contractor has received a citation within three years of the bid from any state or federal agency, including OSHA, regardless of whether that citation had merit.
Mentioning these attacks “is relevant because OSHA’s stated premise for the proposed rule was, in effect, to ‘let the penalty fit the crime’,” Hirsch pointed out. “Unless revised, the current proposed language would give OSHA, as well as state and local governments and organized labor the ability to apply or use the final rule in a manner that OSHA has expressly stated is not its intent.”