OSHA Reform on Congressional Agenda

April 5, 2013
Bill S. 665 revives the Protecting America’s Workers Act.

On March 22, members of the U.S. Senate reintroduced legislation which, if enacted, will dramatically enhance civil and criminal penalties under the Occupational Safety and Health Act, expand coverage of the Act to include most public sector workers, and impose new requirements and create new liabilities for “site-controlling” employers at multi-employer worksites.  The bill (S. 665) revives the Protecting America’s Workers Act (“PAWA”), which failed to secure passage in Congress after it was originally introduced in 2009 and reintroduced in 2011.  This updated version of the PAWA would require many of the same reforms included in previous proposals, including:

Increasing the maximum penalty for “Repeat” and “Willful” violations from $70,000 to more than $100,000.  Repeat or willful violations resulting in the death of an employee could be assessed a penalty as high as $250,000, with a minimum penalty of $50,000.  Maximum penalties for Serious and “Other-than-Serious” violations would also be significantly increased.

Expanding OSHA’s criminal liability provisions to make willful violations causing death or “serious bodily injury” a felony rather than a misdemeanor, with the potential for substantially higher fines and longer terms of imprisonment.

Updating the OSH Act’s whistleblower provisions to incorporate additional administrative procedures and protections.

Expanding coverage of the OSH Act to include all federal and state employees, as well as some local government workers.

Granting injured employees substantial new “victim's rights,” including the right to participate in OSHA’s inspection, the right to receive certain information, and the right to object to settlement agreements between OSHA and the employer.  In cases where an employee has died or is unable to assert his or her rights, family members would be able to advance his or her rights.  Labor unions would also have the right to object or contest settlement agreements between OSHA and an employer. 

The Senate bill, which was reportedly prompted by several recent news stories critical of OSHA’s handling of deaths in the grain handling industry, includes two new provisions that make this version of the PAWA more onerous than versions introduced in Congress in years past.  One new provision would expand the scope of the OSH Act’s General Duty Clause, which requires all employers to provide their employees with a workplace free from recognized hazards that are causing, or are likely to cause, death or serious physical harm.  In particular, the new provision would require employers to satisfy General Duty Clause requirements not only for their own employees but also for “any individual performing work” at the employer’s worksite.    As the law stands now, an employer must only satisfy the General Duty Clause with respect to its own employees.  The second new provision in the PAWA would direct OSHA to issue new regulations requiring a “site-controlling” employer to track all recordable injuries and illnesses occurring at a worksite, including injuries and illnesses occurring among contractors, subcontractors, and borrowed or leased employees. 

Given the current composition of the U.S. House of Representatives, passage of the PAWA – at least in its present form – is unlikely.  However, if passed, the PAWA will significantly alter the OSHA landscape for public and private employers. Even a substantially revised and weakened PAWA could make important modifications to the OSH Act.  Employers and employer interest groups are encouraged to monitor the progress of the bill, which may be tracked here.   

Rodney Smith, Pat Miller, Chuck Newcom and Matt Morrison are part of Sherman & Howard's Labor & Employment Law Department, practicing in the areas of occupational safety and health law. They routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.

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