The federal Occupational Safety and Health Administration (OSHA) substantially subsidizes State programs offering free on-site and off-site safety and health consulting to any US business upon request. These so called "consultation agreements" are authorized under Sections 7(c)(1) and 21(c) of the Occupational Safety and Health Act of 1970. (Footnote 1). The intent is to encourage or enable employers to voluntarily improve workplace environmental conditions by offering a confidential service using State personnel. Currently, over 25,000 on-site consultation surveys are conducted each year nationwide. (Footnote 2).Each state enters into a legally binding contract with OSHA, called a "cooperative agreement", setting forth technical and financial terms to be met as a condition of program approval. Specific program requirements are outlined in detail in the "Occupational Safety and Health Administration Regulations for Consultation Agreements". (Footnote 3).
Careful review of the consultation agreement regulations cited above, State statutes, State-specific cooperative agreements and judicial history suggests several advantages and quite a few potential disadvantages to employers who choose to utilize these services.
ADVANTAGES
The first and most obvious advantage is that industrial hygiene and safety services are offered free of charge to employers nationwide. (Footnote 4). This is particularly welcomed by small businesses otherwise unable to afford what is perceived as costly professional fees of private consultants.Second, employers in low population density agricultural states have a limited supply of practicing professionals. South Dakota does not have a single Certified Industrial Hygienist (CIH); Wyoming and North Dakota have only one each. (Footnote 5). On-site consultation programs may very well be the only practical resource available to companies based in such locations.
A third advantage is the exemption from OSHA general schedule inspections. Employers who permit the State to examine all conditions and operations at their place of employment rather than limiting survey scope to a particular problem or area as provided for in the regulations can be exempt for a period of up to one year. (Footnote 6). However, the exemption does not apply to imminent danger, fatality/catastrophe, complaint or other inspections determined by OSHA to be critical. (Footnote 7).
Fourth and finally, State on-site consultation surveys already in progress have priority over federal OSHA if the latter is intended to address the same working conditions, hazards or situations covered by the employer's original State request. OSHA may delay the onset of its inspection during the period from the state opening to closing conferences. However, OSHA retains the right to proceed within 30 days from the state opening conference. If the OSHA inspection is intended to address a subject area not within the scope of the employer's original state request, on-site consultation is deemed to be in progress only while the State employee is physically on company premises. Once the State employee has left the premises, OSHA's inspection may proceed immediately. (Footnote 8). Naturally, the waiting period would not apply to those critical inspections identified earlier.
DISADVANTAGES
Prior to scheduling an on-site survey, employers must agree to correct any imminently dangerous conditions or serious violations of OSHA regulations uncovered by the State. The regulations require the State to refer the matter to OSHA for enforcement where the necessary corrective actions are not taken. (Footnote 9). On face value this seems fair enough. However, closer examination reveals some hidden disadvantages to employers.If read carefully, OSHA's consultation regulations provide that classification of conditions as imminently dangerous or serious is based solely on the State employee's judgement. (Footnote 10). Appropriate classification of alleged OSHA violations is by no stretch of the imagination an exact science.
The OSH Act defines imminent danger violations as "...any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm..." (Footnote 11). The Act further defines serious violations as conditions or practices which are such that there exists "...a substantial probability of death or serious physical harm..." (Footnote 12). The subjective nature of these definitions is evidenced by OSHA's devotion of an entire chapter in its Field Operations Manual exclusively to violation classification. (Footnote 13).
Clearly, there are no objective criteria as to what precisely constitutes an imminently dangerous or serious violation. This confusion can only mean that an employer may be unfairly subject to the hastily-formulated opinions of a particular State employee. It is critically important to understand that the State's act of referral to OSHA is not subject to judicial review of any kind. As with contests to citations resulting from OSHA enforcement inspections, employers have only 15 days to request an informal discussion with the Consultation Manager regarding a State employee's findings. (Footnote 14). After that period, the employer will be irrevocably bound by the State's findings. If a referral is made, the employer's knowledge of the violation gained during the on-site inspection may be used as evidence that the employer has willfully disregarded the regulations. Willful violations each carry a minimum penalty of $5,000 and maximum penalty of $70,000. (Footnote 15).
OSHA and State Program management may argue that, once the case has been referred to OSHA's enforcement personnel, employers may seek judicial review before the Occupational Safety and Health Review Commission (OSHRC). In reality, such review would be available only after considerable legal expense and time commitment which would not have been necessary but for the State's act of OSHA referral in the first place. It is also important to note that State dissatisfaction with an employer's choice of abatement methods (even if technically justified by the regulations) or an employer's lack of timeliness can result in a referral.
A second disadvantage, frequently if not always overlooked, is the possibility that any records, reports or data generated by and in possession of the State may be subject to public disclosure under applicable State laws equivalent to the federal Freedom of Information Act (FOIA). (Footnote 16). If State case files are referred to OSHA as described above, they immediately become Federal documents and, as such, are definitely disclosable under FOIA. (Footnote 17). Wherever disclosure is permitted, the employer's protection is effectively eliminated. For example, in a subsequent private civil action by an employee, state consultation reports documenting OSHA violations could be used to prove the employer's liability. Even assuming no state or federal statute permits public access to state consultants' reports, the very existence of the report in someone else's possession may make some employers uneasy. While most state agencies have some system for protecting sensitive or confidential information, some systems consist merely of a locked file drawer. An employer has a much greater interest in keeping his own consultant's report confidential than does a state agency and would most likely provide a more secure place to maintain the document.
Third, an additional requirement of the State consultation program is that any hazards observed by the State, even if not part of an employer's original limited consultation request, must be addressed and included within the survey scope of work, as though they were within the scope of the original request. (Footnote 18). This issue may arise where State personnel, while being led to a specific area of concern within a plant, observe any and all OSHA violations apparent at the time. In practical terms, this renders any limited consultation request a moot point.
Fourth, State representatives retain the right to confer with individual employees during their survey. (Footnote 19). This essentially precludes management from temporarily excluding employees from the survey process. In contrast, when a private consultant is hired by the employer, employees may be excluded in order to minimize potential for unjustified alarm by allowing careful review of findings prior to dissemination.
Fifth, findings or recommendations offered at the conclusion of an on-site survey are not binding on an OSHA compliance officer in subsequent enforcement inspections. (Footnote 20). Therefore, an OSHA inspector may uncover additional violations and issue citations regardless of the State's failure to find those violations. Furthermore, State personnel are unlikely to testify or serve as expert witnesses on an employer's behalf in the event of litigation. Where a private consultant is hired by the employer, on the other hand, it is unlikely that he will not testify on the employer's behalf.
A sixth disadvantage arises from the prohibition on providing anything other than general advice or basic information to employers regarding correction of workplace hazards. (Footnote 21). The State consultant does not act as an on-going advisor regarding environmental monitoring, engineering designs or specifications. Once corrective measures have been identified by the State consultant, management must bring in yet another outside consultant (private this time) and introduce him to the workplace. While the hiring of this outside consultant is not a double monetary expense -- OSHA's consultation services are free -- the presence of two professionals giving advice can lead to the dissemination of inconsistent, and even contradictory, information to management and employees.
Seventh, technical qualifications and selection criteria for State representatives may be less rigorous than those of consultants in private practice. States generally are not able to provide the salaries which would make them competitive with private industry and are therefore unable to attract and retain experienced professionals. Since private consultants always seek future business, they have a strong economic incentive to help employers achieve their health and safety goals. Therefore, it is not unreasonable to expect them to deliver a superior work product. This is another reason why an employer may decide to simply hire a private consultant at the outset.
Eighth, budgetary restraints have stretched state and federal resources to the limit. Invariably, such demands upon State personnel, particularly in heavily industrialized areas with the greatest number of requests, cause delayed responses. In anticipation of this problem, OSHA consultation regulations mandate prioritization of requests depending on business size and types of anticipated hazards. (Footnote 22). Rest assured employers will always consider their problems high priority and yet may be unable to obtain quick response times.
Ninth, employers who qualify for a one year exemption from OSHA general schedule inspections should be aware that other-than-serious (non-serious) violations discovered during the course of a State consultants survey are subject to assignment of abatement dates, corrective measure plan development and completion reporting to the State just as if they were serious or imminent danger violations. (Footnote 23).
Tenth, and finally, funding mechanisms are such that they provide an incentive to states to conduct a greater number of site visits than they might otherwise conduct. This incentive stems from the fact that the federal government's contribution to the State program is based upon the State's estimated number of site visits for the following year. Consequently, if a State estimates that it will conduct 445 safety and health surveys in 1991 to receive $1,038,337 of federal funding, and it actually conducts only 350 surveys in 1991, the State may not be able to justify requesting funds for 445 visits in 1992. (Footnote 24). While expenses are reimbursed on a percentage basis, the State still receives more funding by conducting more visits because the annual estimate is based on number of visits. This incentive may cause State programs to achieve quantity at the expense of quality. In the end, the recipient of the services, the employer, and the people it was intended to benefit, the employees, suffer from this quantity-based funding scheme.
CONCLUSION
The on-site consultation programs funded by OSHA and offered through State Departments of Labor are a well-intentioned attempt to provide the nation's employers an opportunity to voluntarily comply with an exceedingly complex set of workplace health and safety regulations. Unfortunately, these well-intentioned programs may offer more disadvantages to an employer than advantages.Neither OSHA nor State representatives provide employers with a copy of the consultation agreement regulations, nor do they explain their full implications as we have attempted to do here. In order for the employer to make an informed decision, the government must divulge both the advantages and disadvantages of on-site consultation instead of merely tempting employers with the carrot of free services. Only a complete and well informed decision by management to call in the State, with no surprises, will ultimately assure a positive attitude towards workplace health and safety.
FOOTNOTES
(1) 29 U.S.C. §§ 656, 670
(2) OSHA Instruction TED 3.9, December 31, 1987.
(3) 29 C.F.R. § 1908
(4) 29 C.F.R. § 1908.1(a)
(5) 1991 Roster of Diplomates of the American Board of Industrial Hygiene, American Board of Industrial Hygiene, 4600 W. Saginaw, Suite 101, Lansing, Michigan 48917.
(6) 29 C.F.R. § 1908.7(b)(4)
(7) 29 C.F.R. § 1908.7(b)(2)
(8) 29 C.F.R. § 1908.7(b)(1)
(9) 29 C.F.R. § 1908.6(f)(1) and (4)
(10) 29 C.F.R. § 1908.6(e)(6) and (f)(1)
(11) 29 U.S.C. § 662
(12) 29 U.S.C. § 666; See D & S Grading Co., Inc. v. Secretary of Labor, 1990 OSH Dec. (CCH) 28,915 (failure to maintain a trench safety program as required by OSHA constituted a "serious" violation).
(13) OSHA Field Operations Manual, Chapter IV, Violations. OSHA Instruction 2.45B, June 15, 1989: amended by OSHA Instruction 2.45B CH-1, December 31, 1990.
(14) 29 C.F.R. § 1908.6(e)(7)
(15) OSHA Instruction CPL 2.45B CH-2, March 1, 1991.
(16) See e.g., CAL. GOV"T CODE § 6250 et seq. (Deering 1989); CONN. GEN. STAT. ANN. § 1-15 et seq. (West 1990); ILL. REV. STAT. ch. 116, para. 201 et seq. (Smith-Hurd 1988); N.J. REV. STAT. ANN. § 47-1A (West 1989); N.Y. PUB. OFF. LAW § 84 et seq. (McKinney 1988); PA. STAT. ANN. tit. 65, § 66 (Purdon 1991)
(17) US DOL-OSHA: "Disclosure of State Consultation Files." Robert W. Swain, US DOL-OSHA, Office of the Solicitor, Washington, DC, May 10, 1983. [Memo]
(18) 29 C.F.R. § 1908.5(b)(2)
(19) 29 C.F.R. § 1908.6(c)(1) If the employer does not agree to permit such contact, the survey cannot proceed.
(20) 29 C.F.R. § 1908.7(c)(1)
(21) 29 C.F.R. § 1908.6(e)(4) and (7)
(22) 29 C.F.R. § 1908.5(c)
(23) 29 C.F.R. § 1908.7(b)(5)
(24) Actual figures taken from the New Jersey 1991 Grant Agreement with the U.S. Department of Labor.
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