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Employers spoke, and federal health and safety officials listened.
The Occupational Safety and Health Administration (OSHA) announced Aug. 8, 2013, that it has withdrawn a proposed rule that would have increased scrutiny on employers that participate in the agency’s Safety and Health Achievement Recognition Program (SHARP).
“OSHA is withdrawing this rule based on stakeholder concerns that proposed changes, though relatively minor, would discourage employers from participating in the program,” the agency said.
This is a step back in the right direction for the Cooperative Programs, said Eric Conn, head of the OSHA Practice Group at Epstein, Becker, Green’s Washington, D.C., office. “This proposal was another in a disappointing series of moves by OSHA to devalue programs that have historically been a great way for employers to work in partnership with OSHA,” he said.
There was disappointment among those who had supported these changes since the announcement of the proposed rulemaking in 2010.
“I was really surprised that OSHA said the proposal was being dropped because employer participation would wane—it’s very curious and not how OSHA typically operates,” observed Celeste Monforton, professorial lecturer at The George Washington University School of Public Health. “OSHA did not cite any evidence that the diminution would happen, or point to an analysis prepared and submitted by commenters.”
SHARP Recognizes Small Employers
OSHA’s On-site Consultation Program offers free, confidential guidance to small and medium-size businesses that may lack the resources to employ safety professionals and that are seeking assistance with regulatory compliance. Trained safety and health professionals, provided by either state agencies or public universities, work with employers to identify workplace hazards, provide advice on compliance, and assist in establishing safety and health management systems. These services are separate from OSHA’s enforcement functions and do not result in penalties or citations.
Companies that successfully complete a comprehensive onsite consultation visit, correct all hazards identified during the visit and implement an ongoing safety and health program may be recommended for and receive SHARP status, which recognizes small and medium-size employers that are deemed “a model for worksite safety and health.”
Workplaces with SHARP status are exempt from OSHA’s scheduled programmed inspections during a specified period, usually about two years.
OSHA had proposed—and appeared close to issuing a final rule on—limiting the inspection exemption to one year and allowing programmed inspections at SHARP sites for “high-priority” safety and health issues. The Occupational Safety and Health Act actually authorizes only a one-year programmed-inspection exemption for SHARP-designated workplaces, but the agency has often extended the exemption to two years.
Unions and safety-advocacy groups backed the proposed changes as a way to address major hazards, like those targeted by National Emphasis Programs (NEPs) that could remain hidden behind the protection of the SHARP designation.
Eric Frumin, the director of occupational safety and health for the Change to Win federation of unions, supported the proposed rule, saying that OSHA shouldn’t have to be obstructed by its own regulations.
“We believe that an initial two-year exemption is too long,” Frumin said. “Second, we agree strongly that OSHA must have the flexibility to identify other critical inspections which also must take place even in these worksites that OSHA has recognized as safe.”
He cited chemical safety as an example. He referred to OSHA’s NEP on combustible dust or process safety management where the agency has “consistently found many serious violations regarding potentially severe hazards in these same industries which include worksites that would otherwise be exempted from NEP inspections because the sites have received official recognition in the SHARP program.”
Employers, State Consultation Programs Objected
OSHA said many stakeholders were concerned that the proposed changes would reduce an employer’s incentive to participate in the agency’s consultation programs. Several commenters were worried that the proposed changes would increase OSHA enforcement activities at SHARP-designated worksites and feared that the safety watchdog was trying to eliminate exemptions entirely or scale back incentives.
“Given that just over a quarter of recent On-site Consultation visits occurred on construction sites, Associated Builders and Contractors was especially concerned about the implications of OSHA’s proposal,” said Sean Thurman, the organization’s legislative affairs director.
“The rule would have increased targeted enforcement activities on responsible employers, who by their very involvement in the program signal a proactive willingness to work with OSHA in good faith to identify potential worksite hazards and improve their safety culture,” he noted. “Over time, the anticipated reduction in enrolled employers would have threatened the program’s existence, which would have ultimately been detrimental to workplace safety.”
Submitted comments on the proposal indicated objections from several state consultation programs, as well.
Terry Moen, the manager of the Wisconsin Health Consultation Program, responded: “Why? There is no data to support the need for this rather draconian rule change. It makes statements unsupported by data that says OSHA Enforcement needs this power. What the rule change accomplishes is that OSHA Enforcement trumps OSHA Consultation and diminishes the OSHA Consultation program.”
Cal/OSHA Consultation Service Senior Safety Engineer Kelly Howard told OSHA that the proposed changes were “not warranted and would be counterproductive.”
“This change would eliminate a positive incentive for employers to cooperatively achieve a safe workplace,” he warned. “To be truly effective, OSHA cannot rely solely on negative/punitive incentives.”
“Allow consultation to do their job,” remarked Jennifer Coker, representing the Kansas SHARP Association. “While there are areas of opportunity, the long term would damage the consultation program and tarnish the image of OSHA as partnering and working with employers for the safety of the worker.” The proposed changes would have caused the program to lose significance very quickly, she added.
In the withdrawal announcement, OSHA said it did not intend any of these results.
There was also consensus between the agency and many commenters. Stakeholders unanimously agreed with OSHA that the consultation program and the SHARP recognition are valuable ways to assist and recognize small and medium-size employers that are working to improve their workplaces.
“OSHA must continue to maintain its commitments toward robust and sincere cooperative efforts in order to balance its aggressive enforcement actions,” said Thurman. “Practical, successful compliance-assistance programs, paired with responsible enforcement, is the key to ensuring and enhancing safety in our industry and others.”
Roy Maurer is an online editor/manager for SHRM.
Follow him on Twitter @SHRMRoy.
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