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Washington Update

Washington Update: Letter of the law

March 24, 2014

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During a Feb. 4 hearing of the Workforce Protections Subcommittee, OSHA was accused of exceeding its authority and ignoring congressional mandates. But is the agency simply following the letter of the law?

The hearing focused on recent administrative moves – including guidance and letters of interpretation – that some stakeholders allege go well beyond clarifying policies.

Instead of being published in the Federal Register or open to public comment, these new interpretations and guidance are posted on OSHA’s website with little to no advance notice, according to Bradford Hammock, a former OSHA attorney who represented the U.S. Chamber of Commerce during the hearing.

“Unless you are a businessman out there who … gets on OSHA’s website every day, looking at the letters of interpretation, you’re not going to know what OSHA’s saying,” he said.

One example is a 2013 letter of interpretation allowing union representatives to accompany an OSHA inspector during walkarounds at non-union workplaces.

Subcommittee Chairman Rep. Tim Walberg (R-MI) noted that OSHA inspectors should ensure they do not take any actions that could be interpreted as supporting either the employer or labor side during a dispute. Walberg suggested the recent letter of interpretation lets an OSHA inspection become a “Trojan horse” that would allow in union officials wanting to organize a workplace.

Such changes should be made through public notice and a comment period, as outlined under the Administrative Procedure Act, according to Maury Baskin, who spoke on behalf of the National Association of Manufacturers and the Associated Builders and Contractors.

Another recent agency move called into question is the publication on OSHA’s website of guidance featuring alternative and voluntary exposure limits.

Hammock suggested the guidance could be used to cite employers under the General Duty Clause for not adhering to the stronger limits. As such, he said, the guidance becomes de facto rulemaking, circumventing the regular rulemaking process, and could create uncertainty for employers and confuse them about what limits they need to comply with.

A second look

But according to one witness at the hearing, OSHA’s actions are normal and within the agency’s authority.

Randy Rabinowitz, an attorney representing herself, testified that the hearing’s premise of OSHA changing long-standing policies has no basis in law. The agency routinely issues regulatory interpretations – about 100 a year, she said – and many come at the request of employers. If all interpretations were subject to a formal rulemaking process with notice and comment periods, employers would be negatively affected, Rabinowitz claims.

Regarding the letter of interpretation permitting union representatives during OSHA walkarounds, Rabinowitz said the law allows workers to choose their own representative. At non-union facilities, this may include non-employees affiliated with a union or community organization, and the letter merely clarifies that, she said.

“The recent letter that OSHA published just continues its long-standing policy to allow non-employees who make a positive contribution to a thorough and effective inspection to accompany OSHA as an employee walkaround representative,” Rabinowitz said.

On the matter of using the General Duty Clause to cite employers for failing to adhere to non-OSHA exposure limits, Rabinowitz argued against the assertion that the guidance is a regulatory workaround. Posting information on OSHA’s website does not meet the requirements necessary to cite an employer under the General Duty Clause, she said, because it does not provide evidence that the employer who failed to comply with third-party limits had actual knowledge of employees being in harm’s way.

The 90-minute hearing went much like this: One interest group decried OSHA for violating mandated procedures, and another defended the moves as perfectly legal. So which is it?

Walberg suggested that OSHA’s recent actions amount to a re-write of the law “through executive fiat.” Meanwhile, Rabinowitz characterized one concern as “a host of horribles that hasn’t come to pass, that’s being imagined and may not be real.”

Claims of authoritarian rule are likely a stretch. And as Rep. Joe Courtney (D-CT) suggested at the hearing, maybe it’s time to move on to more substantive matters, such as how to provide OSHA with better tools to protect workers from injury and death.

The opinions expressed in “Washington Update” do not necessarily reflect those of the National Safety Council or affiliated local Chapters.

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