Today, the House Education and Labor Committee’s Workplace Protections Sub-Committee will hold a hearing to discuss proposed changes to the Protecting America’s Workers Act (H.R. 2067). Unfortunately, this legislation seeks to simply increase penalties on employers for OSHA violations and expand liability instead of promoting cooperative engagement between employers and OSHA. For OSHA to be successful, manufacturers need the agency to be a resource as much as it is an enforcement agency. This bill and subsequent changes that are likely to be considered overturn more than 15 years of cooperative efforts between OSHA and employers.

For several years we’ve seen continued improvement in workplace injury and illness rates. This improvement is largely the result of a new approach to OSHA that first came about during the Clinton administration. Instead of an approach of just levying higher penalties and issuing more citations, the agency began to proactively work with employers to ensure that they had the resources and information necessary to make workplaces safer.

The goal of any OSHA legislation should be to make workplace safer. This legislation will foster a more adversarial relationship between employers and will not assist employers (particularly smaller sized employers) in better understanding the complex framework of existing OSHA requirements.

The NAM’s Keith Smith spoke Thursday at the “OSHA Listens” session, a daylong public event to gather comments  from people, groups and companies affected by federal safety and health regulations. The Occupational Safety and Health Administration has also posted submitted comments.

In December, OHSA released its regulatory agenda for the first half of 2010. Here’s a summary sheet.

Today, OSHA held what we hope is the first of many efforts to reach out to the employer community to discuss key issues facing the agency. I was able to speak at the “OSHA Listens” event to offer manufacturers’ suggestions for how OSHA can assist employers to make workplaces safer. First, it’s important to realize that our workplaces have continued to become safer. Second, policymakers need to understand what efforts have helped contribute to these improvements. In pursuing an overly aggressive, enforcement-first agenda, the agency could allocate resources away from effective compliance assistance programs.

In my remarks I emphasized that OSHA is not the entity that actually makes workplace safer. Safety is achieved by employers and employees alike. Some people who gave presentations at today’s event argued that the best way to ensure that employees are involved in workplace safety is through union representation. However, safe workplaces are a right afforded to all workers, not just those covered by a collective bargaining agreement.

Today’s session afforded OSHA’s leadership a unique opportunity to hear directly from a wide array of stakeholders. While many express the opinion that safety is measured best by the number of OSHA citations and enforcement actions, we disagree. Safety is best measured by the absence of accidents, and to achieve that goal, OSHA should be a resource for employers and employees as much as it is an enforcement agency.

To read my prepared remarks, click here.

From The Hunton & Williams LLP Labor Policy Task Force’s blog, “Telling Signs That Ergonomic Regulations Are Making A Comeback“:

The Obama Administration recently proposed requirements to ensure that U.S. companies keep more extensive records of repetitive stress and other types of workplace injuries.  This is one of several signs that employers will face more regulation related to “ergonomics,” or the design and functioning of work spaces, equipment, and tasks in such a manner as to avoid such injuries.

The Occupational Safety and Health Administration (“OSHA” or the “Agency”) recently announced its intent to reinstate the “musculoskeletal disorder” column on its injury and illness 300 Form.  The Agency is also developing a proposed rule to add a definition of musculoskeletal disorders to the Occupational Safety and Health Act (the “Act”).  A notice of the proposed rule-making and opportunity for public comment will be issued in January 2010.

Yes, we see the same signs.

The post notes the OSHA had previously evaluated ergonomic issues by using the General Duty Clause of the Occupational Safety and Health Act. In 2001, OSHA eliminated the musculoskeletal disorder checkbox on the 300 Form, the result of a 2001 settlement agreement with the NAM and others. For a summary of that agreement in National Association of Manufacturers v. Chao, see the NAM’s Legal Beagle entry.

Business Insurance covered the ergonomics issue in a December report, “Employers wary of changes in approach, focus at OSHA.” See also Media Health Leaders, “OSHA Protections May Include Airborne Infectious Disease, Safe Patient Handling.”

Fresh from his Senate confirmation, David Michaels, the new Assistant Secretary of Labor for Occupational Safety and Health, made his maiden speech as OSHA Administrator Wednesday. He spoke at a conference sponsored by the National Institutes of Occupational Safety and Health, an address entitled, “Making Green Jobs Safe: Integrating Occupational Safety & Health into Green and Sustainability.” Excerpt:

I think it’s very fitting and proper that my first speech as Assistant Secretary should address the issue of green jobs - what green jobs mean for the earth, for our economy and for American workers.

We’re all aware of the job opportunities that green jobs offer, and in the present economy, new technologies with the potential of new jobs are especially welcome.

Secretary of Labor Hilda Solis recently announced nearly $55 million in green job grants, authorized by the American Recovery and Reinvestment Act of 2009. These grants will support job training and labor market information programs to help workers, many in underserved communities, find jobs in expanding green industries and related occupations.

Is it fitting, really, that the first comments by a powerful federal regulator single out one segment of the economy for implicitly favored treatment? No one really knows what “green jobs” or “green industries” are; subjective definitions and standards are enemies of consistent regulation — and the rule of law, for that matter.

To be fair, the occasion was a forum dedicated to greenness, so comments to the topic were to be expected. But when speaking about the broader economy, Michaels offers even more of this subjectivity and invidiousness. This is a striking statement, coming as it does from a powerful regulatory and enforcement official who should embrace fairness and objectivity.

Where, and when possible, OSHA must move ahead on rulemaking for urgently needed standards - and to create good standards, we’ll need the input of scientists and engineers, academics, students and workers. We’ll also need allies in the progressive business community who will say “yes” to sensible changes and participate in the rulemaking process with constructive comments and insight.

Those comments divide employers into good business and bad business, progressives and reactionaries, those to be rewarded, those to be punished. In other words, “If you go along with us, support our proposals with our ’sensible changes’ you’re progressive and good, and we’ll get along just fine. If you disagree with our proposals, object to our ’sensible changes,” well, then, we won’t pay any attention to you. If you’re lucky. If you’re not, we might pay a lot of attention to you, and you won’t like it a bit.”

We would have expected a top official in the jobs-minded Obama Administration and Department of Labor to begin his tenure with speech that says, “We are going to work with everyone to create good jobs in a safe and healthy workplace.” Instead, we get a speech that told employers to fall in line with whatever OSHA says or pay the consequences.

Kudos to the Obama Administration and the Department of Labor for conducting webchats about the department and its sub-cabinet agencies’ regulatory agendas on Monday. They seemed to work well and provided useful information. (Earlier post.)

We’ll admit to be frustrated by the online comments from Jordan Barab, the acting administrator of the Occupational Safety and Health Administration (OSHA), on the topic of ergonomics. Next week Barab will become deputy administrator after the newly confirmed David Michaels assumes the top spot. This week, he offered conflicting commentary on whether the agency would propose new ergonomics regulations.

Here are two exchanges:

Monday December 7, 2009 4:08

[Comment From Judie Smithers] From the Secretary’s chat: The agenda has an entry at the proposed rule stage to add requirements to record musculoskeletal disorders in a separate column on the 300 log. Does this signifiy that OSHA is considering future action to promulgate an ergonomics standard?

Jordan : Judie, This is not a prelude to a broader ergonomics standard. No, we are simply putting the MSD column back on the OSHA log as was originally intended in the 2001 issuance of OSHA’s recordkeeping standard. MSDs continue to be a major problem for American workers, but at this time, OSHA has no plans for regulatory activity.

Monday December 7, 2009 4:32

[Comment From Holly] In a speech recently, you called ergonomics a “huge health and safety problem” and said the govt must “take the field and make some fundamental changes.” Given these comments, why WOULDN’T OSHA have plans for regulatory activity?

Jordan: Holly: You’re right. I called musculoskeletal disorders a “huge health and safety problem.” I also called it a “huge political issue” and that we are in the process of determining how we are going to address it. Our new Assistant Secretary will arrive later this week, and we will intensify the process of determining how we are going to address ergonomics.

So OSHA has no plans for a new ergonomics rule, but it might have plans next week after Michaels arrives? Repetitive stress disorders are a “huge health and safety problem,” but OSHA’s goal now is merely to “intensify the process?” What in the world is “intensify the process”?

Since Barab’s all over the map in those responses, let’s pin him down to Milwaukee, Wisc., where he gave a speech to the AFL-CIO on September 25, the speech that commenter Holly cites in her question.

Here’s what he said to the labor audience, with lawyers the primary constituency for new rules:

And soon we must confront the 60,000-pound elephant in the room: Ergonomics. Let’s acknowledge a couple of obvious things about “ergo.” First, it’s a huge health and safety problem, recognized by strong science. Second, it’s a huge political football that some very big players don’t want to see on the field. Well, for the sake of our working men and women, we have to take the field and make some fundamental changes in America’s workplaces.

That sounds like OSHA will propose a new rule, doesn’t it? The Clinton Administration used a “midnight regulation” to establish an ergonomics standard in 2001, repealed by Congress using the Congressional Review Act because of the rule’s multi-billion-dollar cost, ambiguity, and potential to destroy jobs.

We’ve put more of Barab’s map-skittering responses in the extended entry below. Judging from the answers, we suspect that if OSHA issues a new rule — President Obama’s inclination as announced on the campaign trail — it will try to disguise its costs and burdens to escape political backlash.

It’s a shame the Senate HELP Committee could not manage to hold a confirmation hearing for David Michaels to allowing a public examination of issues like ergonomics. Well, welcome aboard, Mr. Assistant Secretary.

The Senate yesterday evening confirmed the nomination of David Michaels to be Assistant Secretary of Labor for Occupational Safety and Health, i.e., administrator of OSHA.

His approval came on a voice vote as a part of a package of nominees. So the head of a major sub-cabinet agency important to employees and employers both was confirmed with neither a committee hearing nor a Senate debate. Accountabil……..

Congratulations and best of luck, and remember: If jobs creation is the priority, it’s best to work WITH jobs creators — the employers.

Earlier posts.

From Michael Shaw at HealthNewsDigest.com, “It’s Time To End The Anti-BPA Hysteria,” covering numerous examples of the bad science, hyped reports, campaigning journalism and fear-mongering on the useful plastics additive, Bisphenol A.

Finally, “hysteria” is the best way to refer to the posture of Consumer Reports on BPA, as presented in the December, 2009 issue. The piece “Concern over canned foods” is rife with errors, but space allows me to mention only two.

Consumer Reports claims that dietary exposure to BPA is close to levels shown to cause harm in animal studies. Yet, the lowest oral exposures to BPA that cause adverse effects in animals are 500,000 times higher than typical human exposure.

Consumer Reports conflates oral ingestion data with animal studies in which BPA was directly injected into the blood, thus bypassing all metabolic pathways. As author Trevor Butterworth reminds us, every regulator and risk assessment in the world has rejected injection studies as a relevant method for assessing human risk from BPA, since our exposure to the chemical is through ingestion. Large, statistically rigorous, multi-generational reproductive toxicity studies have failed to reproduce the findings of injection-based studies.

Indeed, an EPA-funded rodent study recently published in Toxicological Sciences found that low-dose exposures of bisphenol A (BPA) showed no effects on the range of reproductive functions and behavioral activities measured.

See also this summary of a new EPA report from STATS, non-profit, non-partisan Statistical Assessment Service at George Mason University, “New independent study by EPA refutes BPA risk“: “[A] second independent study by the Environmental Protection Agency, published in the leading toxicological journal, Toxicological Sciences, has failed to find evidence of the low-dose hypothesis claimed by environmental activists and widely reported in the media.”

Unfortunately, as former Ohio Treasurer Ken Blackwell has written, a BPA scare can help drum up business, for trial lawyers especially. See “A Chemical Scare Campaign Is Good Business for Some.”

The public would be well served by a high-profile, dispassionate assessment of these issues. We suggest a Senate hearing as venue.

David Michaels, President Obama’s nominee to head the Occupational Safety and Health Administration, has been a prominent promoter of the “BPA is DANGEROUS” school of thought from his position as director of the Project on Scientific Knowledge and Public Policy.  A headline on a piece Michaels wrote for The Washington Post on BPA proclaimed, “If Two Similar Studies Completely Disagree, Look at How the Funders Framed the Issue.”

Agreed, SKAPP was formed with money from the trial lawyer industry and is supported by George Soros’ Open Society Institute. And Business Insurance reports, “Surging legal action over BPA targets manufacturers.”

So, yes, a Senate hearing would be a good place to explore the issues surrounding BPA, science and political advocacy as front for the litigation industry. How about at the Senate HELP Committee’s confirmation hearing for Michaels?

Alas, too late. Chairman Tom Harkin pushed through Michaels’ committee approval with no hearing.

Sen. Richard Burr (R-NC) issued a statement accompanying his no vote in the Senate HELP Committee Wednesday opposing the nomination of David Michaels to be head of the Occupational Safety and Health Administration.

When considering nominations of this magnitude, there is no substitute for a hearing that is public and open to the American people. Unfortunately, a full open hearing on the nominee was not held. It is difficult to vote on a nominee to hold such an important position based largely on discussions and correspondence that occur out of the public’s eye. The position of assistant secretary for OSHA is too important a job to leave to a behind-the-scenes process that excludes the ability of all stakeholders in our workplace safety system to give their perspectives.

Evading a hearing also sets a terrible precedent; as noted previously, President George W. Bush’s OSHA nominee appeared before a confirmation hearing to answer questions.

Burr and Sen. Tom Coburn (R-OK) were the only two votes against Michaels when the committee voted out his nomination. (See previous Shopfloor.org post.)

Matthew Madia of OMB Watch, supportive of Michaels’ nomination, commented at the group’s blog:

The HELP Committee voted on Michaels despite failing to hold a confirmation hearing. As I have mentioned before, I think bypassing the hearing was a mistake. OSHA is a major regulatory agency, and the leaders of such agencies should, as a rule of thumb, go before the Senate committee of jurisdiction to explain their views and qualifications. A hearing also would have provided an opportunity for Harkin and others to voice their support for Michaels on the record, and to explain exactly why he is well-qualified to lead OSHA. Michaels has been criticized, unfairly in my opinion, by some of those who fear he would take a proactive role in writing and enforcing protections for workers. (More here.)

The general point is right, although the final sentence is rhetorical silliness. Employers groups don’t stand around saying, “That guy scares us. He’ll be proactive in protecting workers.” The objections to Michaels are based on his criticism of Daubert standards that limit the introduction of junk science into civil litigation, his writings that express a reactive, hostile view toward business, and his alignment with the litigation industry.

It’s those issues that should have been explored at a Senate hearing, a hearing that would have given Michaels an opportunity to respond to the criticisms. Someone in a position of power determined that his nomination would not be helped by a committee hearing, and that decision did a disservice to the public and Michaels both.

The Senate Health, Education, Labor and Pensions Committee is scheduled to vote today on President Obama’s nomination of David Michaels to be Assistant Secretary of Labor for Occupational Safety and Health (OSHA). Despite Michaels’ controversial writings on science, litigaton and the Second Amendment, Chairman Tom Harkin (D-IA) did not schedule a committee hearing on his nomination allowing for a public exploration of his views.

The business meeting starts at 10 a.m.

For previous posts on Michaels, go here.

UPDATE (10:10 a.m.): The first item on the committee’s schedule is mark-up of S. 510, the FDA Food Safety Modernization Act. Sen. Harkin says he hopes to work through the bill by noon.

UPDATE (11:13 a.m.): With no discussion, the Committee passes out the nomination of Michaels to the Senate floor. Sen. Tom Coburn (R-OK) and Sen. Richard Burr (R-NC) voted no.

UPDATE (3:15 p.m.): Hans Bader of the Competitive Enterprise Institute revisits the many red flags in Michaels’ record. On the other hand, the American Public Health Association hails the committee action and urges quick confirmation by the full Senate.