Testimony on the New Safe Act of 1999

Testimony before the Employment, Safety & Training Subcommittee of the Senate Committee on Health, Education, Labor & Pensions by Edwin G. Foulke, Jr. of Jackson, Lewis, Schnitzler and Krupman on behalf of the U.S. Chamber of Commerce

March 4, 1999

Mr. Chairman and Members, my name is Ed Foulke. I am a partner with Jackson, Lewis, Schnitzler and Krupman, in the Greenville, South Carolina office. As part of our law firm's OSHA practice group, I represent employers of all sizes in inspections, enforcement, litigation, compliance counseling and rulemaking. I have specialized in the area of labor and employment law for 20 years. From 1990 to 1995, it was my honor to serve as a member of the Occupational Safety and Health Review Commission and was its Chairman from 1990 to 1994.

I am here today representing the U.S. Chamber of Commerce. With your permission, I would like to make a few remarks and submit a written statement for the record.

Please allow me to begin by telling you how much the U.S. Chamber appreciates the opportunity to testify before this subcommittee on The SAFE Act of 1999.

Mr. Chairman, I know that in the last Congress, you were praised by your colleagues on the other side of the aisle for consulting with them and all of the players in this arena. You should know that there are a lot of us working in the area of workplace safety and health who also sincerely appreciate your outreach efforts and the dedication you have shown to finding workable solutions to the concerns we all share about this area.

I believe most people understand that this legislation is not an attempt to cut OSHA, or to change or reverse the legislative scheme set out in the OSH Act. Instead, it is an attempt to provide OSHA with another means to assist employers in achieving a safe and healthful workplace for their employees.

For the past five years, the Administration, OSHA, and stakeholders across the country have declared over and over that a new partnership approach is necessary to achieve workplace health and safety. Clearly, a workable partnership is needed. It is my hope that the SAFE Act may be one such vehicle in making the cooperation between employers, employees and their representatives, Congress, and OSHA a reality.

Almost every day of my working life, I deal with many of the same issues that OSHA does. I know that most employers care about their employees. As every Secretary of Labor for the past 15 years has said, there are some "bad actors" out there, but "some" does not mean "all." It has been my experience that the vast majority of them are not. Most employers, I believe, want to keep their employees safe and obey the law.

Most employers strive to provide a safe and healthful workplace. However, many employers, especially small businesses, just do not have — and most likely will never be able to achieve — the in-house scientific expertise necessary to address every conceivable risk that might exist. We must also recognize that many small employers will never have the personnel, nor the financial ability, to implement a comprehensive safety and health program that you would expect to see at a Fortune 500 company. However, encouraging an employer through minimal incentives to voluntarily work with a qualified and certified safety and health professional to develop a safety and health program, which is tailored to meet that employer's safety and health needs, seems appropriate.

We have heard for years now — through Republican and Democrat administrations — that OSHA will never have enough Compliance Officers — or enough resources — to inspect all of the workplaces OSHA would like to visit every year. The SAFE Act will allow OSHA to further focus its limited enforcement resources on those employers who refuse to protect their employees from injuries and illnesses, while at the same time, allow what I call "surrogate compliance officers" in the form of qualified safety and health consultants to conduct voluntary inspections at worksites that OSHA may never have had the opportunity to inspect.

We have also heard about "common sense regulations" and "government reinvention." The President's own National Performance Review endorsed third-party consultations. The time has come for the regulators and the legislators, as well as the affected stakeholders, to come together and try to determine alternative ways to achieve safe and healthful workplaces. The SAFE Act encouragement of third-party certified consultation is one such alternative means to achieve this goal without affecting OSHA's enforcement program. As I stated earlier, the SAFE Act is a reasonable, voluntary method that OSHA and employers can use to protect employees and improve on-the-job safety and health.

There is no doubt that OSHA's consultation programs have been effective in preventing and reducing hazards in the workplace. However, employers frequently have had to wait for extended periods of time before receiving technical assistance from the agency. In addition, only small businesses could normally avail themselves of such programs. I would also note that although OSHA, over the past several years, has made a strong attempt to publicize the consultation programs, it has been my experience that many employers are still unaware of the program.

OSHA says that workplaces with safety and health programs are good business — that the programs can save lives, that employees are more productive, and that employers can reap wonderful benefits. Having seen the success of participants in OSHA's Voluntary Protection Program, I agree. The VPP has proved to be a tremendous help in assisting those employers who have chosen to participate in it. The agency brags about these workplaces and this voluntary program — and the praise is well-deserved. However, it is important to remember that the employers in the program were, for the most part, already below their industry average in lost-time injuries and illnesses and already had good safety and health programs in place. I believe that part of the success of the VPP program has resulted from the voluntary commitment those employers have to the safety and health of their employees, as well as the cooperation and incentives OSHA has provided as part of the program. I see the SAFE Act as one level below VPP status, but will achieve the same desired result of improved workplace safety and health for employees.

I also believe that a major benefit to the SAFE Act is that it would provide a voluntary mechanism for employers to successfully implement a safety and health program, which is tailored to that employer's facility and work process. In addition, it would provide employers with a way to measure the effectiveness of that program with the assistance of a knowledgeable, certified consultant. The kind of proactive consultation program that the SAFE Act envisions can be implemented without an undue burden on OSHA, either financially or in terms of personnel.

The basic ideal of the SAFE Act, to me, seems to be based on the premise that the U.S. Government — in this case, OSHA — is going to encourage employers to voluntarily develop comprehensive, yet workable, safety and health programs with the assistance of qualified outside assistance without the threat of monetary repercussions for a limited period of time and under limited circumstances. This, along with a continued effective enforcement program by OSHA is, I believe, the message the government should want to send to American business owners.

As the former Chairman of the Occupational Safety and Health Review Commission, I have an understanding of OSHA's noble mission — to assure, so far as possible, that working men and women in this country have safe and healthful working conditions. To continue doing that, I think we have to provide more — not less — choices that employers can use to achieve full workplace safety and health for all employees. I see the SAFE Act as one such step to reaching that goal, which I believe each and every person in this room sincerely wants to achieve.

I would again like to thank you, Mr. Chairman and the Subcommittee Members for allowing me the honor of testifying before you. I would be happy to answer any questions you may have.