Comprehensive OSHA reform filed again this year could potentially be broken into pieces, such as tougher whistleblower protections, to make it easier for crucial provisions to pass the newly divided Congress, a key Democratic lawmaker said. Rep. Lynn Woolsey (D-CA) recently introduced a more stringent version of the Protecting America's Workers Act (PAWA) that beefs up agency enforcement powers, but acknowledged in an exclusive interview with Inside OSHA Online that the revised bill faces even higher hurdles in a Republican-dominated House.

An earlier version of PAWA made it through the House committee attached to mine safety legislation last year, but the bill lost momentum in waning months of the last session and made little progress in the Senate.

Woolsey, ranking Democrat on the workforce protections subcommittee, noted that this year's bill has also been strengthened to upgrade the difference between a misdemeanor and felony in the criminal penalties section, as well as adding a mechanism to ensure the effectiveness of state OSHA plans.

“We've just strengthened wherever we could,” Woolsey said. An earlier version of the bill, cosponsored by Rep. George Miller (D-CA), now ranking Democrat on the full House Education and the Workforce Committee, and other Democrats, received strong backing from workplace safety advocates, as well as the agency itself last year.

Woolsey said any number of provisions in the PAWA could be considered as separate legislative items in order to get some version of OSHA reform passed.“Any of it could be pulled apart and pieces of it could pass,” she said, naming the whistleblower provisions as one possibility. That section of the bill strengthens protections against employer retaliation for legally protected activities by workers. OSHA has responsibility for enforcing whistleblower provisions not only of the OSH Act but a host of other federal statutes, and the Obama administration has identified revamping the whistleblower program as a key priority for the agency.

Reform of both OSHA and MSHA is needed, Woolsey said, but she pointed out that even last year when Democrats controlled both chambers the mine safety bill only got past the House committee level. “The Senate wasn't going to take it any place.” She further conceded that it's a much tougher environment on Capitol Hill this time. “It's way different in terms of who's controlling … being in the majority makes a big, big difference in getting things done.”

A spokesman for the Republican majority on the House Education and the Workforce Committee declined comment on the bill but added that “our concerns with the legislation are well known and we hope to find common ground on policies that will improve” worker safety.

Provisions of last year's bill were rolled into legislation to reform the Mine Safety and Health Administration (MSHA) and that bill cleared the House labor committee but was never marked up in the Senate. Overall the reforms would hike OSHA's penalties, require abatement during contest, enhance the agency's whistleblower authority and increase victims' rights. Woolsey characterized this year's legislation as “virtually the same bill” but strengthened in a few places.

“Our goal is to bring OSHA and MSHA into the 21st century, and we learned so much over the last Congress with our hearings and our visits to mines and work sites,” Woolsey said. “It was so clear that we are so out of step with the 21st century and with other agencies that have penalties and guidelines and regulations … we think we should have nothing but the most stringent of guidelines and penalties.”

H.R. 190 among many provisions would increase civil and criminal penalties. A legislative summary from Woolsey's office states that H.R. 190 eliminates the $50,000 penalty for fatalities associated with the “other than serious” category of violations -- the lowest gravity violation under the act. There was a drafting error in an earlier version, and by definition “other than serious violations” are low gravity and not linked to fatalities, the summary states. It also eliminates the $50,000 penalty for fatalities associated with failure to abate; failure to abate violations are assessed on a daily basis for each day the violation continues, and at a rate of $12,000 per day, the $50,000 could inadvertently serve as a ceiling after only five days of violations.

H.R. 190 changes the mental state requirements for a criminal case from “willful” to “knowing;” in the previous version in the last Congress, a person could not be convicted under the criminal law unless he or she had acted “willfully” in violating OSHA’s standard, Woolsey's office said. The knowing standard requires someone to know that there was a violation (someone was put in harm's way), and the employer/responsible individual knew of that and had the ability to prevent the harm and they failed to act. Under this standard, employers cannot escape liability by claiming they did not know what the law required, Woolsey's office said.

The newly filed bill changes the definition of employer (who could be subject to criminal penalties) from “any responsible corporate officer” to an “officer or director.” Under current law, only a corporation or sole proprietor can be liable for criminal penalties. The introduced PAWA attempts to broaden this definition so high-level officials (individuals) who act criminally can be prosecuted. The change to “officer or director” clarifies that the criminal penalties can reach up to the higher levels of a company, providing that an officer or director has engaged in criminal conduct that causes the death or serious injury of a worker, the congresswoman's office said.

One measure that Democrats have included in this year's version of the bill is designed to help ensure state plan compliance with federal OSHA standards,Woolsey said. Title IV of the legislation adds provisions dealing with the evaluation of state plans and whether they are “at least as effective as” federal OSHA in standards and enforcement, which is the standard required by federal law. Federal OSHA recently undertook comprehensive audits of the state plans, some of which identified deficiencies.

“We added an effective mechanism for dealing with under-performing state plans,” which holds the state plans accountable, Woolsey said. The provisions were added, she said, because “state plans are intended to fulfill OSHA requirements or exceed those requirements.”

Other OSHA-related reforms, such as more stringent recordkeeping requirements, are filed in the House but have not been included in PAWA.Rep. Gene Green (D-TX) filed a bill that calls for controlling employers to report incidents at multi-employer work sites, an issue that has been ongoing for several years and the subject of litigation. The bill states that not later than 180 days after the date of enactment of the act, the Labor secretary shall revise regulations, concerning the recording and reporting of occupational injuries and illnesses under the OSH Act, to require site-controlling employers to keep a site log for all recordable injuries and illnesses occurring among all employees on the particular site, whether such employees are employed directly by the site-controlling employer or are employed by contractors or temporary help or employee leasing services. Green is also a cosponsor of PAWA. Woolsey said the multi-employer work site issue has been a concern but it's “not at the moment” one of the priorities contained in PAWA.

Woolsey said she hopes to make PAWA measures a bipartisan effort and that it would make a big difference if Republican members of the committee heard from their constituents. “Now is the time to act; we should not be waiting around,” she said. “We wrote this good legislation. Where there's a will there's a way.”

-- Christopher Cole (ccole@iwpnews.com)