Indecent Proposal

Changes to OSHA's consultation program could mean trouble for entrepreneurs.
Magazine Contributor
3 min read

This story appears in the December 1999 issue of Business Start-Ups magazine. Subscribe »

After creating a measure of goodwill with entrepreneurs by offering free, confidential workplace consultations, OSHA is now planning changes to the program that are sure to anger entrepreneurs.

Under the present program, OSHA pays state government employees to audit the safety and health programs of employers who voluntarily request an audit--at no cost to business owners. Priority is given to companies with fewer than 250 employees on-site and fewer than 500 employees nationwide. Provided the employer makes all the corrections suggested by the consultant, the company gets a one-year exemption from OSHA inspections.

Currently, when the consultant finishes the inspection, he or she sends a report listing the problems that need correcting to the audited company's management. Typical issues might include assembly-line machines that are inadequately guarded or employees lacking the required protective equipment.

The consultant's report is confidential, and OSHA has no legal right to obtain it. However, if the consultant finds egregious workplace hazards and a recalcitrant company, he or she can forward the report to OSHA enforcement officials.

The proposed rule, published in July by OSHA, would change that situation: OSHA could obtain consultants' reports whenever it wanted. The agency asserts that the instances when it would demand a report would be "extremely rare" and would relate to cases in which an employer refused to correct serious hazards, made false statements or deliberately concealed workplace hazards.

Bill Weems, president of OSHCON, the association of state consultation programs, says establishing a legal right for OSHA to have access to the consultants' reports would destroy their credibility with its clients. "Confidentiality of our reports is one of the sacrosanct things in the program," says Weems, who is also the program director of Safe State, which conducts consultations in Alabama.

Furthermore, says Weems, in the 23 years Safe State has been operating, the organization has only had to refer four companies--out of 14,000 that have been audited--to OSHA because the companies refused to correct serious workplace dangers. Weems cites those statistics to emphasize that states already refer "bad actors" to OSHA, and that there are precious few bad actors--hence the change in law is unnecessary.

Some consultants are also concerned about a proposed change that would require employers to post in the workplace a synopsis of the consultant's final report, including a schedule for fixing the problems. While some companies do that now and others allow employees to sit in on the initial and final meetings with the consultant, there is no legal requirement that a company internally publicize the consultant's findings.

Requiring companies to post these synopses could lead to problems for some companies--those with disgruntled employees or those in the midst of union-organizing drives. In either case, an employee could copy the list and send it to the OSHA enforcement office, which could schedule an inspection as a result, even if the company had every intention of fixing the problems.

The significance of these proposed changes is magnified by congressional legislation--pushed by Republicans and opposed by Democrats--to allow private companies to do these audits. Many more companies could then have these consultations. But the GOP wants to give companies that make the necessary workplace improvements a one-year exemption from civil penalties. President Clinton opposes the free pass on fines.

Stephen Barlas is a business reporter who covers the Washington beat for 15 magazines.

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