The new, aggressive stance of the Occupational Safety and Health Administration (OSHA) would get an added boost if Congress passes a key piece of pending legislation.
Shortly before his death last year, Sen. Edward Kennedy, D-Mass., reintroduced the Protecting America's Workers Act (PAWA), a bill he had unsuccessfully sponsored in previous sessions. A few months earlier, Rep. Lynn Woolsey, D-Calif., had introduced a companion bill in the House. The proposed legislation would give Labor Secretary Hilda Solis more ammunition to back up her promise to the AFL-CIO that "the DOL will once again be back in the enforcement business." (See "OSHA's Offensive.")
With Congress preoccupied in 2009 with health care reform, both bills are still in committee. But if Congress completes action on health care early in the year as expected, and with support from President Obama, who as a Senator co-sponsored PAWA in 2007, the bill may move forward this year.
PAWA is a wide-ranging bill that strengthens whistleblower protections, requires OSHA to investigate all cases of death and serious injuries, and prohibits policies or practices that discourage employees from reporting work-related injuries or illnesses or that provide for adverse action against employees who do report them. In its current form, the bill also extends coverage to public sector employees, although Woolsey reportedly is thinking of removing that provision.
But the most important changes to the Occupational Safety and Health Act of 1970, which has not been significantly altered in 40 years, would give OSHA more clout by greatly increasing potential penalties. It would subject corporate officers as well as other responsible people to possible felony charges for willful violations of OSHA rules that result in an employee death--criminal charges in such cases are now limited to misdemeanors.
The maximum prison sentence for a willful violation resulting in the death of an employee would increase under the bill to 10 years from the current six months for the first offense, and to 20 years from one year for repeat convictions.
Willful violations that result in serious bodily injury could also be prosecuted as felonies, with imprisonment of up to five years for a first offense and up to 10 years for subsequent convictions. The maximum prison term for knowingly making a false statement, representation or certification to OSHA would be increased to two years from six months.
Civil penalties also would increase under PAWA, with serious violation maximum fines rising to $12,000 from $7,000 and willful violation fines going to a maximum of $120,000 from $70,000.
The provisions for felony charges will probably be the most contentious in the entire bill, according to Edwin Foulke, a partner at Fisher & Phillips who headed OSHA during the second Bush administration.
"Changing from misdemeanor charges to felonies would have the most opposition from the business community," Foulke says.