The U.S. Chamber of Commerce, the National Association of Manufacturers, the Food Marketing Institute, the American Trucking Associations and others won a court stay in February to halt implementation of OSHA's "cooperative compliance program." The complainants meet in court Dec. 3 to decide the ultimate fate of that program.
Meanwhile, OSHA has instituted an "interim plan for inspection targeting" that focuses on employers in 99 industries with illness and injury rates above the national average. "They are going to be inspected, whatever," says an OSHA information specialist who agreed to be interviewed but wouldn't let his name be used. "In other words, there's no partnership agreement with them."
"Partnership agreements" were key to OSHA's CCP proposal last December to 12,000 companies it identified as having injury and illness rates twice the national average. The agency told those firms that if they signed agreements to institute comprehensive safety and worksite hazard prevention programs, they could reduce their chances of inspection from 100 percent to 30 percent, or as low as 10 percent for small businesses. Eighty-seven percent of the original 12,000 firms signed up.
The Chamber and other groups protested that there was nothing cooperative about the CCP. "OSHA should work cooperatively with business and not force them to comply with costly standards that have not been validated," says Sussan Mahallati, labor counsel at the National Chamber Litigation Center in Washington, D.C.
Mahallati says the CCP should have been subjected to public notice-and-comment procedures to which all federal agencies must submit when proposing new rules. The Chamber argues that the CCP imposes safety rules-especially on ergonomics standards which OSHA has fought long and unsuccessfully to impose-not already codified in regulation or law.
The OSHA spokesman declines to elaborate on Chamber challenges to the CCP, except to say the agency does not believe the program is coercive and that, "We're pretty confident we're going to win that suit."
He adds that updated site-specific injury and illness data helped identify the 3,300 employers being targeted with the one-year interim program started April 10. That takes the place of the CCP while the Chamber's court challenge is being heard. But "as soon as the court clears the cooperative compliance program, we'd go back to that."
But Eugene Scalia, an attorney for the Chamber at Gibson, Dunn & Crutcher, LLP in Washington, D.C., says, "They can't have it both ways." Many of the companies targeted under the OSHA programs reported injuries and illnesses that did not constitute violations of agency standards, meaning a higher level of reported incidents doesn't necessarily mean a higher level of OSHA violations.