September 30, 1999

OSHA Consultation Agreements

Key materials
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Rulemaking:

Consultation Agreements: Proposed Changes to Consultation Procedures. (29 CFR Part 1908)

Stated Purpose:

". . . to provide for greater employee involvement in site visits; to require that employees be informed of the results of these visits; to provide for the confidential treatment of information concerning workplace consultation visits; and to update [OSHA's] procedures for conducting consultation visits."

Summary of RSP Comment:

OSHA's Consultation Agreement Program provides an opportunity for employers, particularly small businesses, to receive expert advice on potential occupational safety and health hazards through a federally-funded state consultation service that is independent of federal and state enforcement activities. In 1998, the program generated visits to 25,000 worksites and the correction of 145,000 identified hazards, indicating that it offers employers an attractive alternative to discovering violations through compliance inspections and enforcement actions.

The 1998 "OSHA Compliance Assistance Authorization Act (CAAA)," codified this successful program and required that agreements "include provisions for participation of employees." In response to this general mandate, OSHA proposes to require 1) employee participation in the consultants' physical inspection and in opening and closing conferences; 2) the posting of a hazards list following the visit; and 3) making the consultant's report available for enforcement purposes. None of these proposed changes are expressly required by the CAAA, and each would make the consultation program less attractive to employers, and turn this voluntary program into another potential enforcement tool.

OSHA should recognize that these proposals will raise the risk of litigation and cause many small businesses to drop out of the program. It should examine the costs and benefits of alternative mechanisms to achieve the congressional goal of increased employee participation. It should also carefully consider the impact on employer participation in this voluntary program, and the resulting impact on employee safety and health, of changes that would link the results of this program to enforcement activities.