OSHA White Paper Makes Case for Prevention Programs but Not for Regulation

By Marc Freedman – Jan. 17, 2012 (originally posted at FreeEnterprise.com)

On January 10, OSHA inaugurated the New Year by issuing a white paper extolling the virtues of Injury and Illness Prevention Programs (also known as IIPPs, I2P2, or just safety and health programs). The paper discusses the key components OSHA has found in common with effective programs and makes the case that implementation of these programs has resulted in significant, and even dramatic, reductions in work related injuries, illnesses, and fatalities. What the white paper fails to do is make the case for a regulation from OSHA mandating these programs which we know is OSHA’s top regulatory priority.

We agree with OSHA that safety and health programs have shown significant benefits for the employers who have implemented them. Notwithstanding OSHA’s analysis that these programs share certain common elements, how these employers implemented these elements is unique to each employer and their workplaces. Such flexibility and individuality is anathema to a regulation mandating these programs. By definition, a regulation entails enforcement. Were OSHA to complete a regulation mandating these programs, they would instantaneously change from being a good idea to being required by law. At that moment, the threshold question is no longer, “How best to implement a safety and health program to improve my workplace’s safety?,” but, “What do I have to do to satisfy OSHA’s inspectors and how will they view my version of these components?” All those who believe OSHA inspectors have the best handle on improving workplace safety in the myriad different types of workplaces covered by the agency, raise your hand.

Employers should be duly skeptical about the enforcement possibilities that such a regulation would trigger. At a minimum, this approach would subject employers to second guessing by an OSHA inspector as to whether they had satisfied the elements of a program as spelled out by OSHA. At a maximum, this could mean that employers would be subject to “double dipping” where OSHA would issue two citations for one hazard–one for the hazard, and one for the faulty safety and health program that failed to flag it.

And let’s not forget the likelihood that OSHA’s mantra of requiring employers under these programs to “find and fix” all hazards would mean that employers would be responsible for “finding and fixing” all ergonomic related hazards. Pity the poor employer whose employee doesn’t sleep well and wakes up with back pain the day the OSHA inspector visits.

That OSHA is determined to move forward with the I2P2 regulation was made clear just days after the release of the white paper when the agency announced it plans to convene the small business review panel of its proposal for a regulation sometime before March 6. Merely claiming that these programs are good ideas is not enough to support this rulemaking.

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