Members of the House Education and the Workforce Oversight and Investigations Subcommittee quizzed the Labor Department Wednesday on the fairness of policymaking at OSHA. Some members have become increasingly concerned about how OSHA formed its policies on the inspection of home offices and the agency's activities to gather public input on its ergonomics rule.
While Labor Secretary Alexis Herman withdrew the opinion letter that suggested OSHA could investigate home offices in January, employers still complained of ambiguity. "Clearly, if the Secretary of Labor did not know the consequences of OSHA's policy shift, how could millions of American employers and employees?" asked Oversight and Investigations Subcommittee Chairman Peter Hoekstra, R-Mich.
Employment attorney Arthur Sapper testified that OSHA receives too much deference in federal courts, which discourages it from making clear rules. He urged Congress to clarify that it did not intend to give OSHA such deference and instead suggested that deference be given to the employer.
"OSHA should not be resolving major policy issues via an opinion letter. There should be rulemaking," he said. Acting Labor Deputy Secretary Edward Montgomery defended the agency, saying that the courts give deference to OSHA but also look at legislative history. He said the agency has learned from its mistakes and has instituted internal procedures to make senior officials more aware of outgoing letters. Hoekstra, along with Oversight and Investigations Subcommittee ranking member Tim Roemer, D-Ind., introduced legislation last week that would require OSHA to go through formal rulemaking procedures to clarify its position on the work at home issue.
However, OSHA's rulemaking procedures do not always seem to satisfy business concerns. Willis Goldsmith, representing the Chamber of Commerce, told the subcommittee that the way OSHA's hearings on the ergonomics rule are being conducted "is a sham . . . It's not designed to give the public meaningful input, but to get the process over with." The rule, which could potentially cost employers millions to install equipment that would prevent or correct repetitive motion injuries, is vehemently opposed by many in the high-tech and general business communities, who have also complained that the comment period is inadequate.
However, Montgomery said that there have been years of dialogue on the ergonomics rule and several weeks of hearings scheduled recently. He also noted that despite complaints that recent hearings have denied participation because they have not been held south of Washington, D.C., one in five people who have asked to testify at the hearings "have southern addresses."
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