PAWA poised to give health and safety act biggest overhaul ever

For the first time since it was created more than four decades ago, the legislation protecting America' workers is about to get a new set of teeth.

The Protecting America's Workers Act (PAWA), currently before Congress' Subcommittee on Workforce Protections, represents the single biggest expansion of workers' rights since the 1970 establishment of the Occupational Safety and Health Act, which has only seen minor amendments in the intervening years. Dr. David Michaels, Assistant Secretary of Labor for the U.S. Occupational Safety and Health Administration (OSHA), spoke before the subcommittee last month in strong support of the passing of the proposed bill, HR 2067.

"The workplaces of 2010 are not those of 1970," he said during his March 16 address, underscoring the urgency of updating the legislation. "The law must change as our workplaces have."

The proposed bill's many changes to the original act include significantly increased civil penalties and prison sentences for violators, more protection for whistleblowers and coverage for government employees currently without protection. The reforms proposed within PAWA would throw a lot of old conventions out the window and significantly transform the existing regulatory framework. And, as Michaels cautioned, employers will have to adapt.

"Because OSHA can visit only a limited number of workplaces each year we need a stronger OSH Act to leverage our resources to encourage compliance by employers," he said. "We need to make employers who ignore real hazards to their workers' safety and health think again."

PAWA's many changes to the Occupational Health and Safety Act include the following:

More protection for whistleblowers: If an employee has a reasonable apprehension that performing a duty may result in injury or a serious impairment of the health of an employee, PAWA will ensure they are not discriminated against and will face no consequences, if their concerns are deemed warranted.

Expanded coverage: If enacted, PAWA would extend coverage to more than 10 million local, state and federal government employees not currently covered by the Occupational Health and Safety Act.

Criminal conduct: PAWA would make it easier for employers to be criminally charged in the event of a violation. Some of the provisions include the following:

  • Whereas a misdemeanor represents the most severe criminal charge applicable to an employer, under PAWA, an employer could be charged with a felony offense.
  • Employers who can be charged would include "any responsible corporate officer."
  • Maximum prison sentences would expand from six months to 10 years for a first offense and from one year to 20 years for additional convictions.
  • The threshold of conduct required to trigger criminal liability would be lowered.
  • The burden of proof in a criminal case would be broadened from "willfully" to "knowingly", making it easier for employees to make a case.

Increased civil penalties: The current $70,000 maximum penalty for willful and repeated violations would nearly double to $120,000 under PAWA. Also, penalties for willful or repeated violations resulting in an employee's death would fall within a minimum of $50,000 and a maximum of $250,000.

All indications—including President Barack Obama's outspoken support for strengthened health and safety legislation—suggest the reforms proposed in PAWA will be implemented. It is incumbent on proactive employers to begin a review of how these changes will affect their current workplace safety and health management programs, a process rendered headache-free with Intelex's health and safety management software solutions.

For more information, find the act here or read Michaels' remarks to the Subcommittee on Workforce Protections here.

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