Kevin Kiley Leads House Education & Workforce Committee Hearing On ‘OSHA Overreach’

3 months ago

On Wednesday, the House Education and the Workforce Committee held a hearing on "Safeguarding Workers and Employers from OSHA Overreach and Skewed Priorities."

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Transcript

00:00:00is present. Without objection, the chair is authorized to call a recess at any time.

00:00:06During the current administration, OSHA quickly established a reputation for pushing a regulatory

00:00:12agenda that is at odds with the interests of small businesses, workers, and the overall health

00:00:17of the American economy. For instance, as the nation and the private sector were healing from

00:00:22the COVID-19 pandemic, OSHA proposed a vast, sweeping, and illegal COVID-19 vaccine mandate.

00:00:30Despite a sharp rebuke from the Supreme Court, OSHA has refused to change its ways.

00:00:37The purpose of today's hearing is to encourage a more thoughtful and balanced approach to rulemaking,

00:00:42one marked by fact-finding, evidence, and humility, rather than overreach and ideology.

00:00:48On the one hand, we see a problem with overreach, like the walk-around rule and the emergency

00:00:52response proposed standard. While the country faces a shortage of firefighters and EMS workers,

00:00:58this one-size-fits-all proposed rule mandates massive administrative burdens and costs

00:01:03that will worsen existing challenges in recruiting and retaining emergency responders.

00:01:08The walk-around rule allows third parties to accompany OSHA inspectors on workplace safety

00:01:13inspection tours. Workplace safety inspections should never become a pretext for some other

00:01:19agenda, regardless of whether you support or oppose that agenda. The proposed rule cheapens

00:01:23the protections that exist in current law, and American workers will suffer as a result.

00:01:29Yet even as OSHA produces many regulations that go beyond its mandate and do more harm than good,

00:01:34it has failed to actually carry out its mission and produce rules where needed.

00:01:38For instance, we see an absence of rulemaking when it comes to the tree care industry,

00:01:43despite the industry long asking for a standard. The tree care industry remains one of the most

00:01:49hazardous industries in the nation as a result of this negligence. OSHA must act to protect tree

00:01:55care workers and provide regulatory consistency. This is all happening, of course, under the

00:02:01longest-serving acting Secretary of Labor in U.S. history. Despite failing to garner the votes needed

00:02:08to be confirmed to be Secretary of Labor, Julie Hsu continues to unlawfully serve in that role.

00:02:15Hsu has been serving in her position unconfirmed for an astounding 499 days, far surpassing any

00:02:23other unconfirmed Secretary. Americans deserve a confirmed United States Secretary of Labor,

00:02:30not one who the Senate has rejected on a bipartisan basis. OSHA should acknowledge

00:02:37and implement feedback from workers and job creators when writing its regulations

00:02:42to ensure its policies are workable in the real world. Any regulation handed down by a

00:02:47federal agency should be narrowly focused, and compliance should be realistic. Overburdensome

00:02:52regulations hurt the workers they're meant to protect. Today, we'll hear from industry experts

00:02:58who will be able to speak about some of OSHA's other regulations and how they're affecting them.

00:03:03With that, I look forward to the insights of our witnesses today in this subcommittee hearing,

00:03:08and I yield to the ranking member for an opening statement.

00:03:11Thank you, Mr. Chairman, and thank you to our witnesses for your testimony today. Welcome.

00:03:17This hearing is particularly timely, as next week is the 20th anniversary of the passing of the

00:03:23Ascension Valdiviva, who died in his son's car on the way to a hospital after he collapsed in

00:03:34the field during a 10-hour shift of grape picking in a triple-digit heat. However, 20 years later,

00:03:40our constituents still lack the basic common-sense protections that would keep them from safe heat

00:03:47stress and extreme temperatures. In North Carolina, the family of Wednesday Johnson continues to mourn

00:03:54the loss of their mother, sister, and aunt. Ms. Johnson served her community for 20 years as a

00:04:00postal worker, yet lost her life shortly after hours of working in an un-air-conditioned

00:04:06postal truck in 90-degree weather. We're not talking about being uncomfortable on a hot day.

00:04:13We're talking about excessive heat combined with heavy clothing and high humidity that can

00:04:19incapacitate our bodies' natural cooling mechanisms and lead to injury, organ failure,

00:04:25and death. And this problem is only getting worse. In fact, this past Sunday was the hottest day

00:04:31ever recorded on earth. Thankfully, after years of advocacy, the Occupational Safety and Health

00:04:38Administration, OSHA, under the leadership of President Biden and Vice President Harris, has

00:04:43proposed common-sense measures that employers can take to prevent these tragedies. Contrary to my

00:04:50colleagues' ratings or rantings about skewed priorities, OSHA absolutely is pursuing the

00:04:57priorities that will benefit American workers and their employers. Research shows that prevention

00:05:04pays. For example, OSHA's cotton dust rule saved lives and reduced the rates of brown lung.

00:05:12The textile industry argued at the time that the rule would bankrupt them, but instead it

00:05:19incentivized employers to discover more efficient ways of doing business. In fact,

00:05:25there's much more work that OSHA should be doing to protect workers. In this testimony,

00:05:30Mr. Gerschenberger highlights the need for a tree care standard, and I do agree that such a standard

00:05:37is necessary. But what I do not understand is how cutting OSHA's budget will do anything to expedite

00:05:44that process. Year after year, House Republicans work to cut OSHA's budget and reduce its

00:05:50regulatory capacity and then have the nerve to complain that the agency isn't effective.

00:05:56Well, the challenge is not that OSHA's priorities are skewed, but rather it has been that Congress's

00:06:02failure to adequately support an agency whose sole mission is to keep workers safe on the job.

00:06:10And as we speak, House Republican appropriators are advocating to slash OSHA's budget by roughly

00:06:1812 percent. I've met countless constituents with horrifying stories about heat illness in the

00:06:24workplace and employers who won't even provide them with cool water. To slash OSHA's budget

00:06:31and to attack the proposed heat standard is to say that the health and the lives of my constituents

00:06:38do not matter. The reality is this Congress, House Republicans have abandoned their commitment

00:06:45to workers as evidenced by their proposed agenda, Project 2025. If my Republican colleagues had

00:06:52their way and enacted Project 2025, businesses would get a pass for any nonwillful violation if

00:07:00it was the first time they were caught. And that would mean that an employer could commit any

00:07:05number of OSHA violations, even a serious violation in which a worker is killed and no one

00:07:11would be held accountable. Aside from the pain and the suffering caused by not adequately protecting

00:07:18workers, the economy suffers as well when we do not take a proactive approach to addressing hazardous

00:07:26workplaces. As our witness, Mr. Barb, mentions in his testimony, a 2020 report found that the loss

00:07:33of labor because of heat exposure cost the economy about $100 billion, a figure projected

00:07:40to grow to $500 billion annually by 2050. Workers should not have to risk their lives and safety

00:07:49to provide for themselves and their families. Committee Democrats are committed to ensuring

00:07:54that OSHA has the resources and the capacity to ensure workers come home safely at the end

00:08:01of the day. And that's why I introduced with Ranking Member Scott the Protecting Children Act

00:08:07to address abusive child labor by providing OSHA with the resources to deter violations and prevent

00:08:14harm to children from intensive work in dangerous jobs. And it's why I co-sponsored the

00:08:23Valdez Heat Illness Injury and Fatality Prevention Act to ensure swift action on an OSHA standard.

00:08:31That will provide workers the support from heat stress. And why I support Representative Courtney's

00:08:38and Ranking Member Scott's Protecting America's Working Act, which provides OSHA with the tools

00:08:44to enforce worker safety and to hold employers accountable. Ultimately, if committee Republicans

00:08:50continue to turn a blind eye to employer workplace violations, then workers will keep sustaining

00:08:56serious work-related injuries or, worse, face a preventable death. With that, I look forward to a

00:09:04productive discussion today. And, Mr. Chairman, I yield back. Thank you.

00:09:07Mr. Zients. Pursuant to Committee Rule 8C, all committee members who wish to insert

00:09:12written statements into the record may do so by submitting them to the committee clerk

00:09:15electronically in Microsoft Word format by 5 p.m. after 14 days from the date of this hearing,

00:09:20which is August 7, 2024. And without objection, the hearing record will remain open for 14 days

00:09:26after the date of this hearing to allow such statements and other extraneous material referenced

00:09:30during the hearing to be submitted for the official hearing record. I note for the subcommittee that

00:09:34some of my colleagues who are not permanent members of this subcommittee may be waving

00:09:38on for the purpose of today's hearing. I'll now turn to the introduction of our

00:09:42distinguished witnesses. Our first witness today is Chief Tim Bradley, who is the Director of the

00:09:48North Carolina National Volunteer Fire Council, which is located in Medina, North Carolina.

00:09:53Our second witness is Ms. Felicia Watson, who is Senior Counsel at Littler Mendelson in Washington,

00:09:59D.C. Our third witness is Mr. Jordan Burub, who is a former Deputy Assistant Secretary of OSHA

00:10:06and is in Tacoma Park, Maryland. And our final witness is Mr. Peter Gerstenberger, who is the

00:10:11Senior Vice President for Industry Support of the Tree Care Industry Association, located in

00:10:16Manchester, New Hampshire. We thank the witnesses for being here today and look forward to your

00:10:20testimony. Pursuant to committee rules, I would ask that you each limit your oral presentation

00:10:25to a five-minute summary of your written statement. I would like to remind the witnesses to be aware

00:10:30of their responsibility to provide accurate information to the subcommittee. I will first

00:10:35recognize Chief Bradley. Good morning, Chairman Cawley, Ranking Member Adams, and distinguished

00:10:43members of the subcommittee. My name is Tim Bradley, and I'm a firefighter with 50 years

00:10:47of experience and Director of the National Volunteer Fire Council. I'm also Deputy Chief

00:10:52of the Medburn Fire Department and Executive Director of the North Carolina State Firefighters

00:10:56Association. The NVSC, National Volunteer Fire Council, is a leading non-profit membership

00:11:02association representing the interests of volunteer fire, EMS, and rescue services.

00:11:07We serve as the national voice for over 676,000 volunteer firefighters, which comprise 65 percent

00:11:14of the nation's fire service. The National Volunteer Fire Council appreciates OSHA's

00:11:19efforts to promote our mutual goal of ensuring firefighter safety in this proposed emergency

00:11:23response standard. However, if adopted as written, this standard would be economically infeasible for

00:11:29volunteer fire departments to comply with and could cause some of those fire departments to

00:11:34close down, therefore compromising the emergency response capabilities of many small communities,

00:11:39particularly those in rural areas. In addition to its economic infeasibility,

00:11:44this proposed standard would be problematic due to the incorporation by reference of industry

00:11:49standards, uncertainty about volunteers' coverage, lack of personal expertise and

00:11:54availability to facilitate implementation, and an unrealistic proposed timeline for implementation.

00:12:01For these reasons, the National Volunteer Fire Council believes OSHA should exempt volunteer

00:12:05firefighters from this proposed standard as written. The National Volunteer Fire Council

00:12:10is concerned that OSHA is unaware of the varied ways volunteer fire departments are organized

00:12:14and therefore unaware of the extent their proposed standard would impact the volunteer

00:12:20fire service, especially when it comes to how volunteer fire departments are organized as

00:12:24non-profit organizations and unaffiliated with any municipality, meaning they could fall within

00:12:31scope of this proposed standard regardless of the state that they are in. Due to the diverse

00:12:36nature of volunteer fire service, the NVFC believes it should not fall within the scope

00:12:40of OSHA's proposed rules. When it comes to evaluating the economic feasibility of OSHA's

00:12:46proposed standard, it is important to realize that 95 percent of volunteer firefighters serve

00:12:51a community of less than 25,000 and 50 percent serve populations of fewer than 2,500. National

00:12:59needs assessments for the nation's fire service consistently show that volunteer fire departments

00:13:04in small and rural communities have the most difficulty affording up-to-date equipment.

00:13:11In an NVFC departmental budget survey with 2,444 responses, 29 percent said their department's

00:13:18budget is less than $75,000. Departments with this budget struggle to pay for fuel, supplies,

00:13:23gear, and equipment, with the average cost of equipping a single firefighter with bunker gear

00:13:29at $4,600. OSHA estimates the average cost of their proposed standard to be approximately $14,000

00:13:38per volunteer fire department. The NVFC believes this estimate is low and it would be much greater.

00:13:45It is economically infeasible to have small departments adhere to the same standard as

00:13:50large departments like New York City. The main source of federal support to support

00:13:55these local fire department funding is assistance firefighter grants, AFG, and staffing for adequate

00:14:00fire and emergency response, SAFER. Though AFG and SAFER grants have been very successful, there is

00:14:05not enough funding available to address the needs of the fire service, especially as this if there

00:14:10is an added economic burden of OSHA's standard. Contributing to this economic infeasibility are

00:14:17numerous prohibitive requirements that are contained within the proposed emergency response

00:14:21standard, including the incorporation by reference of over 20 national fire protection associations,

00:14:28NFPA, and American National Standards Institute, ANSI, industry consensus standards.

00:14:34The incorporation of these standards by reference would pose several issues,

00:14:38one being that these standards are not updated on a three to five year cycle like NFPA standards are.

00:14:44Another issue is the lack of access to these standards. NFPA standards are available online

00:14:50to review, but printing copies must be purchased. This limited access to these NFPA standards is

00:14:57problematic since many volunteer fire departments in rural areas lack reliable internet services.

00:15:02Additionally, some of the education requirements in these standards incorporated by reference are

00:15:07not available in states. For example, Fire Officer 3 reference in NFPA 1021 is only available in 20

00:15:13states. The NVSC thanks the subcommittee for holding this important hearing and for the

00:15:18opportunity to testify on the need for the volunteer fire service to be exempt from OSHA's

00:15:23proposed emergency response standard as written. We also thank Chairwoman Fox and Chairman Kiley

00:15:29for their leadership on this issue. Thank you very much. I'll next recognize Ms. Watson.

00:15:37Thank you, Chairman Kiley, Ranking Member Adams, members of the subcommittee. Good morning and

00:15:42thank you for the opportunity to appear before you today. My name is Felicia Watson. I'm a senior

00:15:47counsel in the law firm Littler Mendelsohn. My testimony this morning is solely on behalf of

00:15:52myself and not my firm or any of its clients. I'm here today because we all have a common goal,

00:15:58increase employer and employee compliance with the Occupational Safety and Health Act.

00:16:03This includes safeguarding the ability of employers and employees to work and thrive

00:16:07in their chosen professions and ensuring employers are able to protect their workers while at the

00:16:12same time ensuring employees are able to work in places that are safe and free from recognized

00:16:18hazards. I have three considerations for this subcommittee related to OSHA's rulemaking efforts

00:16:22on heat. First, the rulemaking process has become perfunctory even though the agency has been

00:16:28formally engaged on a proposed heat standard since 2021. OSHA first published an advance notice of

00:16:35proposed rulemaking in that year, convened a small business advocacy review, held meetings

00:16:40with small entity representatives, held meetings with the Advisory Committee on Construction Safety

00:16:45and Health and other groups to discuss its proposal. Although at the time no one had seen

00:16:51what the actual proposal was, they'd had these meetings to discuss. Then on June 11th of this year,

00:16:57the proposed rule went to OIRA. OIRA had the 1,175-page proposed rule for approximately

00:17:0614 business days before sending it back to OSHA on July 1st. My concern over the speed with which

00:17:14OIRA cleared the proposed rule is whether the agency, OIRA, was able to effectively meet its

00:17:21oversight obligations in 14 days. I repeat, 1,175 pages. It's still not in the Federal Register.

00:17:31Given that the proposed standard will affect more than 36 million businesses at least,

00:17:36the administration has missed an opportunity to collect vital input from stakeholders

00:17:40before making the proposed regulation public. OSHA has also missed or ignored an opportunity

00:17:46to develop industry-specific standards that would help it more effectively meet its goals.

00:17:51Numerous effective businesses ask for industry-specific standards that can be used to

00:17:57better comply, but this did not happen. Second, OSHA's approach will in effect force employers

00:18:03into the role of parents who have to treat employees like children that need someone to

00:18:08take care of them. Employers and employees both have duties under the OSHA Act, unlike

00:18:14other safety standards such as fall protection, which have a direct correlation if an employee

00:18:19is not given proper equipment to prevent falls, heat-related illnesses and injuries are not always

00:18:24straightforward or obvious. This is a nuanced issue that is more complicated than it first appears,

00:18:31with myriad factors that can affect how someone may respond to heat. Certain signs and symptoms

00:18:36of heat-related illness can be the same for other illnesses such as the flu or COVID-19.

00:18:42Personal risk factors also come into the analysis here. Underlying health issues,

00:18:47personal behaviors, when away from the job site, all of these can impact it. Yet the employer will

00:18:54be required to assume that while at work, any symptom is heat-related and if they do not respond

00:18:59quickly enough, they will face a citation and penalty unless and until it can be established

00:19:05it was not heat-related, but this is only after a citation is issued. The proposed rule contains

00:19:11a number of prescriptive requirements, but one notable one is proper hydration. When temperatures

00:19:17meet a certain heat triggers, employers will have to implement certain procedures, including telling

00:19:21their workers about the importance of drinking water. There's even a proposed amount of drinking

00:19:26water that employees should provide their employer per hour. Third, OSHA missed an opportunity to

00:19:31provide a pathway for employers to be able to clearly understand their obligations. A consistent

00:19:36theme among stakeholders to date was that one size does not fit all. Unfortunately, stakeholders

00:19:42were ignored. Instead, there is one all-encompassing rule applicable to employers regardless of industry

00:19:48type. Ultimately, OSHA has developed a prescriptive rule that despite the agency's assurances, to the

00:19:54contrary, allows little flexibility for employers. Working in hot conditions is not new. OSHA has

00:20:00failed to do a thorough analysis of the options available in order to push this standard through

00:20:04quickly. The cumulative effect of ever-changing requirements coupled with new regulations going

00:20:09into effect at least annually can have a huge impact on employers. The unrecognized administrative

00:20:15burden this creates should give pause to those responsible for writing laws and developing

00:20:20regulations. Thank you for the opportunity to appear before you today, discuss the agency's

00:20:25overreach, and the impacts the agency's actions have on the regulated community, large and small

00:20:30businesses, employers, and downstream consumers. Thank you.

00:20:34Thank you very much. I now recognize Mr. Burub.

00:20:37Thank you, Chairman Kiley and Dr. Adams. Thank you for inviting me to testify,

00:20:42although I want to start with suggesting that the title of the hearing is an error. It would

00:20:47more accurately be Overcoming Obstacles to Saving Workers' Lives. When Gabriel Infante,

00:20:52a construction worker in San Antonio, Texas, started showing signs of heat stroke, his employer

00:20:57thought he was on drugs. By the time it was clear it was heat illness, it was too late. Gabriel

00:21:02died a few hours later. His body temperature was 109.8 degrees. He was 24 years old. If OSHA's

00:21:09heat standard had been in place, Gabriel Infante would likely be alive today. He would have had

00:21:14time to acclimatize. He would have been supplied with water, shade, and rest. And if he had gotten

00:21:18sick anyway, his employer and coworkers would immediately have recognized the signs of heat

00:21:22stroke and gotten him help. Gabriel Infante's story illustrates that OSHA standards save lives.

00:21:29Far fewer workers are dying today of asbestos-related disease or diseases caused by

00:21:33exposure to lead because of OSHA standards. OSHA standards have significantly reduced deaths in

00:21:38confined spaces and trenches. Work-related hepatitis B has been eliminated since issuance

00:21:42of OSHA's bloodborne pathogen standard, and I could go on and on. A few facts. First, there is

00:21:48no question that OSHA has the legal authority and mandate to issue safety and health standards

00:21:53to protect workers from hazards that pose a significant risk of harm. The very first line

00:21:58of the OSHA Act charges OSHA to assure safe and healthful working conditions for working men and

00:22:02women by authorizing enforcement of the standards developed under the Act. Second, the perennial

00:22:08accusation that OSHA standards threaten businesses or kill jobs is simply a myth. Third, OSHA's

00:22:14regulatory process takes far too long. The last two standards that OSHA issued,

00:22:20silica and beryllium, took almost 20 years. Why the delays? First, the complex standard-setting

00:22:26criteria set in the OSHA Act. Second, subsequent laws, court decisions, and executive orders.

00:22:32Third, OSHA's robust public input process. And fourth, OSHA's paltry budget. And finally,

00:22:39the failure of recent Republican administrations to issue any major regulatory protections.

00:22:44Protections delayed mean lives lost. 12,000 workers died from exposure to silica in the 19

00:22:49years it took for OSHA to issue the silica standard, and over 1,700 died of beryllium-related

00:22:54disease in the time it took OSHA to issue its beryllium standard. The General Duty Clause is

00:23:00no substitute for standards. It's too resource-intensive and generally used only reactively

00:23:04after a worker is killed or seriously injured. Let's take a look at OSHA's top regulatory

00:23:10priorities. Heat. 121 workers died from the effects of heat from 2017 to 2022, and 384 workers

00:23:19from environmental heat exposure over the last decade. Climate change is making it worse,

00:23:24and it's generally agreed that these numbers are significantly underestimated. The solutions laid

00:23:30out in OSHA's proposal are simple, flexible, inexpensive, desperately needed, and long overdue.

00:23:36Second, infectious diseases. COVID-19, Ebola, avian flu, tuberculosis, measles, MRSA are just

00:23:42a few of the infectious diseases that health care workers are not protected from because,

00:23:46aside from blood-borne pathogens, there is no infectious disease standard. The danger is obvious.

00:23:51Thousands of frontline health care workers died from COVID. Tree care, as Mr. Gersenberger will

00:23:58testify, too many workers are killed in tree care incidents, and a standard is needed. But budget

00:24:04shortages are slowing that process down. Workplace violence, assaults against health care workers,

00:24:09and social service workers have long been a serious problem, which OSHA has addressed through

00:24:14guidance and general duty clause, but a standard is clearly needed, so much so that this House has

00:24:19twice passed bipartisan legislation that would require OSHA to issue a standard much more quickly

00:24:24than the normal process. Emergency response. Emergency responders face deadly hazard,

00:24:30and the current OSHA standards are antiquated. The equipment described in OSHA's current standards

00:24:34would better fit in a Norman Rockwell painting than a 21st century firehouse.

00:24:39As Chief Bradley testified, there are legitimate concerns about the feasibility for volunteer fire

00:24:44departments. OSHA is listening to those concerns and will decide based on the evidence provided.

00:24:51Let me conclude with a few recommendations. First, Congress should examine more effective

00:24:57and far speedier standard-setting processes in California and Washington. Significantly

00:25:03increase OSHA's budget. Pass legislation to update antiquated standards for toxic substances and other

00:25:09hazards. And finally, exempt OSHA from some procedural requirements under the OSHA Act or

00:25:14the Administrative Procedure Act, or authorize OSHA to issue interim final standards where hazards

00:25:20need to be addressed expeditiously. OSHA standards save the lives and protect the health of this

00:25:24nation's workers. They are not overreach. OSHA protections are exactly what Congress ordered.

00:25:30I'd be happy to answer any questions.

00:25:34Thank you, and our final witness is Mr. Gerstenberger.

00:25:38Chairman Kiley, Ranking Member Adams, and distinguished members of the subcommittee,

00:25:42thank you for this opportunity to testify. I'm Peter Gerstenberger, the Senior Vice

00:25:46President of Industry Support for TCIA, an association with a central focus on worker safety.

00:25:53I'm here to advocate for a dedicated OSHA standard to protect the lives of tree care workers, and I

00:25:58will note I have testified before this subcommittee twice in the past on this very same topic.

00:26:04TCIA members do vital work and are members of some of the most safety conscious people in the world

00:26:10facing some of the greatest workplace hazards imaginable. We estimate about 200,000 workers

00:26:16in this profession and confirmed over 240 fatal incidents in tree care from 2020 through 2023,

00:26:24an average of 60 a year. It means that tree workers experience fatalities at an annual rate

00:26:29at least 10 times higher than BLS's all-industry average for private sector workers.

00:26:35To address these risks, we engage our members through a variety of safety programs

00:26:40the association has created, and we helped establish and actively participate in the ANSI

00:26:45Z133 committee, which develops the only consensus safety standard for tree care operations.

00:26:52We also consistently engage regulators to push for policy changes that can improve safety for

00:26:57workers in our industry. I was fortunate to have helped assemble and to serve on committees to

00:27:03create tree care specific rules in the state plan OSHAs of California, Virginia, and Maryland.

00:27:10TCIA is engaged right now in an alliance with North Carolina OSHA that promises to bring about

00:27:16fair and effective guidance for harvest in that state. We've collaborated with Federal OSHA in

00:27:21the past on regulations specific to our members work around power lines, as well as a variety of

00:27:27basic guidance documents detailing the hazards of tree work created under a formal alliance

00:27:33with Federal OSHA. While we appreciate these efforts, we're frustrated by Federal OSHA's

00:27:38continuous delays and missed deadlines in establishing a specific standard for our

00:27:42industry. The subcommittee requested OSHA consider doing so in August of 1998,

00:27:49after OSHA began applying standards intended for other industries to our members work.

00:27:54Over the next decade, OSHA continued this ineffective approach to regulating our industry,

00:27:59and in 2006, TCIA formally petitioned OSHA to promulgate a standard which has received

00:28:05consistent bipartisan bicameral support. While OSHA took initial steps with rulemaking shortly

00:28:12after our petition, it wasn't until 2020 that the agency made tangible progress by completing the

00:28:18required SBREFA panel. This process concluded with a strong recommendation for OSHA to move

00:28:24forward with a tree care standard and provided a clear path for how OSHA should develop a proposed

00:28:30rule. In the meantime, OSHA's Enforcement Directorate has attempted to regulate tree

00:28:35care through a series of memoranda and directives that ultimately failed to provide clear guidance

00:28:40to employers, to workers, and OSHA officers on the most effective safety measures for the industry.

00:28:47Since SBREFA, OSHA has postponed publication of a proposed tree care standard seven times since it

00:28:53first appeared in the regulatory agenda in 2020. During this same period, the Office of Information

00:29:01and Regulatory Affairs reviewed 10 other distinct OSHA regulations. This selective inaction sends

00:29:07a troubling message that the safety of our workers is not a priority. As OSHA continues

00:29:13to delay a standard, tree care work is becoming increasingly difficult and dangerous due to trees

00:29:19depilatated or killed by drought, disease, invasive insects like emerald ash borer, and wildfire.

00:29:27Therefore, the time to act on a tree care specific standard is now. An industry-specific standard

00:29:33will empower OSHA field enforcement to identify unique hazards, preventing accidents,

00:29:38and saving lives. Without this standard, the tree care industry remains vulnerable to avoidable

00:29:44hazards, undermining the critical work of these professionals. We'd like to thank Chairman

00:29:49Kiley and Ranking Member Adams for joining Senator Hickenlooper and Senator Braun to

00:29:54send a letter in April to OSHA urging the agency to promptly issue a proposed rule for tree care.

00:30:00We urge this subcommittee to ask OSHA, in the strongest possible terms,

00:30:05to move forward on this rulemaking. Thank you again for this opportunity.

00:30:10Thank you very much. Under Committee Rule 9, we will now question witnesses under the

00:30:14five-minute rule. I recognize first the gentleman from Wisconsin, Mr. Grothman.

00:30:20Mr. Barab, I'm going to start with you. As I understand it right now,

00:30:26OSHA will investigate the death of any employee, but there's an exemption

00:30:30for employers of three or less employees. Is that correct?

00:30:39There's a partial exemption for employers that I think between less than 10 employees if their

00:30:49average injury and illness rate is below the average for that industry. It's a rider in the

00:30:58appropriations bill. Okay. Is there any reason why you can think

00:31:04if an employee dies in a farm with only three employees, you shouldn't investigate that death?

00:31:11No, actually, yeah, in farms, it's any farm under 10 or under, yeah,

00:31:15OSHA is not allowed to set foot on. No, I think that's completely unjustified. Farming is one of

00:31:21the most dangerous occupations there is. Lots of workers are killed in farms, are injured,

00:31:26or would like to file complaints, but OSHA is prohibited from even setting foot,

00:31:29no matter how many people are killed on a small farm.

00:31:31Okay. Thank you. And now we'll go to Ms. Watson on the walk-around rule.

00:31:37The finalized walk-around rule does not include any requirement that the authorized person be

00:31:41equipped or conduct themselves in the same standards as an OSHA safety inspector because

00:31:48the rule has the potential of allowing anyone on the job site construction employers are faced

00:31:53with serious safety concerns. Why does OSHA not provide or mandate specific safety training for

00:32:00non-employee representatives to ensure they don't pose additional safety standards?

00:32:05I'm sorry, sir, I missed the first part of your question.

00:32:08Okay. The finalized walk-around rule does not include any requirement that the authorized

00:32:13person be equipped or conduct themselves to the same standards as an OSHA safety inspector

00:32:21because the rule has the potential of allowing anyone on the job site construction employers

00:32:26are faced with serious safety concerns. Why does OSHA not provide or mandate specific safety

00:32:33training for non-employee representatives? That's a wonderful question for the agency,

00:32:39and that's one of the concerns that a lot of employers I've heard from have expressed.

00:32:45The person that the compliance safety and health officer selects doesn't have to have any specific

00:32:51training to be on the job site. It's just if they will have good cause or lend something to the

00:32:57inspection, and so that is definitely a concern from the employers is how can they ensure this

00:33:02person's safety if they don't have any specialized training. Okay. By forcing employers to allow

00:33:07outside parties into their facilities, OSHA creates additional liability risk for employers.

00:33:13At the simplest level, a third-party representative may slip and fall while attending a walk-around.

00:33:18Some of the employer may face a costly lawsuit. How does OSHA intend to protect the interests of

00:33:23employers against the potential that third-party representatives are putting their business at risk?

00:33:30There are no provisions in the rule to address that. OSHA's focus when they come on a job site

00:33:36is to ensure that the employer is following the rules to ensure worker safety, employee safety.

00:33:42That would actually turn it on its head if there was something in the rule that required OSHA to

00:33:47ensure that employers are protected against liability. Okay. How can OSHA claim neutrality

00:33:53in collective bargaining disputes under the current rule? You think? How can they ensure

00:34:00neutrality of collective bargaining? Yeah. I don't think that they have a role in that. I think if a

00:34:07job site has an employee representative that's been designated an employee representative for

00:34:12the most part is a union representative. That's how it's been construed through the years, and

00:34:17that's how it's identified. But I don't think that OSHA has a place to get involved in that. That's

00:34:22not their role. Okay. An argument is made that third-party representatives would provide context

00:34:27and educate. An argument is made that third-party representatives would provide context and educate

00:34:35on complex workplace issues. However, why don't we just educate the CSHOs on these complex issues,

00:34:42keeping unauthorized third parties away from employers' private property?

00:34:49I think that that is something that should fall under OSHA, and OSHA should ensure that their

00:34:54compliance, safety, and health officers are well trained. I think the idea behind the walk-around

00:34:59rule initially and the provision in the OSHA Act was to allow someone with specialized experience.

00:35:05This walk-around rule has expanded that well beyond that and reduced the technical requirements for

00:35:10these third-party inspectors, so it does create a problem. Thank you. Thank you.

00:35:21Thank you. I now recognize the Ranking Member, Ms. Adams, for five minutes.

00:35:27Thank you, Mr. Chairman. The Project 2025 Roadmap for a New Trump Administration was

00:35:33developed by a team with more than 100 former Trump administration officials,

00:35:37which proposes to change the law so that employers will be exempt from any consequences

00:35:43for safety violations if they meet three conditions. First, if they are small businesses,

00:35:49then if the violation was not willful, and then if it is the first time that they have been caught.

00:35:55Mr. Bower, when you were the Deputy Assistant Secretary, how often did you speak with families

00:36:02who had lost loved ones to a death on the job, and in those conversations, did you ever hear

00:36:08one of those grieving family members tell you that they wanted to let the employer off the hook just

00:36:14because it was a small business? Thank you for the question, Dr. Adams. No, I never heard any

00:36:21worker complain about OSHA inspecting or citing their employer just because they were a small

00:36:26business. No employee should have to ever worry about coming home alive at the end of the day

00:36:31based on the size of the business he or she works for. Everyone should have the same rights and the

00:36:39same ability to be inspected by OSHA. If small employers, and I understand if small employers

00:36:45have more of a burden, they don't have the money perhaps to hire experts on staff or even to hire

00:36:51consultants. For that reason, though, OSHA has a very robust and fairly well-funded on-site

00:36:57consultation program that essentially gives small employers the opportunity to have an OSHA

00:37:02inspection free of the risk of citation. So essentially, small employers already can be

00:37:08exempted from their first inspection because they can call it themselves out of the consultation

00:37:13program. Thank you. The Project 2025 scheme would allow small businesses to be held accountable

00:37:20if an OSHA violation was willful, but doesn't that mean that they would still have a get-out

00:37:25jail-free card for serious violations? Yeah, that's basically what it means. I mean, if small

00:37:31employers were exempted, and a lot of businesses, there are a lot of small employers in this

00:37:34country, obviously. They do a lot of dangerous work and there are a lot of workers in small

00:37:38businesses that are injured, made ill, or killed, and there's no reason why they should be exempted

00:37:44from having the same protections that larger employers have. So do I understand correctly

00:37:49that a worker could die from a serious OSHA violation and this Project 2025 policy would

00:37:55allow the employer to get off scot-free? Yeah, no, there should be no

00:38:00reason for any employer to get off scot-free, and whether that's a small employer or as Mr.

00:38:05Grothman asked about farm employers, agricultural employers, every employer, and I should say every

00:38:12worker in this country, should have the right to a safe workplace. Unfortunately, you know, they're

00:38:17pushing for exemptions in small businesses. Agricultural workers on small farms are exempted.

00:38:22There are 8 million public employees in this country that are also exempted from OSHA coverage

00:38:26who should, again, have the same right to a safe workplace that every other worker has.

00:38:31So when you and Dr. Michaels ran OSHA, you rejected calls for heat standard. So do you

00:38:37still believe that protecting workers from heat stress should not be a priority for OSHA?

00:38:43I'm sorry, I missed the end of that question. When you and Dr. Michaels ran OSHA,

00:38:49you rejected calls for heat standard. Do you still believe that protecting workers from

00:38:55heat stress should not be a priority for OSHA? Yes, I mean, I think you're referring, we did,

00:39:02we were petitioned for a heat standard during our administration, and we rejected that petition.

00:39:07That was a very painful step. We always believe that heat should be a priority.

00:39:11Unfortunately, due to OSHA's funding, the, you know, our pipeline just is not very wide. We

00:39:16were working, you know, putting about 100%, 120% of our resources into finishing silica,

00:39:21beryllium, and a number of other standards. We just did not have the bandwidth at that point

00:39:26to handle heat. So we did, unfortunately, reject the petition. We did, however, issue a number of

00:39:32standards at the end of the administration, which following the previous, the Trump administration,

00:39:38OSHA did have the bandwidth then to tackle the heat problem.

00:39:41So some critics of OSHA proposed a rule argue that it's impossible to set a national standard

00:39:48because workers have varying levels of susceptibility to heat. So how would you respond to that?

00:39:55Well, you know, heat is, it's a fairly simple process to protect workers against heat,

00:40:01water, shade, rest. Every worker needs that. The OSHA Act actually requires the agency's

00:40:09standards to ensure that no worker suffers serious physical harm from hazards. So OSHA

00:40:17needs to, you know, protect all workers, no matter what their preexisting conditions are.

00:40:22And again, it's easy to do. Water, shade, rest, having an emergency response program,

00:40:26training, that can apply to every worker in every possible occupation.

00:40:31Thank you very much. And thank you very much. And Mr. Chairman, I yield back.

00:40:36I'll now recognize myself for five minutes. Chief Bradley, thank you for your presentation

00:40:41about the proposed emergency rule, which may be a well-intentioned rule. Of course, we want our

00:40:47first responders and firefighters to have the highest level of protection and preparedness.

00:40:52But as you explain in your testimony, it could very well have some severe unintended consequences

00:41:00in terms, for example, of the costs that it imposes on volunteer fire departments.

00:41:04And I think OSHA has put in a figure of like $14,000. But does that sound realistic to you

00:41:08as to what the actual costs of this will be? Thank you, Chairman Kyle. No, the $14,000 is

00:41:17won't even buy two airpacks. The average cost of purchasing turnout gear for a firefighter

00:41:23is $4,000. Many volunteer fire departments struggle when they bring on a new member to

00:41:28simply equip them with gear because of that cost. If you figure an estimated budget of $75,000,

00:41:36an airpack costs $9,000. You can see that $14,000 to replace the equipment some of these standards

00:41:41would require is excessive. Yeah, I think that there's just sort of a lack of understanding by

00:41:48those who drafted this rule about how volunteer firefighters really work. I mean, I have,

00:41:52you know, counties in my district that have a dozen different fire departments.

00:41:57Some of them are in areas that are hard to get to and, you know, are largely volunteer driven. And

00:42:02so these departments are carrying a heavy burden for their communities with very few resources.

00:42:08And they are really the first line of defense. I mean, if they're not able to address a situation

00:42:13immediately, it could grow into a much larger problem. And so if this rule goes forward,

00:42:18could you just help us understand what some of the trade-offs might be in terms of the

00:42:23consequences for these volunteer fire departments that are now going to be even more under-resourced?

00:42:30Thank you. First off, no one's tried harder to reduce firefighter injuries and firefighter

00:42:35deaths than the fire service itself. Many of these volunteer fire departments apply NFPA standards

00:42:40as they can. But if you consider that these local communities have to do their own fundraising for

00:42:47fire departments, sometimes firefighters have to buy their own gear. This added burden may very

00:42:53well close a volunteer fire department in a rural community. If they do that, then the community

00:42:58faces extended travel times from a neighboring area to get fire protection, increased insurance

00:43:04rates because insurance services offices rate areas for homeowners insurance and business

00:43:09insurance based on fire protection. So the unintended consequences of closing fire departments

00:43:15will be critical, especially in rural and suburban communities. Such an important point. This could

00:43:20well close volunteer fire departments and leave these areas unprotected. I hope that that message

00:43:25is heard by our friends at OSHA. Mr. Gerstenberger, you know, what do you think it's going to take for

00:43:31OSHA to finally do a tree care standard? As you mentioned, we've written a bipartisan letter

00:43:37urging them to do so, yet you said they've put it off, what, seven times or something like that,

00:43:41even during the current administration? What's it going to take? Why are they dragging their feet?

00:43:45I'm hopeful, Mr. Chairman, that it will take a strong word from this committee and or reviewing

00:43:52the proceedings of this hearing to prompt further action. I have to think at this point that

00:43:58proposed language is pretty much in place and could be released and we pursue the process from

00:44:06there. But quite frankly, I'm befuddled by why it's taken 25 years from the time we first raised

00:44:12the issue and 18 years from when we petitioned for it and why the proposed rule has been delayed

00:44:22in publication seven times in the past 39 months. I'm completely befuddled by that. It is befuddling

00:44:30and it's also tragic because you mentioned just over the last four years we've had 240 fatalities

00:44:35in the industry. That's 10 times higher than the average rate. Do you believe that some of those

00:44:41lives would have been saved if we had an adequate standard? Using a very rough estimate, Chairman,

00:44:49since we petitioned for the standard, we've lost probably in excess of 1,000 people in this

00:44:54industry. One loss is too many, obviously. Could an OSHA rule prevent all these? Absolutely not.

00:45:04That's just not realistic, but it could have prevented some. It could have prevented some.

00:45:07We would have saved lives with a standard. And we've heard some excuses today like the

00:45:14budget isn't there. Well, the budget has gone up significantly during this administration, hasn't

00:45:19it? And haven't there been, you said, 10 other actions that were taken by OSHA? Were they neglected

00:45:24to take action here? I don't have any particular insight as to the adequacy of OSHA's resources,

00:45:30its budget. My association faces budget constraints every year and I know that what we try to do

00:45:36with limited resources is to make sure we get the most bang for our buck.

00:45:40That's right. And I would take a data-driven approach to, you know, how OSHA can get the

00:45:45most bang for its buck. And I would say that producing a standard for a relatively small

00:45:51industry with an incredibly high fatality rate would be a good way of affecting its mission.

00:45:58Thank you very much. I hope that message is heard loud and clear by OSHA. Let's get this done.

00:46:02It will save lives. I now recognize the representative from California, Mr. Takano.

00:46:08Well, thank you, Mr. Chairman, and thank you to the witnesses for being here today.

00:46:12Anyone who lives in Washington, D.C. during the past month is well aware of what experts are

00:46:17telling us, that this is the hottest summer ever recorded. I was thankful last week to be in

00:46:24Santa Fe and Colorado Springs where it was drier and cooler. But according to the National

00:46:32Oceanic and Atmospheric Administration in 2023 was the hottest year on record worldwide. And

00:46:412024 is projected to be even hotter. In my district in Southern California, we had three

00:46:48wildfires this week alone. And my heart goes out to all of the citizens of my district. And

00:46:56I give praise to the firefighters, the brave firefighters who were involved in controlling

00:47:02those fires. So extreme heat and increasing temperatures are our new collective reality.

00:47:10But for those whose nature of work is defined by constant exposure to the elements, this is truly

00:47:18becoming an issue of life and death. Mr. Burrow, can you describe why heat is considered a

00:47:25workplace hazard that necessitates rulemaking? Yes. Thank you for the question, Mr. Takano.

00:47:32There are tens of millions of workers in this country who work outside in hot conditions,

00:47:38construction workers, agricultural workers who have a significantly higher percentage of whom

00:47:45have experienced heat-related illnesses and fatalities. And they're indoor workers. I mean,

00:47:50you're well aware of the warehouse workers in your district who wear these warehouses or the

00:47:56containers that they're moving in and out are not air conditioned can literally be like working in

00:48:00ovens. And this affects workers. Some of these workers are working eight, 10 hours a day in

00:48:06these kind of conditions. The human body is just not equipped to deal with that unless you have

00:48:12what OSHA is proposing to require enough water and enough shade and enough rest.

00:48:19There are things we can do. I mean, heat is definitely a major problem, a fatal problem,

00:48:23but it's not a puzzle. It's fairly simple. It's well known what to do to protect workers,

00:48:29and OSHA is trying to do that. Well, thank you. But under the DOL new rule and Acting

00:48:36Secretary Suh's leadership, OSHA emphasizes the obligation of employers to create a safe

00:48:42environment to protect workers. This includes the provision of water and rest break areas,

00:48:52as you mentioned, maintenance of personal protective equipment for heat and monitoring

00:48:57employees for heat stress. Mr. Barab, could you explain why OSHA prioritizes providing a safe

00:49:04environment rather than controlling individual employee behavior? Well, first of all, under the

00:49:12Occupational Safety and Health Act, the employer has responsibility for establishing a safe and

00:49:18healthful workplace. That is the employer's responsibility. Employees have very little

00:49:21control over workplace conditions. They can't control how the air conditioning works if they

00:49:25happen to have it. They can't control what the weather is going to be if they're working outside,

00:49:30obviously. These are things, well, fortunately or unfortunately, depending on the employer,

00:49:34are under the employer's total control. So putting the responsibility on workers to find water,

00:49:41if you're working in the fields and you're working on piece rate, taking time off to go

00:49:44find water, you can't rest unless the employer allows you to rest. And if there's no shade

00:49:50around and the employer hasn't provided shade, there's no shade to get. So it really is these

00:49:54working conditions regarding heat or really any other workplace hazard are up to the employer.

00:49:59They're the employer's responsibility, not the worker's responsibility. Well, thank you for that

00:50:03answer. While heat causes the most weather-related deaths in the country, on behalf of my constituents,

00:50:10a significant proportion of whom work in warehouses, as you mentioned, on construction sites

00:50:15and in orchards and in crop fields, I'm grateful that the Biden administration is fighting for

00:50:19their protection. I want to pivot to warehouse work, which is an important sector of the labor

00:50:25force in my district. Children are currently barred from warehouse work by federal labor

00:50:31rules, child labor rules. A second Trump administration would be likely to,

00:50:37what would likely mean, a significant reduction in OSHA's authority. And Project 2025 agenda would

00:50:43eliminate this rule along with many others. Mr. Barab, what can you tell us about the health and

00:50:48safety risks in warehouse work? Yeah, well, warehouse, I mean, there's a lot of dangerous

00:50:53work done in warehouses. Obviously, the lifting, the heat you mentioned, forklifts, there are a

00:50:59number of other potential problems, you know, in warehouses. And there's a number of

00:51:06dangerous jobs that the wage and hour division of the Department of Labor prohibits children from

00:51:12doing. And it's really, you know, up to OSHA or wage and hour in that case to make sure that

00:51:17children are guarded against those dangerous conditions. Yeah, well, my time is up.

00:51:30The representative from Missouri, Mr. Burleson, is recognized for five minutes.

00:51:35Thank you, Mr. Chairman. Ms. Watson, I understand that you represent and counsel employers

00:51:43on occupational safety and health law issues. Regarding the heat rule that we've been discussing,

00:51:50climates are different across the country. And what may be considered extreme in one area

00:51:57is not in another. Does this standard, does this rule allow for those kind of variances from

00:52:06region to region? There are no specific regional differences that are carved out

00:52:12into the proposed standard. And for clarification, this still has not been published in the Federal

00:52:16Register. So we're presuming that what is on OSHA's website is what we're reviewing.

00:52:22The concern here is that they do recognize how to deal with heat if there's humidity factors and

00:52:28other things, but there are no specific regional differences. One example I can give you where

00:52:33OSHA looks at it is they've left it up to the employer to decide when the heat season would

00:52:40kick in so that they would have to educate their workers on what the heat protections would be for

00:52:46that season. So there is some flexibility there, but there isn't that true recognition of what's

00:52:52good in Santa Fe, New Mexico is not going to necessarily be good in Virginia, in northern

00:52:58Virginia or southern Virginia. There aren't those kind of recognitions, and that's problematic for

00:53:02employers. Yeah, all right. Then the other rule that has been discussed is the walk around rule

00:53:11that was published in April, which I think is just remarkable that we now have a situation where

00:53:20the OSHA compliance and safety officer can be, you know, escorted or, you know, by a

00:53:28union organizer, community activist, or some third party to accompany them in the inspection of

00:53:34another workplace. Is this done in any other aspect, or is this, because this is

00:53:44an entirely new concept to me. It's, there is a provision in the OSHA Act that does allow

00:53:52a compliance safety and health officer, a COSO, to allow a third party person who meets certain

00:53:58criteria, but this regulation really expands that, and I think the troubling thing is that

00:54:04it's just the scope and breadth of who might be able to come on the job site, and then the issue

00:54:09for employers certainly is, well, what if there's already a union in place, but another union

00:54:15representative wants to come in, or, and the sole discretion is with the COSO. It is not with the

00:54:21employer. The employer's only option at that point is to refuse entry and require the compliance

00:54:26safety and health officer to go get an administrative warrant, so the authority of

00:54:33the COSO to determine legally who can be on that job site is very troubling. It seems

00:54:38extremely troubling, especially if there's proprietary information, then that could be,

00:54:44that could be gained by a third party walking through. Chief Bradley, this one-size-fits-all,

00:54:52you know, this is the consistent theme for OSHA, and this new rule that is impacting

00:54:59volunteer firefighters, apparently impacting more than 331,000 volunteer emergency responders.

00:55:09Can you explain why this proposed standard can't apply? Like, what is it that's catching

00:55:15them into this new standard? Well, the, the, thank you, Congressman, the inclusion of

00:55:22volunteers would come somewhere along the lines of compensation. Many receive benefits. Some

00:55:31volunteer achieves paid stipends, and OSHA considers significant compensation

00:55:38to establish an employee-employee relationship. The, the advent of the additional standards,

00:55:44one-size-fits-all, NFPA standards are based on zero to 100 in the fire service, so they include

00:55:52everything a fire department may be exposed to, so that one-size-fits-all has worked in the fire

00:55:57service because NFPA allows authority having jurisdiction. If you remove that authority

00:56:03having jurisdiction and the standard is adopted by reference by OSHA, then there is no local

00:56:09decision on what portions of the standard apply. So, in, in that light, one-size-fits-all

00:56:16just doesn't work for the fire service. As we've, as we've heard this hearing, OSHA has this

00:56:20tendency to overreach. One question I have for you that, that came up is, came up recently in

00:56:29this hearing that we had from our former Secret Service Director, Kim Cheadle, who resigned,

00:56:36thankfully, after our Oversight Committee hearing, but at one point she had said that because of

00:56:43OSHA regulations, the sloped roof, that there's a safety factor that could be considered there,

00:56:51that we wouldn't want to put somebody on a sloped roof. Chief Bradley, do you, you, are you aware of

00:56:57any safety rules that, that would prohibit your firefighters from, from trying to save lives on a

00:57:03sloped roof? Most, most firefighters receive training or education in, in terms of ladder use.

00:57:12The ice on the roof would, the fire service is typically equipped with what's, what's known as

00:57:20roof ladders with hooks. There are conditions that would make roof access difficult, but I'm,

00:57:25I'm not aware of any condition other than the roof being weakened by fire that would prevent

00:57:30firefighters from getting on a roof. Thank you. My time has expired. The, I now recognize the

00:57:35ranking member of the full committee, Mr. Scott, for five minutes. Thank you. Thank you, Mr.

00:57:39Chairman. Mr. Brab, good to see you again. Did you have a comment on the idea of exempting volunteer

00:57:48firefighters from OSHA? I think Chief Bradley's made some very good points. I think there are

00:57:56definitely questions about feasibility. That being said, let me, let me, let me just say this.

00:58:02You know, if my daughter or son was a firefighter, I would want to ensure that they had the maximum

00:58:07protections that every other firefighter or emergency response or a responder has. That

00:58:13being said, again, I think Chief Bradley made some good points and I think, you know, luckily,

00:58:17happily, OSHA has a extremely robust public comment period. There are written comments going

00:58:22on. There will be probably days or maybe even weeks of hearings followed by post hearing comments.

00:58:27OSHA will take in all that information. And if the evidence is strong that it's not feasible

00:58:32for volunteer firefighters, I'm sure OSHA will, will address that either by exempting them or

00:58:38perhaps reducing the requirements. So I think, you know, the process is still going on and I

00:58:42think we need to trust the process to determine the best outcome. Thank you. Comments have been

00:58:48made about how long it takes to get a final rule. You were around when we finally got a rule on

00:58:56beryllium after a long period of time. What are California and Washington State doing

00:59:03that is quicker than OSHA? Yeah. Yeah. I think, you know, during my time at OSHA, there was nothing

00:59:14more frustrating than having to delay standards because mainly because of lack of funding there.

00:59:19And I certainly sympathize and agree with much of what Mr. Gersonberger talked about, about the

00:59:25frustrations involved in the delay of the tree care standards and many other standards. Washington

00:59:31and California have different systems instead of, you know, having the, all of the, you know,

00:59:40studies that need to go into a standard that OSHA has to do, all the different analyses and review

00:59:45that take years and again sometimes decades. They have basically standards boards that, you know,

00:59:51look at the evidence and determine, you know, what the best standard would be. And they also have a

00:59:55public input process, obviously, with hearings and then input. But they have developed systems

01:00:02that work much faster and much more effectively, which is why you already see heat standards in

01:00:06California and Washington, workplace violence standards and ergonomic standards in California,

01:00:12a lot of different standards that OSHA just has not had the resources to be able to complete.

01:00:18Why can't OSHA adopt some of those processes? Why can't they adopt them?

01:00:24Why can't OSHA do that?

01:00:25Well, OSHA, you know, OSHA has a number of requirements. I mean, the law obviously requires

01:00:32that the standards be economically and technologically feasible. They have the

01:00:37SBREFA process, which goes, which has to do a pre-review of small business concerns.

01:00:43There are a number of executive orders coming out of the White House and other laws and court

01:00:47decisions that have been issued that lengthen the process for federal OSHA.

01:00:54And again, I can't help mentioning, again, the budget. You know, OSHA's budget was always small

01:01:00for regulations. The Trump administration cut that budget by 10 percent. And it was only gotten

01:01:06back up to where it was during the Obama administration last year. So OSHA is really

01:01:11starved for funds, making it really unable to go through the kind of processes that are required

01:01:17by the law and to get anything out on a timely basis.

01:01:22Well, making regulations is just one thing they do. They investigate,

01:01:29they visit work sites. With the budget they get, how often can they visit a work site?

01:01:36Yeah. Again, yeah, I've been talking about how underfunded the regulatory program is,

01:01:40but also the enforcement program is extremely underfunded. And I will mention also the

01:01:45proposal, the majority proposal this year would cut enforcement substantially. I mean,

01:01:50right now it would take OSHA, if it were to inspect every workplace in the country just once,

01:01:56about 186 years. So what that means is that unless a worker is killed on the job or seriously

01:02:02injured or there's a worker complaint, any given employer is very unlikely to ever see an OSHA

01:02:07inspector. We had this legislation pending on violence prevention and healthcare settings.

01:02:16What could OSHA do to reduce violence for healthcare workers?

01:02:23Yeah, violence against healthcare and social service workers has long been a problem.

01:02:28They're frequently assaulted, especially in emergency rooms. Obviously, social workers,

01:02:33mental health workers, work in very dangerous environments with

01:02:37patients and clients who have a history of violence. OSHA has been issuing, has issued

01:02:44guidance since the late 1990s. It was updated in 2012 that very effectively addressed the problem

01:02:52of workplace violence and would require or would recommend at this point that employers have some

01:02:57kind of workplace violence program, that they implement a number of measures to reduce the

01:03:03chances of violence for social workers, maybe buddy systems when they're out, communications,

01:03:11refashioning the workplace, having metal detectors in emergency rooms, that type of thing.

01:03:17So there are measures that OSHA can take. And in fact, as I mentioned, this body, the Congress,

01:03:23the House of Representatives has passed legislation twice that would require OSHA to issue this standard.

01:03:31The chair of the full committee, Dr. Fox, is recognized for five minutes.

01:03:35Thank you, Mr. Chairman, and thanks to our witnesses for being here today.

01:03:39Chief Bradley, 23 of my House Republican colleagues and I sent a letter to DOL

01:03:44urging withdrawal of OSHA's emergency response proposed rule. The letter points out that the

01:03:50proposed rule would exacerbate existing retention and recruitment challenges for qualified emergency

01:03:56responders, especially volunteers. What are some of the reasons that volunteer fire departments are

01:04:02struggling to recruit volunteer firefighters? And how will the proposed emergency response standard

01:04:08impact volunteer fire firefighter shortages? Thank you, Chairman,

01:04:14Woman Fox, and thank you and your colleagues for that letter and bringing this issue forward.

01:04:18Retention and recruitment has been an issue in the volunteer fire service for several years. And

01:04:23there are a lot of reasons, one being people work outside their community now.

01:04:29People are leaving rural communities for jobs in suburban areas. But the biggest reason we hear

01:04:36in the volunteer fire service is the commitment, the time that an individual has to put in.

01:04:41What would exacerbate that situation with this rule is the added time that an individual would

01:04:48have to seek just for education. I was a volunteer fire chief in your state in Mebane

01:04:53for seven years, and I cannot imagine accepting the job of a volunteer fire chief

01:05:00with the administrative responsibilities that are going to come with this rule, this proposed rule.

01:05:05Thank you so much, Chief. Ms. Watson, the final walk-around rule dramatically lowers the

01:05:10qualification standards for individuals who are allowed to participate in an OSHA job site

01:05:16inspection as a third-party representative. These third-party representatives could be

01:05:21someone such as a union organizer or community activist without safety experience. OSHA claims

01:05:27this rule will somehow improve worker safety and health. Could you discuss whether the walk-around

01:05:33rule will improve worker safety and health? Thank you, Chairman. No, I don't believe that

01:05:39by relaxing the standards of who can accompany the compliant safety and health officer will

01:05:45actually achieve OSHA's goal. If their goal is to improve the inspection process and the

01:05:50representative of the workers, then they should work within the confines of what they already have.

01:05:55By allowing just anyone to come on the job site, that person might not be familiar with the job

01:06:01site. They might not be familiar with the employees and what the requirements would be. I

01:06:05don't think it lends anything to the process of improving worker safety, certainly, and improving

01:06:10worker representation. There's other ways around that. Yeah, it's just common sense. I've gone to a

01:06:17lot of job sites, a lot of companies, and done walk-arounds, and you have to be so careful

01:06:24what you do. And the more people you have, the more dangerous it is. There's no question about it.

01:06:29Mr. Gerstenberger, you mentioned in your written testimony that arborists rely on several methods

01:06:35for accessing a tree for trimming or removal, including using cranes. Can you explain how OSHA's

01:06:42current enforcement approach might deter companies from using cranes, even when it's determined to be

01:06:49the safest method for accessing a tree? Thank you, Dr. Fox. I will have to start with the underlying

01:06:57standard governing this situation. 19.10.180 has a clause in it that says workers shall not be

01:07:05hoisted or swung using a crane. Currently, OSHA allows, through its enforcement memoranda,

01:07:14the employer to mount an affirmative defense to using a crane to hoist a worker in a tree

01:07:20when they determine it's the safest or only feasible way to access that tree and perform the work.

01:07:27However, mounting an affirmative defense means that the employer in question must first be cited.

01:07:36So that in and of itself is an onerous and laborious and time-consuming process. I don't

01:07:41know an employer in my association who would shy away from using a crane to put a worker into a

01:07:48tree, because it has proven since 1968 to be a very safe practice. And considering the alternatives

01:07:57of climbing dead trees, decayed trees, or having to ascend over multiple branches to access the

01:08:05top of a tree, or place an aerial lift or compact lift directly under a tree to access a very tall

01:08:11tree, the idea of a rated anchor on a crane that's capable of supporting tons seems very,

01:08:20very desirable. And so my members regularly adopt that practice. Again, it makes sense. It's just

01:08:27common sense. And as someone who's had a lot of tree work on tall trees done in our yard, and we

01:08:34just look around here and see how they use cranes for many different things, it just makes sense to

01:08:41be able to do that. Thank you very much, Mr. Chairman, and thanks to our witnesses again. I yield back.

01:08:48The representative from Illinois, Ms. Miller, is recognized for five minutes.

01:08:53Thank you. Thank you, Mr. Chairman. I just have a real quick question for Mr. Barnett.

01:09:00This is Mr. Owens. Sorry. I think we have to recognize Ms. Miller first because you're

01:09:06waving on. So we'll go to Ms. Miller from Illinois and then Mr. Owens from Utah. My apologies.

01:09:12Thank you, Chairman. Ms. Watson, as you know, the OSHA vaccine emergency temporary standard

01:09:21was struck down by the Supreme Court because it was deemed unconstitutional.

01:09:26Following the ruling, OSHA Administrator Douglas Parker told Reuters, quote,

01:09:32the ruling was unfortunate, but it's not stopping us from pressing employers to take adaptive

01:09:38measures to keep things in place. Ms. Watson, do you think OSHA has the power to circumvent

01:09:47the Supreme Court's decision on vaccine mandates, or does OSHA have to abide by the Supreme Court's

01:09:55ruling? Thank you, Representative. I think that OSHA, if they're prudent, will follow what the

01:10:03Supreme Court said. If Congress gives OSHA the authority to ignore, to change that, that's why

01:10:09we have the three branches of government. I think that OSHA is looking forward, certainly at an

01:10:15infectious disease standard, probably targeted at something like that. The concern is compelling

01:10:20employees to receive vaccinations when there are a host of reasons why they shouldn't,

01:10:26or don't want to, or maybe don't need to. And so for a government agency to tell employers that

01:10:31they have to vaccinate their employees is extremely problematic. And I think that if

01:10:36OSHA moves forward with anything like that, it should do so with caution and a thorough legal

01:10:42analysis. But right now, no, I don't think that they have the authority to do that.

01:10:46Let's hope OSHA abides by the court's rulings. We've all heard very many sad stories of people

01:10:53that had their personal reasons to not want to take the vaccine, and they were fired or they

01:11:00took it under duress. And I don't want it ever to happen again. Ms. Watson, OSHA has ignored

01:11:07concerns from farmers about issuing a one-size-fits-all heat rule. The proposed standard

01:11:14mandates rest breaks of 15 minutes at least every two hours once it reaches the high heat trigger.

01:11:21How do you think this will impact the agriculture industry and other industries, too?

01:11:27So the high heat trigger kicks in at 90 degrees Fahrenheit, for those who haven't heard all of

01:11:32that. The initial heat trigger is 80 degrees Fahrenheit. But the mandatory rest breaks,

01:11:38as you say, do kick in at 90 degrees or higher. I think the impact there is that might affect

01:11:45their processes in how they can do things. There might be circumstances where employers

01:11:50have employees doing a task. They might not be able to take that break. OSHA recognized

01:11:56in the proposed rule, in the preamble, that examples such as pouring concrete, where you

01:12:02have to complete that pour, you can't just stop every two hours unless that is, you know,

01:12:08if you're in the process of pouring the concrete, because otherwise it's ruined.

01:12:13The issue there for the agricultural workers, those are some of the most vulnerable

01:12:17because of their work circumstances. So I think it's important for employers always to provide

01:12:24water, rest, shade, and provide the rest breaks as needed. Sometimes making it a mandatory thing

01:12:29doesn't work. Even if you try and stagger your employees on when they're going to take their

01:12:34mandatory two hours, that might leave your workers shorthanded on a particular project.

01:12:40I like the idea, and I think it's really worthwhile to encourage employers to tell

01:12:45their employees you can take rest breaks as needed. That way they can help self-moderate.

01:12:52Thank you. And I yield back to Chairman Kiley.

01:12:55The representative from Utah, Mr. Owens, is recognized.

01:12:58Thank you so much. Mr. Barrack, I just have a real quick question. I looked at your background.

01:13:05You've been a government worker for 46 years. Is that correct in that range?

01:13:12Have you ever run a business?

01:13:14Have I ever owned a business?

01:13:15Yes.

01:13:15No, I have not owned a business.

01:13:18The employees that you have, are they coming from the industries that you oversee?

01:13:25You have people, for instance, in the tree service industry. Anybody like that within OSHA

01:13:31that are hired there, are they also government workers, pretty much?

01:13:35I'm sorry. Is there anybody in OSHA that's worked in the tree? I'm sorry.

01:13:38Yeah, yeah. What I'm trying to understand is the experience that you have when you oversee

01:13:43the broad spectrum of businesses you oversee. And my concern is, I think there's a premise,

01:13:51it starts off that the employee cares more about, that the OSHA employees care more about

01:13:58business, the employees out in the field, than the owners do, the folks in this area.

01:14:04Am I correct on that? Is that something that you kind of think you have to protect

01:14:07employees from the employers?

01:14:09I think most employers want to do the right things and protect their employees. I have no doubt about

01:14:13that. And most of the employers I've met want to, but there are a lot of employers who don't. I mean,

01:14:18who cut corners on the workers' side because of that.

01:14:21The rule seems like they're tainted toward those who don't care. And I guess my concern is, I look

01:14:29at just common sense of, you have a comment period that people have to go through. My experience is

01:14:37very simple as this. When you have a government employer, a government employee that seems to

01:14:44know it all already, and you give them the power to do whatever they want to do, the comment period

01:14:49doesn't really mean very much. What is already preordained is going to come out. This is the

01:14:54way my experience has been. Would it be helpful that maybe if you're overseeing these industries,

01:15:01that somebody who understands the industry is represented within the government process?

01:15:06Yes. Let me say two things about that. One is, again, OSHA has got a very small budget. They

01:15:10can only have so many staff there. They can't have staff that's an expert in every area. But

01:15:14what OSHA does to address that is they use a lot of their regulatory funding to hire consultants

01:15:20that do have that kind of experience. Okay. Well, these consultants are not—and

01:15:23here's another problem. First of all, I always hear about the lack of money. And I'll be honest

01:15:28with you. Entrepreneurs are very happy when OSHA doesn't have a lot of money because what happens

01:15:34is you're putting people out of business. The things that you're doing, even for someone as

01:15:39a layperson, makes no sense unless you're going in with the premise that these are bad guys.

01:15:45They need to be stopped. They need to be halted. You mentioned—is your son a fireman? You

01:15:51mentioned—I don't know if your son is a fireman or not. You mentioned earlier that if your son

01:15:57was a fireman. Yeah, yeah, yeah. Right. I didn't say he is. I was saying if any of my children

01:16:02were fire responders, I would want them to have them. Okay. With that being said, would you agree

01:16:06that the fire chief, if your son was a fireman, the fire chief would care more about your son

01:16:12than some stranger in D.C. who has no idea who your son is? I think that's kind of a red herring.

01:16:18No, no. OSHA has— Okay. I'm reclaiming my time. No, but OSHA has a robust—

01:16:22I just have a few minutes. That is what's called common sense. If someone who is in the game,

01:16:29who oversees people that they know, they employ people that they want to keep, retain,

01:16:35do they care more about some bureaucrat who has no idea but has a lot of good theories?

01:16:40And that's the problem with OSHA, is a lot of good theories, but it runs people out of business.

01:16:45We're concerned about rural communities holding on to fire services, but it doesn't seem like

01:16:52the D.C. people really understand that or care about it, because you're not listening

01:16:56to the concerns. You put together a comment period, and you're going to do what you're

01:17:02going to do. We all understand how that works. So, just real quickly, Chief Bradley,

01:17:12if you could have some suggestions or ideas about how to approach this one-size-fits-all

01:17:19for emergency services, could you, within the next 30 seconds, kind of explain what that would

01:17:23look like, if you can kind of give an idea or support or suggestions of how this should be

01:17:29approached? Yes, I think that the standards should be written prescriptive to the needs

01:17:34of injury prevention, rather than adopting by reference industry standards that cover a lot

01:17:40of things that are not specific to injuries. Also, I think involvement of the fire service

01:17:45leadership in writing those rules would be beneficial. Okay. Well, thank you. I appreciate

01:17:51all your feedback. You're back. The representative from Michigan,

01:17:56Mr. Wahlberg, is recognized for five minutes. Oh, the other representative from Michigan,

01:18:01Ms. Stevens, is recognized for five minutes. Thank you, Mr. Chair, and thank you to our

01:18:07witnesses. Mr. Barber, we just completely appreciate what you're doing at the Department

01:18:13of Labor as Deputy Assistant Secretary for OSHA, and coming out of the COVID time period in

01:18:21particular, where your department was very stressed, and this very subcommittee spent a

01:18:27lot of time with you. The American people know all the more the importance of the work that you

01:18:35and your very large workforce, maybe it could be larger, does to keep workers safe, maintain

01:18:42standards, and work alongside the businesses of this country. So I wanted to ask about heat

01:18:54stress and what the rule actually says, rather than just the rhetoric surrounding it. So OSHA's

01:19:03proposed rule mandates employers plan to monitor employees for heat stress and provide resources

01:19:08like shade and portable water with heat indexes that reach up to 90 degrees. Is that correct?

01:19:16Yeah, I think there are two different triggers. I think, yeah, one is in the 80s and one is at 90,

01:19:22yeah. Okay. And then the rule would mandate employers have to provide 50-minute breaks

01:19:28every two hours at a 90-degree heat index? Correct, yeah.

01:19:33Okay. And then in your view, do these provisions in the rule constitute a complete work stoppage

01:19:39or an undue regulatory burden that seriously impacts productivity, and why or why not?

01:19:46Yeah, break times are needed, obviously, to protect workers' health. And we all know also,

01:19:52and I think Dr. Adams mentioned it in her opening statement, that heat takes a terrible toll on

01:19:58worker productivity. So anytime you can help workers, especially through rest breaks, you're

01:20:03going to increase their productivity. We also know that if workers aren't given the rest breaks,

01:20:08they kind of take their own breaks. They'll take some time to wipe themselves off or catch

01:20:12their breath or rest anyway. So they're already taking these breaks, and science has found that

01:20:17it's a lot more efficient just to require 15-minute breaks every once in a while. It will not only

01:20:24protect workers, but it will also increase productivity. Yeah, and my father is an independent

01:20:30business owner, 79 years old, still doing landscaping. I got to check in on him, you know, make sure he's

01:20:37drinking his water, sitting in the shade. You know, he just loves being out there, loves doing the design

01:20:42and the implementation. But can you just also explain how third-party reviewers present at

01:20:49OSHA inspector walk-arounds can help improve worker safety? Yeah, thank you for that question.

01:20:56I want to say a couple things about walk-around. First of all, OSHA's regulation, new regulation

01:21:03that allows third-party walk-arounds is nothing new. OSHA has always allowed third-party walk-around

01:21:09representatives. In the original regulation, it said, you know, it gave examples such as a safety

01:21:16expert or an industrial hygienist, but it was never exclusive. And this rule actually put a

01:21:21little bit more requirements into what that walk-around representative qualifications

01:21:27needed to have. So it's nothing new, it's never been a problem before, and it is very helpful for

01:21:33workers, and it does protect workers' health and safety. We know that if there isn't a walk-around

01:21:38representative, and OSHA inspectors are then supposed to just talk to a number of employees,

01:21:44that employees are often intimidated. They often get punished, or they feel they will be punished

01:21:48for talking to OSHA inspectors. Yeah, and would it be reasonable to assume that union

01:21:53representatives with their years of experience negotiating for increased safety standards and

01:21:58familiarity with a wider breadth of facilities be helpful to inspection as stated in the rule?

01:22:04Yeah, I mean, yeah, I mean, either, yeah, in union sites or non-union sites, having experts in there

01:22:10that the employees trust and that may know a lot more about that specific workplace, possibly,

01:22:16than the OSHA inspectors do, that may be able to speak the language that the employees speak,

01:22:20all of that can help employees safeguard their health and safety. It's important, it's one of

01:22:25the most important things that Congress put in the Occupational Safety and Health Act was

01:22:30to allow walk-around representatives. Yeah, and just one more to squeeze in,

01:22:33because many of my Republican colleagues believe allowing union third parties on inspections would

01:22:38lead to surreptitious organizing campaigns during walk-arounds. In your view, would it be

01:22:43possible for a union official to be able to conduct this typically months-to-years-long

01:22:49effort to organize over the course of a few hours during an expansion on the walk-around?

01:22:56I'm sorry, what the question— So I'm asking you to shut down that they're saying that we're

01:23:01sending inspectors to organize the unions. They're just inspecting. They're not doing

01:23:07years-long organizing campaigns while they're inspecting for health and safety over a few hours.

01:23:12Right, and— But God forbid we keep people safe, is what I'm getting at.

01:23:17There is language in the regulation and in OSHA's field operations manual that gives

01:23:24inspectors the authority to deny the right of accompaniment under this section to any person

01:23:29whose conduct interferes with a fair and orderly inspection. So anything that the COSHO decides is

01:23:35not directly related to the inspection, he or she is perfectly able to kick that person out of the

01:23:41workplace, and they do that. They will do that. They're equipped to do that. They can do that.

01:23:44They're allowed to do that. This is not a real problem. Yeah, it's a job site. Thanks. I yield

01:23:48back. Thank you, Mr. Chair. The representative from Connecticut, Mr. Courtney, is recognized for

01:23:55five minutes. Thank you, Mr. Chair, and thank you to the panel for being here today on such an

01:24:00important topic. I appreciate the opportunity getting waved in as not a sitting member of

01:24:05this subcommittee. Used to be on this subcommittee, as Mr. Barab remembers. And I did want to just,

01:24:12as long as we're talking about OSHA priorities, and I think Mr. Scott alluded to this earlier,

01:24:17is that, you know, one of the, I think, most urgent issues before OSHA and Congress is the

01:24:23crisis that exists in our healthcare sector. Again, 2016, we had a GAO report which showed that

01:24:30people who work in hospitals, nursing homes, EMTs, ride in ambulances, are subject to

01:24:37workplace violence at a rate of five times greater than any other sector in the U.S. economy. We had

01:24:43a horrible tragedy in my district in eastern Connecticut last year where a home health nurse

01:24:50went into a home. Again, it was an individual that was on the sex offender list, and she never

01:24:57emerged after at 56 years old, large family, heart of gold. And unfortunately, that's not a

01:25:05rare instance. The numbers that GAO produced in terms of kicking, hitting, spitting, and actual

01:25:13violence with weapons is something that happens far too often in emergency rooms, psychiatric

01:25:20hospitals, and again, the folks who ride the ambulances, particularly on overdose situations

01:25:26where, again, they are subject to workplace violence. So, Mr. Barab, you know there's a

01:25:31pending rule that has been slowly, excruciatingly slowly moving forward which would put in a

01:25:37workplace violence prevention standard. It has been scrubbed in terms of the financial cost. It

01:25:43is a fraction, tiny fraction, of the overhead of healthcare institutions. Again, and this would be

01:25:50aimed at really just putting into place common sense preventative measures which have been shown

01:25:55to work in other parts of the country. OSHA has set up voluntary guidelines to make that, you know,

01:26:02to at least give people best practices out there to stop this epidemic of harm and violence. But

01:26:10again, it's we're still sort of just moving along at a snail's pace. We have legislation to

01:26:14accelerate that process. There's precedent for it when the AIDS crisis hit, and again, people were

01:26:21subject to blood-borne pathogens. And this happened again in first responders as much as any

01:26:28other population out there. Congress forced the process to move forward to put into place the

01:26:33standards that today include gloves, disposable needles. I mean, all the things that have worked

01:26:39to prevent the spread of AIDS. So again, can you again just talk about, again, this priority which

01:26:46is in the pipeline but, you know, just inching along and how this is a way Congress can actually

01:26:52save the lives of nurses, emergency room physicians. Again, the healthcare providers,

01:26:5915 million strong in this country, who again are subject to an unacceptable level of violence

01:27:06that is burning out staff and making it harder to recruit people into the field.

01:27:11Yeah, thank you for that question, Mr. Courtney, and I commend you for your leadership on this

01:27:17issue. I have been working on the issue of workplace violence for 40 years. I used to work

01:27:22for a union that represented healthcare workers and social service workers. It's always been a

01:27:26terrible problem. We had a struggle to get OSHA to try to address it, which they finally did in the

01:27:311990s. And as you say, they've been making frustratingly slow progress on a workplace

01:27:37violence standard, despite the fact, again, that this chamber has passed legislation twice on

01:27:42a bipartisan basis to force OSHA to issue that standard much more quickly. OSHA standards,

01:27:48this standard and other standards are not just based on somebody sitting in a little office

01:27:53over across the mall. They are based on what is going on, what the best employers are now doing

01:27:58to prevent workplace violence in their workplaces. These measures that OSHA will require

01:28:03work, they're feasible, they save lives, and the sooner OSHA can get that standard out, the more

01:28:09lives that will be saved. Thank you, and again, as you point out, this is something that is,

01:28:18you know, in place in some healthcare systems, and it's showing great results. And we're talking

01:28:24about simple things like flagging high-risk individuals. The case that happened in my

01:28:30district, you know, someone being on a sex offender list, she never should have been going into that

01:28:36home alone. And, you know, having, again, that sort of flagging system in a communication system

01:28:42and also learning how to sort of address and mitigate and respond and control violence and,

01:28:50you know, aggressive behavior works in terms of saving lives. So again, I thank you for clarifying

01:28:55that issue, and hopefully we'll pass the bill. Mr. Bacon, Republican, is the lead sponsor

01:29:00in this Congress. It would pass. There's just no question about it, and we can actually do

01:29:04something to help the caregivers of our nation yield back. Thank you. The gentleman's time has

01:29:09expired, and I recognize myself for my five minutes of questioning, and thanks to the panel for being

01:29:15here. Chief Bradley, having the privilege of representing a good number of rural communities

01:29:23who rely on volunteers for their fire department and do what's necessary to make sure that those

01:29:28departments are put together well, they already operate on limited budgets, as you know,

01:29:38and face significant funding challenges. My question is, how would the new mandates on

01:29:43volunteer departments included in the emergency response proposed rule exacerbate these challenges?

01:29:50Well, the proposed rule, thank you, Mr. Chairman, the proposed rule

01:29:56adopts by reference NFPA standards that have long been considered in the fire service

01:30:01voluntary consensus standards. Those, in many of those standards, they apply rules or standards

01:30:08such as equipment replacement in a certain duration, training. The increase in the cost

01:30:17of replacement for equipment, the increasing responsibility for hiring certified technicians

01:30:25to inspect trucks every so often, those are things that are not done consistently and not

01:30:31affordable for many rural fire departments. In addition to that, just the issue that the

01:30:39standard does not define specifically volunteer issues, doesn't allow for the variation for

01:30:46local jurisdictions for the authority having jurisdiction to determine the applicability.

01:30:51All these things would increase the cost to the rural community fire department that doesn't

01:30:56have the money now. Yeah, having a late father-in-law who was a volunteer firefighter

01:31:04in his retirement years told me numerous testimonies of citizens who said, we'd like

01:31:11you to be as best trained as possible, best resources possible, but the most important

01:31:14thing is that you show up. And sometimes we get in the way of that. Thanks for your service.

01:31:21Mr. Gersonberger, during the Trump administration, OSHA convened a Small Business Regulatory

01:31:27Enforcement Act, SBREFA, panel to hear feedback from small entities on potential tree care

01:31:34standard. Can you talk about the panel's findings in the small business report and whether it

01:31:41recommended that OSHA move forward with a tree care standard?

01:31:47I would summarize the SBREFA process, and thank you for that question, in our industry

01:31:52with three points. First, the insight was gained that most, the vast majority of employers

01:32:00in our industry are indeed small business, as defined by OSHA and SBA. So these are small

01:32:08and tight-knit, often family-operated businesses, caring deeply for each of their employees,

01:32:15personal relationship with each of their employees. Second, it was gratifying, I guess I could say,

01:32:25to say that there was overwhelming support for the idea among these businesses for a separate

01:32:32standard that would govern them. There was very little dissent among that group that,

01:32:39indeed, a standard would be welcomed and could be very advantageous for the industry to help

01:32:46perhaps the poor practitioners in our industry be a little safer and better at what they did.

01:32:54A third point that I think came out of that process was that the looking at the scope and

01:33:02application of this standard was going to be very important, that we wouldn't want to,

01:33:07in this process, inadvertently drag in other groups, other industry groups that shouldn't

01:33:16be regulated by this standard, that it should apply to those employers who truly faced the

01:33:23hazards associated with tree work. Some of the more profound hazards, the struck-by hazards,

01:33:28the falling hazards associated with working on large trees. So focusing on the scope and

01:33:37application of a proposed standard would be very important in ensuring its success.

01:33:43Unique industry. Yes. In your written testimony, it notes that some state plans have adopted

01:33:49regulations specific to the tree care industry, and there is a voluntary consensus

01:33:53standard in place for the industry. I gather OSHA does not look to those state plan regulations,

01:33:59but instead uses other OSHA regulations that are not specific to your industry.

01:34:05How would a federal OSHA standard improve the safety of the tree care industry?

01:34:09So currently, right now, through an enforcement memorandum, OSHA co-shows are instructed to

01:34:17obviously apply existing OSHA standards where they can be applied, but in many, many instances,

01:34:25the OSHA co-show has to invoke the general duty clause of the OSHA Act, and then go on to cite

01:34:32go on to cite specific passages in our voluntary consensus standard as what that employer should

01:34:39have known and should have done. That is problematic for the co-show, because

01:34:45bringing a citation under the general duty clause is a lot more work. It also doesn't provide any

01:34:52upfront guidance to the employer out there, because in a general duty citation, it's a

01:34:58smoking gun situation where the co-show goes into a work site, say there has been an accident,

01:35:04and there's evidence of what happened, and then the co-show can look at the voluntary

01:35:08consensus standard and says, aha, you know, that is what that company should have done.

01:35:13But there's nothing in existing standards in OSHA to proactively guide that employer

01:35:19or guide that co-show as to what appropriate practices were. So to summarize, having some

01:35:26of that language from our standard codified in standard would provide guidance not only to the

01:35:31co-show, but also to the smaller employers, particularly the smaller employees, as to

01:35:36best practices. Thank you. Thank you. My time has well over expired.

01:35:42I guess that's the joy of sitting in the chair, the last point. So I'd like to thank our witnesses

01:35:48again for taking the time to join us today. Without objection, there being no further business,

01:35:54the subcommittee stands adjourned.

Kevin Kiley Leads House Education & Workforce Committee Hearing On ‘OSHA Overreach’

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