Legislative Testimony
When new legislation passes, PSBA is seen as the leader in analyzing it and helping members make sense of it.
OSHA -- House Bill 1325 (P.N. 1774)
Before the House Labor Relations Committee
Sept. 10, 2007
Mr. Wayne Smith, PSBA Assistant Executive Director for
Insurance Services
Good afternoon, my name is Wayne Smith and I am the Assistant Executive Director for Insurance Services at PSBA. I would like to thank Chairmen Belfanti and DiGirolamo for giving me the opportunity to speak to the committee about House Bills 1325 and 1816 and the issue of OSHA standards for public school employees in Pennsylvania. Before proceeding with this testimony, it needs to be made clear that PSBA and its members take the health and safety of school personnel very seriously. We believe, however, that these bills would place an onerous and unwarranted burden on school districts.
The workplace threats found in school buildings are not as significant as those faced by workers in roadway construction zones, public utility plants, and various private sector industries. Our business is that of teaching and learning, which is inherently nonhazardous as demonstrated by school districts' low rate of workplace injuries and fatalities. For instance, between July 2006 and June 2007, 6,522 accident claims were filed by our 440 workers' compensation clients, 357 of which are school districts. The top 10 types of accidents, which account for 60% of the total claims, were almost exclusively caused by slips, falls, and strains. The only exception was the second most popular claim - being struck or injured by a student. Only 45 accidents (0.69%) were classified as a burns caused by acid or chemicals. With these figures in mind, it is unfair to expect districts to spare the time, taxpayers' dollars and personnel to meet the unnecessary standards set forth in the proposed legislation.
Although schools are relatively safe workplaces, school districts have recognized that they are not completely hazard-free and have implemented programs and protocols to mitigate accidents and exposure to toxic substances. Among our district-clients, 124 have state-certified safety committees that must meet requirements for annual training, employee representation, inspection frequency, and the publication of meeting minutes. Keep in mind that this number does not include the districts that have non-certified committees or that are not clients of the PSBA Insurance Trust. In addition to organizing committees, several districts utilize the services of health and safety consultants. Our loss control department conducts a safety visit to each of our clients once every 3 years, and in 2006, we conducted 145 surveys and visitations. We also followed-up with 182 districts on the implementation of health and safety improvement recommendations, as well as reviewed and analyzed the losses of 148 districts. Furthermore, our organization provided training to 21 districts and 139 safety committees, and our extensive library of workplace safety videos was utilized 130 times by our clients.
In addition to the proactive measures taken by various school districts, public school employees are already protected by a number of state and federal occupational health and safety laws. For instance, the OSHA standards regarding asbestos exposure are required by federal law to apply to school employees. Pennsylvania's Worker and Community Right-to-Know Law mandates hazardous substance procedures and protections for public employees similar to those found in House Bills 1325 and 1816. Additionally, the Pennsylvania Health and Safety Act and its corresponding regulations provide for workplace and equipment safety precautions in school buildings. Recently, the Commonwealth also enacted the Bloodborne Pathogen Standard Act, which prescribes regulations that, at a minimum, apply the federal OSHA rules for mitigating the transfer of bloodborne pathogens in public workplaces. Granted, the combination of these statutes and standards do not achieve the same level of protection set by OSHA. Nevertheless, PSBA questions how additional bureaucracy will reduce exposures and accidents in our schools.
Considering the 501 school districts and approximately 180,000 public school employees in the Commonwealth, does the Pennsylvania Department of Labor and Industry (L&I) have the administrative capacity to fairly and effectively enforce this act? House Bills 1325 and 1816 mandate L&I to execute outreach, education and compliance assistance programs, all of which will undoubtedly require additional funding and personnel. Are the working situations in our schools so dangerous and unregulated that precious administrative resources need to be diverted from enforcing labor standards in the private sector?
If the committee is to proceed with either House Bill 1325 or 1816, PSBA recommends incorporating the following amendments:
- The monetary penalties either should be eliminated for school districts or made conditional upon compliance. Section 1956.1(b) of the OSHA standards urges states to consider the differences between public and private employers when determining penalties for noncompliance. While fines may be effective in the private sector, they are not necessarily appropriate for government entities. Neither bill clarifies who will pay the penalty - the district or individual school board members? Fining the district as an entity will transfer the burden to taxpayers, who were not responsible for the violation and have clearly voiced their opposition to higher property taxes. Penalizing individual board members for technical violations is unfair, considering that they receive no compensation for their service and are not responsible for the daily operation of the schools. Maryland and Utah - two states with federal-approved OSHA programs - prohibit monetary penalties from being imposed upon government entities. In New Mexico, which also has a federal-approved plan, a public employer does not have to pay the fine during the compliance period. If it complies before the deadline, the monetary penalty is dropped.
- School entities should not be required to establish "workplace environment committees," as proposed in House Bill 1816. While safety committees can be effective tools for school districts in mitigating workplace hazards, they are not necessarily the most appropriate option for every district. If House Bill 1816 were enacted, nearly every school building in Pennsylvania would have to organize a 4 to 12-member committee that must fulfill a long list of responsibilities. One very troublesome aspect of this legislation is the provision that grants the committee the authority to shut down supposedly dangerous workplaces and/or re-assign the affected employees. This power has been and should be exclusively reserved for the superintendent and the school board of directors - the officials charged by the public with the responsibility for making such decisions. Stripping them of this authority would disrupt the accountability structure of school districts. There are also numerous laws that must be considered before shutting down a project or re-assigning professional school employees, including provisions of the School Code governing buildings, and the No Child Left Behind Act that, in some cases, dictates which professional employees must be assigned to certain buildings or classes. There is also the practical issue of just when and how this committee is supposed to carry out their responsibilities in the manner prescribed by House Bill 1816 when nearly all of its members have other duties.
- The proposed Pennsylvania Occupational Safety and Health Review Board in both bills should be enabled to provide grants to public employers who need assistance in correcting a violation. Otherwise, school districts would face another unfunded mandate and taxpayers would have to cover the compliance costs for a violation they did not commit. If those costs were to require a tax increase above the maximum index established by Act 1, and the voters ultimately rejected the higher rate, the district would have to resort to cutting educational programs to comply with technical violations. This does not have to be the case. Consider New York, where upon request of a public employer, the Occupational Safety and Health Hazard Abatement Board can allocate state funding to subsidize up to 75% of the abatement project. Section 303(9) of House Bill 1816 does authorize L&I to provide grants for the purpose of carrying out its duties, but it is not clear that districts can access those monies to effectively comply with the act.
- To assist L&I with developing the specific standards, an advisory board that includes representation from school districts and other various government stakeholders should be established. This body is proposed in House Bill 1816 but not in 1325. With this board, L&I could promulgate regulations that differentiate between particular public employers and avoid unnecessary uniformity. Such a board exists in New Jersey; it consists of 24 members, among which include the Commissioner of Education and one representative for local school boards. Other federal-endorsed plans, such as those in Hawaii and North Carolina, provide for similar advisory councils with public sector representation but do not explicitly require school-related members.
It is a priority of every school district in Pennsylvania to provide a safe environment to its students and employees. As demonstrated under current law, districts have accomplished this without jeopardizing the quality of education. If enacted, House Bills 1325 and 1816 would sacrifice adequate funding for education programs for the sake of superfluous and unwarranted OSHA protection. Thank you for your consideration of PSBA's concerns and recommendations. I will be happy to answer any questions that you may have.
15 U.S.C. §2601 et seq.; 40 CFR §763.80 et seq.
43 P.S. §25-1 et seq.; 34 Pa. Code §39.1 et seq.