October 23, 1996

Congressman Cass Ballenger
U.S. House of Representatives
Washington, D.C. 20515

Dear Congressman Ballenger:

I am writing in response to your September 26 letter expressing concern over the Occupational Safety and Health Administration's (OSHA) proposed Guidelines for Workplace Violence Prevention Programs for Night Retail Establishments ("Guidelines"). These are draft voluntary guidelines designed to prevent violence at late night retail establishments. As we understand your concerns, they are that: 1) OSHA has failed to comply with the Small Business Regulatory Enforcement Fairness Act ("SBREFA") by not conducting appropriate economic impact analyses; 2) OSHA has not subjected these guidelines to the notice-and-comment process for promulgating rules envisioned by either the Occupational Safety and Health Act ("OSH Act" or "the Act") or the Administrative Procedures Act; 3) The Guidelines are fatally flawed as a "one size fits all" solution for the problem of workplace violence; 4) the Guidelines will be enforced through Section 5(a)(1) ("The General Duty Causes") as though they were standards promulgated after notice-and-comment rulemaking; and 5) the Guidelines will be used to establish new standards of care in personal injury or wrongful death tort suits. You have also requested that OSHA hold stakeholder meetings with representatives of all interests most likely to be affected by the proposed guidelines and extend the comment period on the guidelines until at least 30 days after the stakeholder meetings are concluded.

At the outset, let me respectfully assure you that such concerns are unfounded. As a response to the serious problem of homicides in the workplace, which is the second leading cause of all job-related deaths and the leading cause of fatalities among women, OSHA developed these draft workplace violence guidelines. OSHA has complied risk factors for workplace violence identified by the National Institute for Occupational Safety and Health (NIOSH) and three states, and has set forth some useful techniques for reducing those risks. These guidelines are our recommendations to employers and workers who may be at risk; they are advisory in nature, and set forth general principles and technical information which interested employers may find useful in reducing workplace violence. The Guidelines cannot and will not be enforced as though they were standards promulgated after notice-and-comment rulemaking.

The discussion which follows demonstrates that there is a fundamental difference between an employer's obligation under the General Duty Clause, and the role of voluntary guidelines. We are also providing you with information on the role played by stakeholders in the process of developing these proposed guidelines.

The General Duty Clause

When Congress enacted the Williams-Steiger Occupational Safety and Health Act of 1970, it intended to impose two complementary duties on an employer. The first was an employer's legal obligation to keep its workplace free from recognized hazards, likely to cause death or serious physical harm to its employees, for which a feasible means of abatement existed. (Section 5(a)(1)) This has come to be referred to as the "General Duty Clause." The second legal obligation which Congress imposed on an employer was its duty to comply with specific health and safety standards promulgated by OSHA after notice-and-comment rulemaking. Citations for violation of the General Duty Clause are issued when the four components of this provision are present, and when no specific OSHA standard has been promulgated to address the recognized hazard. These four elements are: 1) the employer failed to keep his workplace free of a "hazard"; 2) the hazard was "recognized" either by the cited employer individually or by the employer's industry generally; 3) the recognized hazard was causing or was likely to cause death or serious physical harm; and 4) there was a feasible means available that would eliminate or materially reduce the hazard. It should be noted that whether or not guidelines exist, an employer is still subject to the same legal requirements of Section 5(a)(1); an employer's duty will arise only when the four elements are present. Conversely, even in the presence of guidelines which offer a specific means of abatement for a recognized hazard found in an employer's workplace, the employer need not abate the hazard by the means suggested in the guidelines. Rather, an employer is always free to choose its own method of abatement.

The Role of Voluntary Guidelines

Voluntary guidelines, whether developed by governmental bodies such as OSHA, NIOSH, Centers for Disease Control (CDC), or private organizations such as the American National Standards Institute (ANSI), the National Fire Protection Association (NFPA), or others may be nothing more than a compilation of studies prepared by experts in a particular field. In the case of the late night retail guidelines, which are still in draft, the principles articulated therein are based largely on the laws, regulations, and guidelines of the states of Florida, Washington, and California, respectively.

OSHA intends to present these guidelines as a "best practices" guide, as a means of disseminating information, which interested employers are free, not forced, to utilize. The Guidelines do not create any new duties under the OSH Act. Therefore, an employer's failure to implement them does not constitute a violation of Section 5(a)(1). For example, when OSHA officially released its Guidelines for Preventing Workplace Violence for Health Care and Social Service Workers, we followed up with a memorandum to our Regional Administrators stating that the Guidelines were for "educational purposes only," and that no citations should be issued based upon them. When the Guidelines for Workplace Violence Prevention Programs for Night Retail Establishments becomes final, we intend to send out the same type of notification.

Effect of OSH Act on State Remedies

You also express the concern that these guidelines will establish a new standard of care for personal injury or wrongful death tort suits: "In addition, plaintiffs' lawyers will point to the Guidelines as government-issued minimum standards for conduct. They therefore become requirements, regardless of what name OSHA gives them." (Chrmn. Ballenger letter of Sept. 26, 1996, to Joe Dear, p. 1). For the reasons which follow, we think this concern is unfounded.

As you know, when Congress passed the Williams-Steiger Occupational Safety and Health Act of 1970, 29 U.S.C. section 651 et seq., it did so based upon a finding that job-related injuries and illnesses were imposing both a hindrance and a substantial burden upon interstate commerce, "in terms of lost production, wage loss, medical expenses, and disability compensation payments." 29 U.S.C. section 651(a). Based on the sheer magnitude of their numbers, injuries and deaths and their attendant costs which result from incidents of workplace violence clearly fall within the purview of this Congressional finding. Therefore, any initiative designed to reduce work-related injuries and deaths is consistent with this Congressional finding. These draft guidelines are such an initiative.

At the same time, Congress was mindful of the fact that state law, not federal, was intended to inform those principles of law which govern eligibility for payments of workers' compensation, and the liability of wrongdoers for personal injuries. Congress acknowledged this point when it stated categorically:

Nothing in this Act shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment. (Emphasis added). 29 U.S.C. section 4(b)(4)

As a matter of federal law, therefore, nothing in health or safety standards issued by OSHA under Section 6 of the Act, and certainly no informal guidelines of the kind involved here, determines the tort remedies available to injured workers. That matter is determined by the laws of the individual states. It is not our role at OSHA either to foster or to foil the efforts of plaintiffs' lawyers in state court proceedings. It is our responsibility, however, to undertake reasonable efforts "... to assure so far as possible every working man and woman in the Nation safe and healthful working conditions," and the issuance of informal, non-mandatory guidelines on recognized, but presently unregulated hazards, is undeniably within this statutory mandate.

Finally, as to the issue of stakeholder involvement, we would note that these draft guidelines, which are still a work in progress, were a collaborative effort which involved professionals from the Department of Labor, NIOSH, the states, industry groups, organized labor, and a victims' rights group. Meetings with these representatives were held to collect information on the issue and obtain comments on the draft; the guidelines were posted on the Internet to ensure the widest distribution possible, so that even those who did not attend these meetings could make their views known. As of October 4, the draft guidelines had been accessed 4,903 times by persons who may have an interest in commenting on them. At the end of the comment period, in response to requests for extensions of time from industry groups, the sixty (60) day period was extended for an additional ninety (90) days, through September 30. We would respectfully submit that this process was fully consistent with the New OSHA, and that the current draft exemplifies the spirit of cooperation and consultation between government, labor, industry and the employees we are duty-bound to protect.

As we hope the foregoing discussion has illustrated, these Guidelines are not intended to have the force and effect of rules which can only be promulgated after notice-and-comment, nor can they be enforced through Section 5(a)(1). We will endeavor to make this point even clearer in the final version of the guidelines. Consequently, we do not believe the Guidelines fall within the spirit or letter of the definition of "rule" in the Regulatory Flexibility Act, which would require an analysis of the economic impact on small business. Therefore, the agency did not conduct any studies of the economic consequences of the Guidelines.

With respect to the stakeholder meetings, we have held several meetings with interested parties, as indicated above. We are, however, aware that other stakeholders would like to participate and we are planning to conduct an additional meeting. That meeting is scheduled for November 4, and will be held here at the Department of Labor. In addition, we will continue to accept written comments through December 4.

Thank you for your interest in occupational safety and health, and for the opportunity to address your concerns.

Sincerely,


Joseph A. Dear
Assistant Secretary