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Reality Check: What effect will third-party reviews have on the IH community? [The Synergist / AIHA]

by Hope Katz Gibbs
The Synergist / American Industrial Hygiene Association
September 1998

The third-party review bill was back again this year. Introduced in 1997 by Republican Sen. Mike Enzi of Wyoming, the controversial Safety Advancement For Employees Act (aka, the SAFE Act), graced committee rooms and the floor of the 105th
Congress. But the bill lost key support in the spring of 1998.

However, the bill is likely to be back for a third time next year, says Chris Spear, a legislative assistant in Enzi’s office. Spear says Enzi might have a better chance of getting it passed in 1999 because the senator might have more power in Congress. He is next in line to chair a health and safety subcommittee.

Why is Enzi so determined to get the SAFE Act passed? He says American workers will be safer if individuals or organizations besides OSEIA perform inspections. Some industrial hygienists agree. Some don’t. All concur, however, that passage of a third-party review bill will have an impact on their professional lives.

THE GLASS IS HALF EMPTY

At worst, the bill wouldn’t protect the interests of outside third-party consultants, said David Kotelchuck in a Synergist Speak Out column in the February 1998 issue. In the column, the Hunter College faculty member wrote, “[The bill] does not provide [consultants] with legal protections such as limitations on liability against third-party lawsuits. The bill does not establish appeal procedures to protect consultants from arbitrary dismissal by the secretary of labor for failing to meet the requirements of the program.”

Other IHs worry who will be qualified to conduct third-party reviews.

Many consultants are concerned that those with little more than a high school education and a desire to make a buck would be competing for the auditing work that has exclusively gone to IHs.

However, the bill has found its supporters. For instance, AlHA’s government affairs specialist Aaron Trippler says third-party reviews will only bring additional business and have a positive effect on all IHs.

“Let’s be honest, third-party reviews would place our profession on the front line of worker health and safety even more so than today,” Trippler says. “Employers, employees and the public would recognize that the IH is a professional, qualified to monitor and improve worker health and safety.”

Tom Grumbles of CONDEA Vista in Houston says he welcomes a third-party review of his safety and health program.

“Many professions, in particular financial auditors, are faced with the same issues on a daily basis,” Grumbles says. “They use their professional training, experience and judgment to asses a company’s status vs. prescribed standards. I agree the potential ramifications for safety and health would have a different impact, but I would hope that our profession has the credibility and the professional standing to do this type of work. I disagree with those who are using this as a significant barrier.”

IT Corp. consultant Colleen M. Garlington is also in favor of third-party reviews. “There is a need for a corporate incentive to invest in compliance programs and professional environmental health and safety services,” says Garlington, who has been following the issue of third-party reviews. “But in the current business climate, when the threat of regulatory enforcement has been reduced and corporations are reducing staff and moving toward outsourcing, third-party reviews would generate an important new business line.”

Garlington says, however, that environmental health and safety professionals—especially corporate IHs—should do some prep work to ready management for the outcome of a third-party review.

“The consulting IH should point out where the company meets or exceeds the compliance requirements, as well as non-compliance items,” Garlington says. “Management should expect the consultant to point out noncompliance issues so they can be addressed.”

As professionally as third-party audits are handled though, Sage Environmental consultant Nancy Orr says she understands why the change to third-party reviews would be unsettling for many IHs.

“Corporate IHs are understandably upset as anyone would be who is having an outside ‘expert’ come in to evaluate their work,” says Orr. “It is human nature to resist criticism —however well-placed and tactfully delivered—about your work. Many corporate IHs have worked diligently to build world-class health and safety programs. I can understand why they are not eager to be evaluated by outsiders.

“And regardless of what everyone says, it can be very hard for an IH not to take a third-party review personally, especially in these days of downsizing. Who needs to have any shortcomings in your program highlighted to your manager? As for other groups within the IH community—such as those who represent unions and the government perspective—third-party reviews are an attempt to diminish the role of enforcement and further compromise worker protection at small businesses.”

WHAT TO DO?

So, what can be done to make all this more comfortable with third-party reviews? Orr suggests IHs take a different perspective on the issue.

“If you know your stuff, do a thorough job, and deliver the information to management, the entire process would become less antagonistic,” she says. “Besides, the reality of the situation is that most workplaces do not need to fear an OSHA inspection. The Enzi bill says employers will be motivated to sign up for third-party reviews because they will have an opportunity to learn of problems in their workplaces and fix them before OSHA comes in and fines them.

“I say let’s get real here. The employers who have not addressed health and safety in their shops, and have a legitimate reason to fear OSHA, are not about to get religion and sign up for third- party reviews to avoid fines. In my opinion, there is no real incentive to have a third-party review, so I don’t think they will be very popular,” Orr says.

“Now, do I think well-planned, consistently implemented third-party reviews would improve health and safety? Definitely. It would be like expanding the OSHA consultative service, which could be so much more useful to small businesses,” she says. Orr says guidelines would have to be developed to help ensure that businesses and regulations are looked at consistently and that on-site activities during reviews are the same in all cases, regardless of who performs them.

Tom McManus agrees guidelines are necessary. As president of the three-person Environmental Health Services consulting firm in Las Vegas, McManus says OSHA needs to beef up its enforcement policies to stay effective.

EPA has severe fines, and employers recognize that if they don’t comply, these high fines could put them out of business,” he says. “If you don’t have same threat from OSHA, if you don’t have strict enforcement, we could see a dramatic decline in the health and safety of our workforce.”

What’s more worrisome to McManus, and other consultants, is that competition created by third-party reviews would put IHs under pressure by employers to do inspections more cheaply—and with a pre-ordained outcome.

“IHs ultimately have to represent the worker,” he says. “But we work for companies and we have to make a living. Without effective control on what needs to be done regarding reviews and who can do them, there is room for unethical behavior. That’s potentially a big problem.”

Howard Spielman, president of Health Science Associates in California, has another concern. He worries that politics could get in the way of the intent of the third-party review bill.

“All the political baloney being kicked around about third-party reviews can be dangerous,” Spielman says. “Unless the statute is very strict on what qualification these third-party people will have, we could have a problem. After all, the devil is in the details. The laws will need to be very specific.”

And, says Tom Hethmon, director of Occupational Health & Safety at Phelps Dodge Corp., in Phoenix, Ariz., there is a real potential for a two-class system to evolve—those who can afford the consultants and those who can’t.

But Hethmon has a solution.

“Patience, tolerance, diplomacy, ability to communicate well, a strong ethical compass and sufficient technical competency will be needed to navigate this new arena,” Hethmon says. “And, most importantly, corporate IHs and the IH consultant must stay focused on their primary obligation—to protect workers.”

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"I get by with a little help from my friends," says Hope, who gives special thanks to:

• MICHAEL GIBBS, website illustration and design: www.michaelgibbs.com
• MAX KUKOY, website development: www.maxwebworks.com
• STEVE BARRETT, portrait of Hope on Bio page: www.stevebarrettphotography.com

Contact HOPE KATZ GIBBS by phone [703-346-6975] or email.

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