HOW DO WE TREAT OUR HEROES?
“So we are embarking upon something perhaps new and novel, because I am suggesting that we are going to now legislate common sense into the federal government.”
Can these words uttered by U.S. Senator Dirk Kempthorne of Idaho be the sign of a new movement in Washington?
Kempthorne’s proposed amendment to the Occupational Safety and Health Act, entitled “Heroic Efforts to Rescue Others (HERO) Act,” breathes some rational thinking into the OSH Act, which the senator sees as discouraging acts of heroism in the workplace and in that vein has termed “absurd regulation.”
Kempthorne’s legislative action was prompted by a 1993 incident in Boise in which two plumbing company employees saved the life ol a construction worker buried in a collapsed trench at the plumbing company site. OSHA fined the plumbing company because, among other violations, the heroic employees forgot to get properly trained and wear helmets before entering the space. (The fine subsequently was rescinded by OSHA after much ado.)
The HERO Act would exempt employers from the OSHA gavel should the plumber or the assembly-line worker perform well above and beyond his job responsibilities and save a life in imminent danger. It would not apply to cases in which the employee’s job duties included rescue activities that is to say, cases involving fire brigade members or municipal firefighters.
Why not? The proposed law implies that for untrained heroes, the end justifies the means; trained heroes—firefighters—should know better. That logic was endorsed by the U.S. senators who voted unanimously for the bill. What they failed to realize is that the logic collapses the fundamental intent of OSHA’s rescue-regulating.
With respect to rescue operations. OSHA is not oriented toward the victim, but to the rescuer—a potential victim. It is aggressive in its purpose that rescuers not become victims themselves, imposing restrictions on rescue operations to achieve that aim. It is geared in principle not to risk reduction but to risk elimination. Therein lies the basic problem between those in business suits who make the laws and those in turnout suits who make the saves: Firefighters, oriented toward the victim, assume a certain level of acceptable risk based on the circumstances of the particular rescue operation. Their training allows them to do so. For firelighters, on-scene risk analysis -not a passage out of the Federal Register-—determines what is reasonably safe and w hat is not at that particular moment.
The HERO Act, however, casts doubt on the fundamental rescuerorientation of OSHA. Heroism, in this context, is defined by the outcome or the intent, not the method. If that’s true—and if we accept Kempthorne’s words, quoted in Occupational Safety & Health Reporter, that his legislation “allows an exemption that, when a heroic act takes place and is done to save a life, we do not have to abide strictly by the letter of the law but that we can interpret the spirit of the law. because that is how we ought to treat heroes”—then are we not to question w hy firefighters, most of all. should not receive the same latitude by the law? Does the definition of heroism change with the level of expertise or availability of resources? With a job description?
As it stands, the firefighter, who in recent times has become a favorite target of Washington overregulators, must abide the ubiquitous OSHA law to the letter, in most cases regardless of extenuating circumstances. And the sphere of OSHA influence on rescue operations is only getting bigger. Were Capitol Hill and surrounding environs not so overrun with individuals intoxicated by their arrogant genius for protecting you from yourself, the fire service might not be headed on a path in which the only hope for a “legal” rescue will lie with civilian bystanders exempted by a “hero” law.
It is not bad enough that the federal lawmakers believe it is necessary—and constitutionally defensible—to overregulate the fire service and threaten fire departments with financial retaliation should human error throw a rescue operation outside the tight geometry of what is “legal.” It is not bad enough that some think it possible and practical to regulate a rescue from afar.
Now the “new OSHA”—COSHRA, currently in the federal overregulatory meat grinder—will make on-scene fire officers criminally and civilly liable for their operational decisions. It will make the fire department responsible not just for its own personnel but for firefighters from other jurisdictions called in on mutual aid. Soon, perhaps, you will truly, literally be damned if you do and damned if you don’t.
COSHRA, if passed in its existing form, will cast piranhas of the legal establishment into a fire service feeding frenzy. It will throw strategic and tactical decisions on the fireground in serious doubt (How could it be the “right” decision, the prosecuting attorney will argue, when a firefighter gets badly injured or killed?). It will make the decision maker the enemy, not the fire. It will penalize fire officers for doing their job. or result in deaths that might have been saved had the officer felt free to act without fear of the law. It will turn a fireground fall into a criminal case. It will pit firefighter against fire officer, union against management. It will open the gates for a flood of second-guessing. It will cost fire departments and taxpayers and individuals untold millions in legal costs. It will place the fate of individuals and their families in the hands of selfproclaimed experts who pitch their opinions far from the rescue scene. Remember the 1984 New Jersey Great Adventure haunted castle fire that killed eight teenagers, after which so-called experts testified that automatic sprinklers wouldn’t have made a difference? it will get worse. An expert for every outcome.
Let us truly bring common sense to this legislative orgy. Let us enact laws that make it possible to punish strongly irresponsible behavior and willful violators of universally acknowledged safety standards, but let us not bring the law to bear on those heroes who abide the spirit of the law but whose only fault is their humanness. Let us use the law to benefit, not to tear down. Let us build our law s such that we support the rescuer, not work against him.
Surely, our heroes deserve at least that.