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July 1, 2013

A New OSHA Just Like the Tangled Old One

Doubtful promises of tougher enforcement and regulations

When President Richard Nixon signed the Occupational Safety and Health Act in 1970, he unleashed the force of the federal government on companies that placed their workers in harm’s way. With the new Occupational Safety and Health Administration (OSHA) in place, the message was: Employers beware. If that machine guardrail isn’t in place, if you don’t insist on safety glasses for your operators, if you ever turn off the ventilation or, God forbid, lock the exit doors, OSHA is coming to get you.

The agency’s combination of unannounced visits from inspectors, fines for violators and thousands of regulations seem to have had a salutary effect. Since the agency was established in the 1970s, workplace fatalities and occupational illnesses or injuries have declined by 65% and 67%, respectively. This while the number of workers protected has almost doubled, the agency says. The progress is significant considering that, today, OSHA has fewer than 1,200 inspectors to cover about 7.6 million workplaces—including 200,000 major construction sites, amounting to almost 6,500 sites per inspector. The U.S. Bureau of Labor Statistics reports that 4,609 people died from workplace injuries in 2011, down from a peak of 6,632 in 1994 for the period between 1992 and 2011. When OSHA was created, there were 13,800 annual work-related deaths. 

No one, of course, disputes the inestimable value of lives saved. What rankles the business community is the frequently bumbling manner in which the agency works. It slowly issues often impenetrable regulations, critics complain, while employing heavy-handed inspectors who may not understand the industries they are inspecting. 

Now the worry is that with President Barack Obama in his last term, things will be getting especially contentious at a “new” reinvigorated OSHA. With a re-elected president no longer having to prove his pro-business bona fides, the pressure now will be on employers, according to many consultants who advise businesses on upcoming regulations. They advise their clients to expect inspections to trend upward, enforcement to be more aggressive, new regulations to proliferate, and old ones to get new attention, including so-called “find and fix” measures requiring employers to proactively eliminate potential workplace hazards.

OSHA chief David Michaels, who would only provide a written statement to Forward, confirmed that assessment in a recent paper titled “OSHA: The Road Ahead.” The agency’s official spokesman, who refused to be identified by name, said the paper should not be considered Michaels’ statement of the agency’s agenda for the next four years.

“The OSHA law, now more than four decades old, is very clear,” writes Michaels, whose official title is assistant secretary of labor for occupational safety and health. “Employers have a responsibility to provide safe workplaces to their employees … the law gives us a range of tools and strategies, and we must apply them in ways that will be most effective.” 

No doubt there is plenty of existing law and regulation to level at employers. But a careful look at how the agency operates day to day coupled with serious new budget restraints show little evidence that there is, in fact, some “new” OSHA to be concerned about. 

 

A New Sheriff?

Talking to employers and employees about OSHA is like visiting parallel universes.

Those who run companies tend to view the agency as a kind of fussbudget federal meddler, quick with ill-advised criticisms and punitive measures. Unions and other employee groups see OSHA as being soft on violators and seemingly cozy with businesses. 

Under President George W. Bush, many of OSHA’s enforcement powers were de-fanged by the White House, and OSHA’s emphasis became one of voluntary compliance. The average OSHA penalties under Bush have more than doubled under Obama, according to the OSHA spokesman. Under Bush, the average penalty was less than $1,000, and most penalties were reduced when employers appealed. In addition, OSHA issued fewer significant standards than any other administration since the agency was created. 

“Stronger enforcement has been an option available to every OSHA administration for decades,” says Eric Frumin, director of health and safety for Change to Win, a Washington, D.C.-based national workers’ rights organization. “[And the Obama] administration did it.”

Political conservatives were riled when Obama’s newly appointed Secretary of Labor Hilda Solis, Michaels’ boss, proclaimed, “There is a new sheriff in town,” signaling the administration’s intention of using stern enforcement measures to ensure workplace safety. “Make no mistake, the Department of Labor is back in the enforcement business,” Solis added. “We are serious, very serious.” Obama, at press time, proposed to replace the retiring Solis with Thomas E. Perez, who heads the Civil Rights Division at the Department of Justice, a man already labeled a “radical” by conservatives and a welcomed activist by those who would like to see OSHA strengthen its act. 

To head OSHA, Obama brought in Michaels in 2009, an epidemiologist and research professor with a background in public health, whom the conservative newspaper Washington Times referred to in an editorial as “virulently anti-business.” He came with an agenda to beef up enforcement and revive OSHA’s standards-setting process. Michaels replaced Edwin Foulke, a lawyer who had worked for a South Carolina firm that specialized in helping businesses avoid union organizing. Michaels is apparently staying on as OSHA chief for the second Obama term. 

 

An Elusive Enforcement Blitz

When Michaels was confirmed, business heads and their allies in Congress prepared for a blitz of far-reaching enforcement cases and new regulations—an activist program which, by the start of the second Obama term, had not quite materialized.

True, OSHA has beefed up its inspection staff and played an important role in the Justice Department handing out one of the largest criminal and civil fines and penalties in the agency’s history. That came in the $4.5 billion settlement with BP Exploration and Production, for the Deepwater Horizon Gulf of Mexico oil blowout that killed 11 people. The Obama administration did raise OSHA’s budget, last year by an average of $75 million a year over what the Bush administration had been allotting, to a total of $565 million. Now, however, even though its new budget had not been completed at press time, the agency by all accounts stood to take a severe hit under “sequestration.” Adding to its enforcement limitations, the federal agency is, consequently, increasingly reliant on budget-starved state safety programs, with 26 states running their own versions of OSHA.  

More than that, the agency’s proposed bold new standards—including workplace noise standards in 2010, airborne standards for crystalline silica in 2002, and protections against ergonomic-related injuries in 2000—have largely been thwarted by lobbying campaigns, litigation and Republican congressional resistance. 

So far under Michaels, OSHA has succeeded in promulgating only two new sets of standards, relating to the use of derricks and cranes, and rules for preventing falls for those working on roofs and other sites more than six feet above ground. Both measures had been in the pipeline for years, with the fall protection plan having been under discussion for about two decades.

 

An Inconsistent Nuisance?

Nevertheless, business groups say OSHA’s way of regulating remains burdensome and obstructive, imposing fines for often arbitrary rules. There’s an unpredictability to the message employers get from OSHA, says U.S. Rep. Tim Walberg of Michigan, who chairs the House Subcommittee on Workforce Protections.

“An inspector shows up one day and says, ‘This ladder is in the wrong place,’” Walberg explains. “After the appropriate fine is paid and the ladder moved, another inspector shows up and says, ‘Why’s that ladder here? It should be over there.’”

It’s a complaint that was echoed by several plant managers interviewed by Forward. There are too many “out of the blue” regulations, too much “inconsistency,” they say. When there are no formally adopted standards that are applicable to a particular workplace situation, inspectors may haul out the catch-all “general duty clause,” which requires employers to provide a safe workplace no matter what kind of plant is being inspected. The clause, in part, states:

Each employer shall furnish to each of his employees employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

Aside from fines for one-time violations of any of OSHA’s volumes of rules, business groups say, it’s costly just to stay in compliance. For example, the regulation proposed to decrease airborne levels of crystalline silica in workplaces will cost affected industries $5.5 billion a year, says an alliance of business groups that include the National Association of Manufacturers and the Steel Manufacturers Association. Crystalline silica is quartz or other minerals found in sand, soil and granite. When it is ground or blasted by stonecutters, foundry workers or those who tunnel, the result is a fine silica dust, which can be a carcinogen or the cause of lung diseases like silicosis.

OSHA contends that whatever it costs to bring a workplace to compliance is more than made up for in savings from what an employer would lose from sick or injured workers. Recent studies published in scientific journals seem to confirm that analysis. For example, a study by Harvard, the University of California, Berkeley, Haas Business School and Boston University, published in Science last year, showed that workplace injury claims dropped 9.4% at businesses in the four years following randomized OSHA inspections, compared to employers who were not inspected, saving the average inspected employer an estimated $355,000 for the period. “Employers who are inspected by OSHA generally see cost savings exceeding any penalties levied by inspectors,” Michaels wrote in a column for the American Journal of Industrial Medicine.

But employer groups, such as NAM, are adamant: The process of regulation threatens to stifle free enterprise and force businesses to shut their doors, they insist, citing, among other things, a study sponsored by the Small Business Administration showing that employers with fewer than 20 workers pay about $10,585 extra per employee each year to cover federal regulations (though that’s disputed by labor unions).

While “the chattering classes” (as one OSHA critic refers to media pundits, economists and other analysts) debate the pluses and minuses of OSHA regulation, those who actually oversee production lines or distribution networks mostly just find OSHA to be an annoyance.

Does OSHA regulation threaten their futures? Not really, say plant managers. Is it “onerous”? Mostly an annoying diversion, they say. In some cases—for those who are energized by safety issues associated with their own plants—OSHA can even be a welcome challenge, a spur to stay alert to potential hazards.

 

On the Line With OSHA

David Sheer, vice president and general manager of The Steel Supply Company in Fox Lake, Illinois, says as part of the new find-and-fix drive, OSHA officials recently required him to compile an inventory of every piece of machinery in his 82-employee shop—from the hot water heat-up to side loaders and band saws—along with recommended safety measures for each.

“It was pretty complex,” Sheer says. “It took seven months to complete it. Just for the saws, there are 50 or 60 types, from hand saws to band saws. We had to go into the manufacturer’s suggested safety requirements, especially with the machines.” The final result made Sheer’s plant, in OSHA jargon, “29 CFR 1910 compliant,” referring to the official find-and-fix standard.

Sheer’s plant uses a wide variety of cutting and loading devices, as well as ladders—“the item most responsible for accidents,” he says.

All The Steel Supply Company’s machine operators are now required to sign off on the safety requirements of the machines they operate. That includes forklift operations, which OSHA inspectors once found to be noncompliant at his plant, Sheer says. “Now, all of our forklift operators are licensed,” he says. “And on any sit-down forklift, they have to use a seat belt.” 

Trisha Endsley, health and safety manager at Bremen Castings in Bremen, Indiana, says she welcomes OSHA’s attention to safety procedures like “lock-out/tag-out,” when a machine operator steps away from the controls. OSHA regulations require operators to lock the machine—sometimes using a padlock—and to leave their own identity tag there to show who’s working on the machine.

Skipping this procedure has resulted in numerous American workplace deaths, says Endsley, who has worked for Bremen for 18 years. “If an employee has to step away to do routine cleaning of a piece of equipment, another person could hit the start button and crush the operator,” she says. 

Bremen’s plant uses a variety of massive machines, including melters, molders and other computer-    controlled metal-shaping devices, all of which present possible dangers to plant workers if they are unsafely operated. OSHA has been instrumental in ensuring that procedures like lock-out/tag-out are observed industry-wide, says Endsley, whose company plant recently reached 1 million hours of operation without a lost-time accident. 

If anything, OSHA is less rigorous than it should be, contends Dean Linders, vice president of marketing and sales for Red Bud Industries, which manufactures and services huge metal-cutting machines in Red Bud, Illinois.

OSHA generally offers “a minimal, fairly vague set of guidelines” when it comes to the kinds of huge, potentially dangerous slicing and slitting machines that Red Bud produces. OSHA dictates lock-out/tag-out, Linders says, but doesn’t get into the specifics.

“They don’t really specify what you have to do to guard all different types of machines,” he says. West European and Australian safety regulations, on the other hand, are much more stringent than OSHA’s, Linders says.

For managers who have to deal with the sometimes-daunting details of preventing a myriad of worst-case scenarios in the workplace, OSHA’s demands can seem arbitrary and high on the nuisance scale. 

So, was the “29 CFR 1910” gauntlet one of those time- and energy-wasting exercises that business lobbyists claim is dragging down American free enterprise? Sheer estimates his total compliance cost was around $30,000. But he also says he has used the research for in-plant training. Not a waste of time, he says, but “useful.” 

 

The Workers’ View: Injury and Death

OSHA critics who promote workers’ rights say the agency has been far too lenient with the worst violators, including some shops that have produced multiple injuries and deaths. The explosion at a West, Texas, fertilizer plant in April, killing 14 people including 10 firefighters, offers a glimpse of how hazardous workplace situations fall through the regulatory cracks.

While OSHA was just one of at least four oversight agencies responsible for identifying and removing such hazards as those in the Texas plant, it’s clear that it was far down any list of OSHA priorities. An OSHA inspector had not visited the plant in 28 years. The plant contained 270 tons of ammonium nitrate, a highly combustible fertilizer.

The explosion immediately qualified West, Texas, as one of the top five U.S. industrial accidents of the past decade. This includes the 2005 Texas City explosion at a BP refinery that left 15 dead and 180 injured; the 2006 explosion and collapse of a Sago, West Virginia, coal mine that left 12 dead; the 2007 collapse of a Crandall Canyon, Utah, coal mine that left six miners, two rescuers and an inspector dead; and the 2010 explosion of the Deepwater Horizon drilling rig in the Gulf of Mexico that left 11 dead and resulted in at least 4.9 million barrels of oil spilling into the Gulf of Mexico.  

OSHA activity has been fertile ground for investigative journalists, producing two Pulitzer Prizes since 2003, one for The New York Times, the other for the Las Vegas Sun. The Las Vegas Sun won for an investigation of construction deaths on the Las Vegas Strip, and The New York Times shared a Pulitzer with PBS’ “Frontline” for its expose of work conditions at an Alabama pipe manufacturer. Earlier this year, another contender for the Pulitzer appeared in The New York  Times. This was a story about the health hazards from fumes associated with a type of glue used by a North Carolina furniture maker to attach pieces of foam to form chair and sofa cushions. 

Workers at Royale Comfort Seating suffered neurological damage because they were exposed to chemicals from the glue at levels far above what manufacturers of the glue and federal regulators deemed safe. The company also failed to provide respirators to screen out fumes and adequate ventilation, OSHA records showed. 

Presented with the dilemma of establishing standards of exposure to hazardous substances used in American plants, and forcing employers to proceed in a safe manner, OSHA officials express frustration. Michaels told The New York Times: “I’m the first to admit this is broken.”

Michaels has conceded elsewhere in letters to OSHA employees, while the agency has been quick to protect workers against accidental injuries, it falls short in acting on health hazards like dangerous chemicals. “We have no Permissible Exposure Limit [PEL] for most of the thousands of chemicals used in American workplaces, and the vast majority of PELs date from the 1960s or earlier,” he writes.

 

The Penalty Dance

At the same time, the agency’s influence on employers has been hamstrung by what many, including Michaels, see as a negligible penalty schedule. The maximum amounts that OSHA officials can fine a delinquent employer—$7,000 for a serious violation and $70,000 for a “willful” violation (when an employer willfully disregards prior warnings)—have not been updated since 1970, not even to adjust for inflation. 

“Unscrupulous employers often consider it more cost-effective to pay the minimal OSHA penalty and continue to operate an unsafe workplace than to correct the underlying health and safety problem,” Michaels told the House Subcommittee on Workforce Protections in March 2010. “The current penalties do not provide an adequate deterrent.”

Other federal regulatory agencies get the attention of violators with fines that are potentially more substantial. For example, the EPA can demand up to $270,000 from those who violate the Clean Air Act. 

Broadcasters can be hit with fines from the Federal Communications Commission of up to $325,000 for instances of on-air indecency.

“For years, the average OSHA penalty was $1,000,” says Frumin of Change to Win. Under Obama’s OSHA, however, fines for repeat violators suddenly increased. “Penalties for [repeat] violators shot up as high as $50,000 to $60,000. Combined with the new policy of sending out press releases when there were high citations, violators started to pay more attention,” Frumin says. 

To carry out its mission, OSHA runs a number of support endeavors, including Voluntary Protection Programs, with plant managers, workers and OSHA officials working together to develop safety and health management systems. OSHA also runs the Whistleblower Protection Program to assist workers who have been retaliated against for filing complaints about hazards in their own workplaces. The agency offers free on-site consultations for small and medium-sized businesses, particularly those that work in high-hazard sites.

There is little question that OSHA has a significant credibility gap both in the business community and among workplace safety activists. The numbers do show increasing year-over-year improvement in incidents of workplace deaths and injury. But when devastating accidents happen, they too often prove to have been entirely avoidable and further proof that OSHA is not doing the job it has been given. With the ongoing policy and budget gridlock in Washington, D.C., it seems safe to predict that neither the business community, nor safety activists will see much change in the foreseeable future.


Edmund Newton is a Washington, D.C.-based writer, formerly of the L.A. Times, Newsday and the New York Post, as well as the former managing editor of New Times-Broward Palm Beach. He has written for, among others, The New York Times, Time, People, Daily News Sunday Magazine, Black Enterprise, the Ladies’ Home Journal, Essence and Audubon.