OSHA at 35: Your Comments Welcome

By Michael Silverstein

Thirty-five years after the passage of the Occupational Safety and Health Act, the promise of worker protection remains substantially unfulfilled. Over the past several months, I have been traveling across the country and talking with people experienced in worker health and safety to gather ideas about what we can do to protect workers better. The more I hear, the more I am certain that we can’t achieve this by simply trying harder to do more of the same.

The draft paper “Getting Home Safe and Sound? OSHA at Thirty-Five” summarizes what I’ve learned and suggests three main areas for change: stronger and more creative implementation of the OSHAct; statutory improvements to the OSHAct; and a variety of measures outside the OSHA framework.  I hope that this paper will touch off productive discussion and catalyze action to improve worker health and safety. Before completing the paper, though, I’d like to open it up to online readers for comment.


The draft paper is posted online at DefendingScience.org, and I encourage anyone interested in the topic to download it, read it, and join the discussion about it on this blog. You can leave a comment in the comment section below, or email it to thepumphandle [at] gmail [dot] com. (If your comments are specific editing suggestions, please send them via email rather than leaving a comment.) Also, if you’d like to write a separate blog post on a topic related to the paper, please email us with your proposed topic.

A bit more about the paper: It lists numerous possible improvements proposed by many individuals and organizations over the years.  However, even with the best list of reforms in hand and the best people in key leadership positions, success will be beyond reach without significant change in the political landscape so that worker protection becomes a much higher and more visible national priority.   The paper suggests several measures to help achieve this change: reframing the language of worker protection to link it with broad resonant themes of health and human rights; assembling coalitions around issues of shared importance to labor and environmental groups, community organizations and public health professionals; building an institutional infrastructure; and strengthening our scientific base.  

The paper’s conclusion forgoes a long shopping list in favor of a much more limited set of principles, priorities and plans.  This is rooted in the belief that accomplishing change requires sharp focus by multiple parties on a common set of objectives so that energies can be concentrated and coordinated instead of diffused.  While the entire paper is a draft and its list of principles, priorities and plans is a working proposal, I believe that improvements should be along the lines of achieving a more compelling and better articulated short list rather than expanding into a more inclusive longer one. 

This paper is relatively silent on several important subjects.  It is focused on OSHA, with little attention given to the Mine Safety and Health Administration, the National Institute for Occupational Safety and Health, systems for worker protection in countries other than the U.S., and a critical consideration of avenues for worker protection outside the OSHA umbrella such as workers’ compensation or tort litigation.  This is partly a matter of time and resources and partly a conscious decision to avoid an encyclopedic approach that might be interesting but overwhelming.   

While I accept responsibility for the content of this draft, I need to acknowledge that many of the best ideas came through lengthy discussions and meetings with numerous friends and colleagues.  I have not appended a list of all those who have been part of the preliminary discussions but intend to do this with the final version. 

So, please share your suggestions for improving the paper and thoughts on next steps. You can leave a comment below* or email thepumphandle [at] gmail [dot] com. If this comment thread gets too full, or if the discussion seems to be splitting off in multiple different directions, we’ll add new posts to continue the discussion.

Michael Silverstein, MD, MPH is a Clinical Professor of Environmental and Occupational Health at the University of Washington School of Public Health. He has served as Assistant Director for Industrial Safety and Health with the Washington State Department of Labor & Industries (1997 – 2005); Director of Policy for the US Occupational Safety & Health Administration (1993 – 1995); and Assistant Director for the Occupational Health and Safety Department of the United Automobile Workers Union in Detroit, Michigan (1976 – 1990). Dr. Silverstein received his MD from Stanford Medical School, MPH from the University of Michigan, and AB from Harvard College. He is board certified as a specialist in occupational health and has also practiced family medicine.

* We’re using comment moderation to prevent comment spam, so your comments may not appear immediately after you post them.

Update: Discussion continues here.

Comments

  1. #1 David Michaels
    January 9, 2007

    Michael has done a terrific job providing some history of OSHA and in suggesting some ways in which we can work to ensure that OSHA’s promise – a safe workplace for all American workers – is fulfilled.

    I want to comment on Michael’s recommendation that OSHA “adopt a generic rule requiring every employer to implement comprehensive a safety and health management program which is effective in reducing workplace injuries and illnesses, including meaningful worker participation, exposure monitoring, medical surveillance, and a hierarchy of controls.”

    I think having employers take active responsibility for surveying the hazards at their facilities and coming up with ways to control the hazards is an excellent first step.

    It is badly needed because, even if OSHA were functioning well (and it certainly isn’t), the current system that requires standard setting hazard by hazard, chemical by chemical, just does not, and cannot work.

    Remember, when Congress enacted the OSHA law in 1970, it believed the new agency would adopt private industry consensus standards as a stopgap measure only, then issue new standards based on current research. But in the late 1980s, when the agency tried to update several hundred workplace exposure standards all at once, it generally selected newer industry voluntary standards which were not necessarily as protective as a strong public health agency might require.

    Even so, industry groups took OSHA to federal court, which ruled in 1992 that health standards had to be issued one chemical at a time. This would be a painfully time- and resource-intensive process for any agency. OSHA doesn’t have the staff to work on more than one or two standards at a time, and each standard takes years to complete. In the last ten years, OSHA has issued three new standards covering toxic substances (one of which — Chromium 6 -was required by a federal court ruling), plus its ergonomic standard that was repealed by Congress in 2001.

    I believe that OSHA doesn’t need a new standards if a hazard is serious and there are recognized measure to mitigate the hazard. It can invoke the “general duty clause,” but the agency has refused to do so. As things stand now: No standard, no responsibility. This works out nicely for the employers. Absurd examples abound. In Confined Space, Jordan Barab wrote about an incident in which a zoo employee was severely mauled by a black bear who escaped after its den was left unlocked. link OSHA inspectors concluded that no citation could be issued, since OSHA has never issued a regulation saying that bears should be prevented from escaping their dens—as if that should be necessary. (Then again, the idea that OSHA might ever issue a citation is not relevant at most American workplaces, given OSHA’s current staffing numbers).

    So require employers to come up with a plan. Write the regulations so that workers and their unions can have input (it is worth discussing the roles and responsibilities in this case). And make it so an employer can be cited for not having a plan and, if they don’t follow it, for that too.

  2. #2 Eric Frumin
    January 9, 2007

    I appreciate Mike’s diligence and intelligence and welcome this opportunity to involve the H&S community as a whole.
    However, I encourage all commenters to pay attention to the fact that our discussion is public.
    Which means that the ever-vigilant strategists of the corporate right-wing, who have successfully obstructed – politically, legally and otherwise — much of what the OSHAct was intended to accomplish, are also watching us carefully. They will be more than happy to use whatever we say here if it suits their purposes.

    So please submit your comments accordingly, and consider the wisdom of denying our enemy the ammunition to further harm us.

  3. #3 David Michaels
    January 9, 2007

    Eric is correct in saying that those who oppose safe workplace regulation will try to use whatever means they can to obstruct efforts to strengthen OSHA.

    However, a discussion involving a wide range of people concerned about safe workplaces (and I include in this group not just worker advocates but also many corporate safety and heath professionals and managers, along with agency staff) is one which should take place in a public and with wide participation. And this is a discussion that, in my view, badly needs to take place.

    Also, please keep in mind that you can post comments anonymously.

  4. #4 Michael Silverstein
    January 9, 2007

    Having experienced the intensity of the political battles around OSHA I appreciate Eric’s cautionary note. However, any concerns I have about this are outweighed by the potential value of open dialogue that captures the phenomenal power of the Internet.

    I share David’s belief about the value of a generic safety and health program rule, but I don’t think it would accomplish much without a plan for ensuring widespread compliance that is more robust than the current system of infrequent and relatively ineffective OSHA inspections. A requirement for annual (or at least periodic) inspections or audits at every workplace to certify that program commitments have been met and that recognized hazards are being addressed is also needed. However, OSHA (and the state plans) simply do not (and never will) have close to enough inspectors to do this. That’s why I would like to have a thorough discussion about the pros and cons of private inspectors, with OSHA oversight. It is an idea I was opposed to several years ago but have now come to believe might work with proper checks and balances.

  5. #5 Liz Borkowski
    January 10, 2007

    With regards to having private inspectors conduct regular inspection and certification, I noticed that one of the discussion questions from the paper gave some models to consider:

    “Are there ways that 3rd party systems for inspecting and certifying safe workplaces might be successful? What about these models?
    * “Licensed site professionals” who audit hazardous waste sites under
    remediation with oversight by state environmental agencies.
    * SEC auditing is done by private inspectors.
    * Third party facilities certification under the Mammography Quality Standard Act.
    * Third party inspections for the Joint Commission on Hospital Accreditation.”

    These all have different strengths as models. I expect that the biggest gap will be between voluntary and mandatory programs, because voluntary programs will tend to set a higher bar and be designed to handle a relatively small percentage of the businesses that fall within their sectors.

    SEC auditing might be an interesting model to consider, because it’s mandatory and covers all publicly traded companies, and I assume we’d want worker safety certification to be applicable to a similarly large pool of workplaces.

    The SEC website has a summary of how the auditing process works. Basically, the company’s management prepares the financial statements and then submits them to an independent certified public accountant, who “examines the company’s financial statements and provides a written report that contains an opinion as to whether the financial statements are fairly stated and comply in all material respects with GAAP [Generally Accepted Accounting Principles].”

    I don’t know a whole lot about the accounting profession, but I imagine that CPAs and GAAP play roles far beyond what’s involved in SEC-required audits, and existed before these requirements were in place. Does any kind of analogous infrastructure exist in workplace health and safety?

    After the corporate accounting scandals highlighted problems with existing auditing procedures, the Sarbanes-Oxley Act created the Public Company Accounting Oversight Board, a private-sector nonprofit corporation that oversees auditors. The PCAOB is, in turn, subject to SEC oversight. Workplace safety inspectors would probably need something analogous to the PCAOB, which would be subject to OSHA oversight.

    I expect that workplace inspection would be even more challenging than financial statement auditing because inspection would require visits to
    physical workplace locations. Also, would different kinds of workplaces
    (factories, farms, offices, etc.) require different standards, or would
    it be possible to write standards that can apply to all workplaces?

  6. #6 Becky Foster
    January 10, 2007

    Thank you for bringing attention to workers safety. Our family has been thru a nightmare due to a company’s negiligence in workplace safety. Our young 19 yr old son was killed on Oct 1 2004 while working at an Arkkansas sawmill. The cause of death was found by OSHA investigation to be the direct result of equipment modifications that were done against OSHA regulations.
    You would think that a large fine would be imposed in order to encourage companies to be in compliance, .. but no. This company was fined only $2250.
    What good is it to have regulations if a company is only going to get a very small fine for an employees death ?
    We need stricter penalties for companies that are negligent. We also need better state laws in place that do not protect a company from legal action when a negligent death occurs.
    The company that killed our son paid their $2250 fine, sent flowers to the funeral (a service that they did not pay for) and they walked away.
    beckfost@yahoo.com
    http://spewingforth.blogspot.com/2006/11/walking-away-from-negligent-homicide.html
    Thank you for the opportunity to comment.

  7. #7 Michael Silverstein
    January 10, 2007

    Liz Borkowski makes the excellent point that the SEC system is a good model to examine because the audits are mandatory and the system is designed to cover a large pool of workplaces. The fact that the scandals erupted despite the audit requirements indicates how rigorous the checks and balances for such a system need to be.

    Pressure vessel (boiler) inspections in the State of Washington are done by insurance companies with oversight and regulation by the State. Does anyone have experience with systems like this? Could insurance companies play such a role in safety and health inspections without being “captured” by the companies that buy their policies??

    I very much appreciate Becky Foster’s insight, based on terrible personal experience. This is exactly why I wrote the draft paper – we have had a safety and health system in place for 35 years that does not send the right signals to employers about the consequences for placing workers at risk. While bigger penalties are certainly needed it is not clear to me that doubling the penalty formula or hiring double the number of OSHA inspectors is going to make a big enough difference. Mine worker fatalities were significantly reduced after MSHA required mine inspections four times a year. Would something similar for OSHA make a difference? And, if so, how could it be done without hiring an impractically large number of government inspectors? Also, what about making it easier for prosecutors to prove criminal negligence when a safety rule has been violated and a worker has died as a result? Only a small number of employers have been jailed following willful violations resulting in worker deaths. Does anyone know whether these cases have had rippling effects on the behavior of other employers? Do they work as examples?

  8. #8 Dennis Thorn
    January 11, 2007

    Before anything can meaningful can be accomplished, politics
    must be eliminated from dictating OSHA policy. The Ergonomics Standard was a perfect example. Industry didn’t
    want it so Bush eliminated it. OSHA cannot be used as a political football and effectively protect workers. Industry will not volunteer to provide a safe and healthful workplace unless pressure is brought to bear. The politicians need to arm OSHA with the power to bring and sustain this pressure upon errant employers. Once the politicians provide OSHA with the power and autonomy to do the job, they need to bow out and let OSHA do the job.

  9. #9 Donald Coit Smith
    January 11, 2007

    11 Jan. 07
    Dr. Silverstein has made some extremely valid points in this plan. They are well within achievement given a proper setting. However, as most aptly put, it is a political arena that is being shown and I believe until the politics are dealt with no true improvement in worker safety can be achieved. I say politics because employer/insurance PAC’s (among others) are so strong in this day and age that the “influence” exerted on politicians is enormous. I think back scratching is common and expected.

    I read (page 12 of the report) about the Meat and Poultry industries putting workers at predictable risk even though means to prevent the risk are known and feasible. Then the lack of OSHA deterrent (p.20), Exclusive Remedy, and lack of tort action (p. 35) makes employers unafraid (from a financial and legal standpoint) to withhold safety services/practices in a cost vs. results analysis. That only supports, in my opinion, compliance under a Sarbanes-Oxley type provision and removal of misdemeanors in favor of at least felony manslaughter (death cases). Allow District Attorneys to proceed and we’ll see improved results. But that won’t happen until state comp bars are revised and criteria for negligence is modified. Then national OSHA penalties should be increased significantly.

    I would support 3rd party inspections for seveal reasons. First, being trained by OSHA would in effect, allow for more “OSHA inspectors” in the field. Second, the program would/should be funded by employers thereby not putting an undue burden on govenment funds. Third, by allowing a disinterested party in the mix, more reasonable and practical inspections may locate trouble spots and hopefully decrease the number of injuries/deaths which happen due to pure neglect.

    Having multiple years dealing with state comp and OSHA, I’ve seen the problems in both systems… or a more appropriate wording may be inequities. I feel our elected officials have sold out the voters in making supposedly employee based law more in line with what employers want… because it’s “good for business”.

    This is all for me at this time.

    I pray Dr. Silverstein is successful.

    DCS

  10. #10 Jordan Barab
    January 12, 2007

    I will probably have more than a few contributions to this discussion, so I’ll break them up into pieces. Michael asks “How can we bring workplace safety and health to the forefront of public attention, linking it with the broad, resonant themes of the American experience and the American myth – opportunity, self expression, family, fairness and justice? ”

    There are two vitally important groups that need to be educated and activated in order to accomplish this goal: families of workers killed and seriously injured in the workplace, and journalists.

    Families of workers: Almost 6,000 workers are killed in the workplace each year and many tens of thousands more permanently disabled. The families and friends of these workers are obviously left grieving as any family would be when they lose a loved one. But they’re also left angry, frustrated and powerless against a system that seems not to have valued the life of their loved one, a system that hasn’t really identified (or even sought) the real root causes of the tragedy, a system that fails to bring the individuals or the institutions at fault to justice. These families can potentially form a potent political force fighting for workplace safety and workplace justice. They themselves are rarely politically sophisticated enough, or politically connected enough (e.g. through unions, COSH groups, etc) to know what actions they can take following the death or serious injury of a loved one. And even where they are represented by unions, they are often forgotten or ignored. Even where they’re motivated, the tools they need to stimulate political action are difficult to identify and use effectively.

    Journalists: I’ve written extensively about the sorry state of reporting about workplace injuries, illnesses and fatalities. This failure is a significant contribution to the view that workplace fatalities are “freak accidents” or “just one of those unfortunate things.” Rarely do reporters look for the root (or even obvious) causes of workplace “accidents.” Rarely do they look at the regulations or best practices that have been violated. Rarely do they talk to co-workers to find out if there had been previous safety problems and warnings. Rarely do they even look at the companies past record. We’ve seen a hint of change at least in the mining sector as a result of Sago, but the vast majority of American workers who are killed in the workplace, still die in ones or twos, barely mentioned in the local newspaper, and soon forgotten.

    We (health and safety activists) need to make a concerted effort to find the families of those killed in the workplace and involve them in the political process. Every Congressman and Senator in the country needs to know every time one of his or her constituents is killed in the workplace, and needs to be confronted about why s/he isn’t doing anything about it.

    We need to educate journalists at every opportunity through letters to individual journalists, letters to the editor, and presentations at conferences and journalism schools.

  11. #11 Jordan Barab
    January 12, 2007

    There’s a lot to be said about independent third-party audits. Let me start with a few questions. Assuming there is some way to develop a system of auditors that is not under the influence of the employers who hire them, there are some other questions that need to be answered.

    1. Would the audit results be publicly available — or at least avialable to workers/unions/worker representatives?

    2. Would the audit cover issues not subject to OSHA standards? How could that be determined, monitored and enforced. What about chemical exposure limits?

    3. Would audit results be available to OSHA inspectors? In the event of a death or injury due to an issue identified in the audit, would the audit be grounds for a willful citation or criminal prosecution? In such an even, would the audit results be available to family members?

    4. Assuming employees gained a private right of action (as Michael suggests), could the audit results be used?

    5. How could we ensure that there was adequate funding, personnel and resources to effectively audit the auditors? (Particularly given our seeming inability to even audit the accuracy or current workplace injury and illness numbers.)

    6. Why would employers (or more accurately, business associations) or the courts ever agree to any of this? What legislative changes would be need to overcome any legal challenges?

  12. #12 Jim Blando
    January 12, 2007

    I want to thank Dr. Silverstein for the opportunity to comment on a draft paper and participate in a discussion of great importance. The draft paper is very interesting and important. In regards to the specific discussion questions, I would offer the following comments for whatever they’re worth.

    1) public attention: I have always found the public (i.e. the voters), and hence the politicians that drive the system, to very much need to understand that a particular issue relates directly to their life. When the public can not relate an issue to their life but only to someone else’s life they are less interested and less motivated for change. The problem I have seen with occupational health is that too often public attention and discussion is often parsed out into specific categories or a specific event, such as a problem in a specific workplace. A story about ergonomic problems in meat packers will not be of great interest to the general public if it fails to highlight the fact that all workers (including the person reading the story) potentially have ergonomic problems that could impact their health and therefore impact their ability to earn a living. Lots of environmental issues and public attention seem to hit “closer to home” for the general public.

    2) Framing the issue: I believe you should frame the issue based on who you are talking to, if you are talking to the general public frame it as a public health issue, if you’re talking to union workers frame it as labor issue, if you’re talking to a politician frame it as an economic and public relations issue. I think we must always remember that we have to sell the ideas to someone beyond ourselves to be successful.

    3) Incentives: Liability and costs are significant drivers for business, although I understand the development and reasons for worker’s compensation, this short circuits the system and short circuits the liability side of the equation because liability is capped with workers comp. It would be interesting if worker’s comp could be crafted to allow for direct tort actions by an employee against an employer for significant health and safety hazards/injuries etc. while still leaving the more minor stuff to standard workers comp practice. In this fashion, relatively minor stuff could still be resolved quickly but yet business would understand the risk of major health and safety problems in an unlimited liability context.

    4) Environmental vs. Occupational and funding: Having spent a significant amount of time in both arenas, I have always been intriqued about the different cultures in each. I am not sure why this is, maybe is it just simply my own individual experience with the folks I have worked with or perhaps this is because the environmental movement was born out of activism whereas industrial hygiene and safety practice was born out of labor needs, perhaps this is why they seem so different in my daily work experience. One suggestion floated around a while back was to take OSHA out of HHS and put it in the EPA. I don’t know if that would be good or not, but this would probably change the culture, EPA certainly has a lot more funds and resources and perhaps this change would allow more funds to diffuse into the occupational activities. Although with this current administration the game with funds is somehow trying to link everything to terrorism and homeland security, isn’t a protected workforce a homeland security issue?

    thanks for letting me comment.

  13. #13 Michael Silverstein
    January 12, 2007

    Some quick responses to recent posts.
    1. Dennis Thorn expresses frustration with the political manipulation of OSHA. I’m afraid that occupational safety and health is inherently a subject with political overtones because it deals not just with science but with the relationships between employers and employees. While I don’t think we can take politics out of OSHA we can certainly be more vigilant in ensuring that the political process works more effectively to protect employees from harm.
    2. Donald Coit Smith draws the analogy between Sarbanes-Oxley and the idea of having CEOs certify that their workplaces are in compliance with OSHA rules. I am interested in hearing more about possible ways to ensure CEO accountability for what goes on at work.
    3. Jordan Barab draws on his experience with Confined Space to highlight the potential role of the families of injured or killed workers in making the public case for a stronger safety and health system. This was a theme in the recent national gathering of COSH groups in Boston and deserves much more attention.
    4. Jim Blando makes a number of excellent points, but the one that caught my attention was the idea that “if you are talking to the general public frame it as a public health issue, if you’re talking to union workers frame it as labor issue, if you’re talking to a politician frame it as an economic and public relations issue.”

  14. #14 Peter Dorman
    January 13, 2007

    Michael, you’ve written a superb introduction to this discussion—well researched, systematic, open-minded. There’s lots for us to chew on. And I really appreciate this forum, which has already stimulated a high level of commentary. Here are a few thoughts of mine, as brief as I can manage.

    1. Management systems. This is a touchy issue, and rightly so. It would be useful to recall the fight over OSH management standards at ISO. Labor refused to sign on, perhaps more because of context than ultimate principle, but that’s not a small point. My reading of the international experience is that context is crucial. For instance, it is debatable whether Britain’s shift to a management systems philosophy has paid off in better working conditions. The official statistics are great, but I strongly suspect that devolving the system in this way has impaired the quality of the numbers. (Skeptics can compare the data issued by the UK Health and Safety Executive to comparable data-gathering bodies in Sweden, Finland, etc.) On the other hand, tying management standards to workers comp premiums (Ontario, to some extent also Germany) seems to pay off. This is because the incentives are more powerful, but also because the reporting process is *not* similarly devolved.

    2. Third party certification. I’m unsure of the ultimate purpose. Much depends on who pays for this certification. Having the employer pay leverages public funds but runs into multiple problems: maintaining the integrity of the system, greater political resistance, and the likelihood that this will disproportionately burden smaller business (who are, on average, more dangerous, it is true). If the public pays, then it is unclear how outsourcing improves performance. For what it’s worth, I have advocated a sort of mixed public-private arrangement by which health and safety personnel, who can perform other tasks as well, work within the firm but are salaried publicly. The portion of the salary paid by the public can correspond to the size of the enterprise. (I think this would also be an excellent idea for accountants. And environmental engineers. And journalists. And educators.)

    3. The changing workplace. This is an enormous challenge. (I recommend especially the work of Mike Quinlan and Claire Mayhew on this topic.) The most effective forms of OSH protection rely on an active, involved workforce, but that is difficult to achieve when more work is casualized, union coverage is shrinking, and administrative structures within enterprises are dismantled in favor of competitive, market-like internal coordination. Honestly, there is only so much one can do under these circumstances, so perhaps it is necessary to link OSH reform to a larger agenda of “high road” labor relations. One glimmer in an otherwise depressing situation is that pushing for more opportunity for worker involvement in OSH can make the larger agenda a little more viable.

    4. Learning from other countries. I’ve become an advocate of tying comp into regulation, and making the criteria forward- rather than backward-looking. (I’m writing this from Germany, where this is the cornerstone of the system.) And putting real resources into educating workers so they can become self-protective, as in Sweden, is excellent. (Apropos of this, the decision of the new conservative government to shut down the Work Life Institute is awful and will have repercussions in the US and elsewhere—their research has often shown us the way.) I am also attracted to the “action plan” framework in Denmark, which is used for all sorts of purposes, including OSH. All of these alternatives, however, benefit from much higher levels of labor (and also employer) organization. This brings us back, I’m afraid, to the “larger agenda” discussion.

    5. Globalization. I honestly feel that broader activism to oppose sweatshops and support better working conditions in developing countries can help revitalize OSH awareness and reform here. This is because many of the depredations seen elsewhere echo problems in our own past and present. In various places I have tried to make the argument for global OSH standards based not on technical specifications but workers’ rights to know and to refuse imminently dangerous work, in order to be applicable at any level of development. Of course, it is horrible working conditions that illustrate the need for procedural standards.

    6. Some special issues: (a) Youth. Teenagers are at heightened risk, and they are hardly served at all by workers comp in the US. It would be good to see a targeted youth strategy. (b) Data. More accurate numbers would help build a constituency. At the least, enforcement rigor should not be tied to recorded performance; there are too many perverse incentives. Also, we must do better in our reporting; BLS adjusts its employment data seasonally—why can’t we adjust for changing industry composition? (c) Gender. I would encourage everyone to read Karen Messing’s book “One-Eyed Science” and take her advice into consideration.

    7. Packaging and politics. It is true that different message frames will resonate with different audiences. We have seen a dramatic example of this in NYCOSH’s campaign to expose the cavalier treatment of 911 responders. After some resistance on my part, I have become open to more cooperation with the health promotion community, especially in light of the increasing awareness that the hypertrophying health care sector is becoming an economic menace. Prevention and wellness will have to move more to center stage, and certainly OSH should be a major part of that. But this does not mean that we should drop our other discourses of worker rights, environmental justice or workers-as-assets for that matter.

    I apologize for the length of this post and thank you if you’ve made it this far.

  15. #15 Michael Silverstein
    January 16, 2007

    David Michaels and Peter Dorman raise the right, hard questions about involving non-government personnel to play a central role in holding employers accountable for following the rules on safe workplaces – cost and funding, accountability, qualaity control, conflicts of interest, industry capture. David refers to “audits” and Peter talks about “devolving” the current approach to a management system model. While I understand their points of view, I don’t have in mind a future in which general programs take the place of specific requirements. The concept that most intrigues me is the idea that every company would have to be certified as safe and healthy. This would mean hanging a certificate stating that the workplace has been evaluated and is compliant with specific standards (e.g. the lead standard), the general duty clause, and generic standards (e.g. a safety and health program rule). This is a shift in paradigm from the current honor system in which employers are required to comply with the rules but do not have to demonstrate compliance unless they are inspected. The current system cannot possibly work unless truly huge (and unthinkable) increases in the numbers of inspectors and the size of penalties raised the stakes high enough to create a deterrent force for resistant employers that simply does not exist now. A certification requirement would change the dynamic. It would raise, however, all the questions posed by David, Peter, Liz and others about involving third parties in the certification process. The most important question from a policy standpoint is conflict of interest: how can we ensure that private inspectors act in the public interest. The most difficult question from a practical standpoint is funding; who would pay for the huge number of certification inspections. Without a good answer to funding, any proposal along these lines is politically a non-starter. I am interested in any ideas about this. Perhaps an offset from worker compensation funds?

  16. #16 Donald Coit Smith
    January 17, 2007

    A quick thought about workers compensation funds, funding an “inspection” program, and conflict of interest:

    I believe workers compensation funds should go to workers or, as in death cases of dependent workers who leave no dependents of their own…the surviving family… and not insurance companies (as is the case with the subsequent injury fund in Texas to repay themselves for overpayment of claimants). The subsequent injury fund attains monies from comp death benefits not paid to “legal” beneficiaries (killed workers who leave no spouse or offspring- even if they were dependent upon parents at the time of death). This current channel of funds is morally wrong.

    Companies pay taxes… well, some do. Some get tax breaks for location preferences. Others have any number of advantages. Perhaps a per employee or, per $ valuation of assets type figure could be derived to fund private inspectors. In the end, the taxpaying citizens will ultimately fund this type project anyway. It’s a difficult issue.

    Acting in the public interest is touchy. Are we sure all police officers “act” in the public interest? Are we sure our elected officials “act” in the public interest? Are we sure our current OSHA servants “act” in the public interest? Does the OSHA legal office act in the public interest by negotiating out so many citations without so much as a thought? Look around and we can find negative examples… but even one is too many. Fact is, people are people and our current system, whether we like it or not, is driven by the dollar. Would private inspectors be suspect themselves? Sure. However, if they could prevent even one death would it be beneficial and in the “public interest”? In my opinion, a citation is a fine and stick to it. Why not make those funds pay for the inspectors? Yes, there may be some underhandedness, etc. but I guarantee a suitable inspector can find enough items on any inspection to surely at least pay for the process. Businesses will not like it and I’m quite sure the employer PAC’s would fight it like mad but then again, we come back to money. But that is one method of funding.

    Again, these are just some comments on the subject. I appreciate the opportunity for input.

    DCS

  17. You have all made wonderful comments. Many of the points raised here about the controversy in the birth of the OSH Act are also discussed and DRAMATIZED on our DVD, (downloadable for free at http://www.trainingprofessionals.com/internationalhealthlaw/) entitled OSHA 35 Still Alive! THis first of two productions was premiered at the NORA NIOSH Symposium in Wash DC in April 2006. The points about the fears raised by members of the uS congress at the time of the passage of the Act are taken directly from the legislative history, which is a fascinating read. Most of the issues that were vibrant then are still quite alive and well. I want to point out, however, two things that seem not to hav been disucssed by this group thusfar. First of all, OSH Act has not been amended in its 35 years. That is very unusual in the world of legislaiton. Clean Air Act has been revamped several times in that time frame, and many laws actually have some requirement to be modified on a cycle periodically. The fact that the law is a compromise and has not been modified bears empirical testimopny to the notion that despite its critics on both “sides”, the law must be working and meeting some vital need in society– otherwise there would be political will one way or the other to have the law changed. Second, and this is the vital point, my greatest sadness is that OSH Act lacks teeth because there is NO claim for INDIVIDUAL RIGHTS to sue under OSH Act. The employee or the administration can bring a complaint against an employer resulting, perhaps in fiens or abatment schedules, BUT there is no claim regarding harm to THIRD PARTIES as one finds in the infamous and remarkably effective EPA model regarding so-called “citizen suits” In that model, somoen who observes the release of toxic effluents may compliant to the Ag and have the government bring asuit against the polluter on the general public’s behalf. If we had that under OSH act, you can just bet workplaces would be safer and cleaner than they are now.

  18. #18 J. Hammond
    January 19, 2007

    Everything – including worker safety – is tied to corporate profit margins, return on investment, and price per share of stock. Wall Street, corporate boards, and business unit presidents / general managers are measured on delivering double digit increases on stock on a quarterly basis. Their bonus and ability to continue to enjoy access to the Power Elite depends on pushing product out the door and cutting production costs. Unless worker occupational injuries pierce the corporate insurance umbrella, senior management does not shed a tear over injuries or fatalities. Especially when they can continue to off shore more dangerous work tasks in countries where workers’ compensation is a joke.

    If you want companies to implement and enforce stronger safety cultures and compliance – do the following:
    1. Change the Laws to allow OSHA and MSHA to levy very large monetary penalties for serious noncompliant findings, and not to reduce the penalties at the Informal Conferences. Attack the corporate expense line and you will get the corporate attention.
    2. Encourage the newsmedia to routinely report the number and severity of injuries occurring at companies in their geographic media area. Expose the corporate “good citizen name” for what it is when it comes to failure to prevent employee injuries. Let the public know about the dirty side of the “household names” they come to love.
    3. Pressure insurance companies and their underwriters to substantially increase premiums on corporate clients who refuse to foster and maintain a strong safety culture throughout their divisions. Insurance companies look the other way because they don’t want to lose the large premiums that impact their bottom lines. And, you must remember an entire industry exists geared around administering injured worker claims and treating those injuries.
    4. Convict corporate CEOs, presidents, and general managers for failing to take the necessary actions to reduce occupational injuries in their workforce. Workers are assets to the corporation. Sarbanes Oxley and other legislation requires the protection of assets – not just financial reporting. Use the laws already on the books.

    He who makes the gold, makes the rules. But he who must answer to investors about losing their gold due to injuries will surely listen!

  19. #19 Dr. Rick Lippin
    January 27, 2007

    Th cliche “the workplace is the forgotten environment” is my experience. However in a knowlege based economy workers finally may move from the cost to the asset side of the balance sheet?

    But we can’t depend or wait for that. We need a much stronger OSHA and I like Michael Silverstein’s ideas about a generic approach

    Also as the ONLY physician who sat on NIOSH’s OOW team I urge you to include issues surrounding work stress and organization of work=oow

    Dr. Rick Lippin
    http://medicalcrises.blogspot.com

  20. #20 Name Withheld
    February 5, 2007

    With regard to J Hammond’s 3rd point on insurers; When I obtain automobile insurance, there are certain benchmarks I am required to meet. Having a valid driver’s license, having a relatively clean driving history, documenting any additional drivers, etc… The insurance companies are required to verify these benchmarks in order to continue to be able to provide automobile insurance services in the states they operate in.

    Why is it that W/C insurers are not REQUIRED to verify the safety and health programs of those they insure under penalty of losing lisencure? Some of the issues raised in previous comments around privatized inspections can then absorbed and resolved by insurance companies. It seems to me that if a company’s ability to obtain W/C insurance and an insurer’s ability to provide W/C insurance is contingent upon certification of a workplace’s compliance with OS&H standards (or, at a minimum, working to correct identified hazards), many of the political swings, funding issues and “flavor of the month” issues would become moot.

    Then again, maybe this is just pie in the sky.

    Great forum all.

  21. #21 Donald Coit Smith
    February 6, 2007

    Quick comment:

    “Name withheld” has made a very strong and to-the-point statement which, when viewed from a subscriber standpoint, might have extremely harsh consequences…one being dropped from comp protection. However, a key issue under comp is “exclusive remedy” and this protection under the current system. There are those out there who are not subscribers and face lawsuits every day and as a result, are exposed so much more. I personally do not know of any large company within my ASSE group, or other contacts who are bare.

    I have labored under the impression for nearly 20 years that OSHA was “law” and must be followed. And for 20 years I continue to see organizations violate federal law and “walk away” from their indiscretions.
    Somewhere above is a comment about making these penalties harsher, with criminal prosecution and the like, and holding those who sign the paychecks responsible. A glance at the OSHA website reveals the futility of our current system to curb the assault on the workforce.

    Dr. Silverstein’s paper outlines a good start to ending a lot of this misery. But to change the policy one must change the policy makers (or at least their thinking).

    DCS

  22. #22 Dr.Rick Lippin
    February 7, 2007

    I offer this up to “stir the pot” and ask the many fine reseserchers in OEM to re-examine some basic assumptions about reductionism. I said this in 1995 in e-mails but wrote a simple statement below in 2002 to codify my view

    Thanks for your openmindedness which is the essence of science.

    “Reductionism’s last Hurrah”

    In 1985 I declared, to the dismay of my colleagues in Occupational and Environmental Medicine (OEM) the application of the miraculous infectious disease model (single agent-single health outcome) was essentially a failure (with some notable but very few exceptions.) I called it “reductionism’s last hurrah”. My premise was that we are all living in a highly complex and ever-changing chemical and radiation “soup” especially since the industrial revolution-but even before. The attempt to fully understand the reaction of these exposures on highly complex human physiology (26,000 genes interacting with 300 million proteins in 100 trillion cells) was mathematically not feasible –essentially unfathomable.

    Add to that the excessive consumption of illicit, OTC and prescribed medications, tobacco, alcohol and natural and synthetic chemicals in our diet. The question remains – what to do? Venter’s phrase “Probabilistic statistics” may apply.

    Also, I stand in favor of more dollars for CARE and less on CAUSE which only makes lawyers and insurance companies rich at least in my field of OEM.

    Rick Lippin
    November 2002

  23. #23 Jay Herzmark
    March 23, 2007

    I want to comment on the idea of joint safety and health committees. Washington State has had a requirement for these committees since before OSHA existed. I have been involved in committees in a variety of industries, including a paper mill, health care, construction and academia. My involvement has been both as a management and union representative. While I doubt my experience is universal, I have never seen one that I consider effective.

    There are several common problems with them. I’m going to describe them and propose some solutions below.

    * Domination by management
    * Don’t know what to do
    * Powerlessness

    Domination by management
    The committees are set up by management. Management makes the rules on how the employee representatives are selected. Washington requires them to be elected. But the unions are not notified of the election. They may also be limited to a single representative while the company run election fills many positions. The employees may have to come in on their days off or another shift to attend meetings. Some employees have to complete their regular jobs so they don’t really have time to attend meeting.

    Washington law says there can’t be more management reps than employee reps. So management sends a bunch of technical people like safety, risk management, employee health or corporate lawyers, that don’t get to vote so management claims they aren’t representatives. But they dominate the meeting anyway. They present whatever topic they want.

    Don’t know what to do
    Committees get no training from either their employer nor union so the members don’t know how to address important issues. Discussions of tripping hazards and housekeeping dominate the agenda. They never address even the common problems of ergonomics.

    Powerlessness
    The committees have no budget and no authority. Usually the management representatives on the committee are low level people who don’t have the authority to make the necessary decisions to correct problems. Problems come up again and again for months to years without being corrected.

    Some suggestions
    * authority
    * independent expertise
    * independent training
    * separate meeting time
    * diverse levels of committees

    Authority
    The management representative must have the authority over personnel and budgets to address the problems. An effective safety committee regulation must require top management be active participants in the committee.

    Independent expertise
    Committee members depend on the company safety people who may withhold information or provide distracting information. Unions need to provide assistance to the committee members. Union can’t just depend on OSHA to provide the only outside health and safety help

    Independent training
    The committee shouldn’t have to watch video’s that start out with the narrator stating that “Your employee has provided you with safety equipment but it is up to you to use it.” A safety committee regulation should mandate training for the committee that is either jointly decided on or the employee representatives decide on their own training.

    Separate meeting time
    Safety committee meetings must be approached like any other labor/management meeting. Each side needs to have time to meet separately to determine their priorities and how they are going to address them.

    Several levels of committees
    Most issues don’t need to be addressed in a company wide forum. They can be solved at lower levels. However, lack of funding or problems caused by other departments need to be addressed at a higher level. Safety committee regulations should require committees that follow the management structure of the employer at all levels.

    In 1972, Tony Mazzocchi, the health and safety guy for the then Oil, Chemical and Atomic Workers was quoted in “Bitter Wages” on the topic of Safety Committees. He said “I know you are all proud of your committees but they are all nonsense.”

    While I have never been involved in a committee that I thought was effective either, I haven’t given up hope. I would like to hear from anyone who has had good experiences.

  24. #24 Sarah R Budde
    May 14, 2007

    The article by Michael Silverstein is certainly food for thought, and he makes very good comparisons; the comments and ideas from contributors are sometimes heartening and sometimes disheartening.

    The quote in the article from the CATO Institute stated that OSHA is 1/20th the size of the EPA, and that Fish and Wildlife employs six times as many inspectors. Do these numbers take in to account the OSHA State plans and employees, or only Federal? If State plans are not included, the numbers are erroneous.

    Thank you for the opportunity to comment.

  25. #25 osha 510
    December 16, 2007

    There’s a lot to be said about independent third-party audits. Let me start with a few questions. Assuming there is some way to develop a system of auditors that is not under the influence of the employers who hire them, there are some other questions that need to be answered.

  26. #26 OSHA Pro
    February 20, 2009

    There is excellent public assistance available through the State OSHA consultation programs, as well as through independent third party firms using Certified Safety Professions, like at http://www.mock-OSHAinspections.com . They have no reason to cave in to the employer.

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