Last fall, acting OSHA chief Jordan Barab said the agency would be beefing up oversight of the 27 State programs that operate their own worker health and safety regulatory and enforcement systems. The OSHA State Plans, as they are known, are typically subject to annual reviews by federal OSHA, but after major lapses in the Nevada OSHA program were exposed, orders came down for more robust evaluations.
At an October 29, 2009 hearing before the House Education and Labor Committee, Barab testified that the results of his agency’s review of the Nevada program
“convinced me that significant changes must be made in how Federal OSHA conducts oversight over the state plan programs.”
The instructions for conducting these enhanced reviews were issued in a November 24, 2009 memorandum, explaining the goal was to have all the reports issued by April 30 and made available to the public. (The instructions also say that each State Program was going to be given 30 days to respond to OSHA’s report, but I couldn’t tell whether that was before or after the April 30 date.) Well….now that it’s early July, I expect we’ll be seeing some, if not all, of these reports very soon.
At the time, Barab didn’t suggest that the situation in Nevada foretold equal trouble in the other State Plan States. In fact, the acting OSHA chief acknowledged that some of the State OSHA programs may be more effective in some respects than the federal OSHA program: their authorities and protections cover, for example, state and local government employees, some of the States may have adopted standards for hazards not addressed by federal OSHA, some may require employers to have formal programs to involve workers in their safety programs, some may permit their inspectors to shut down dangerous equipment or operations. I’m hedging my bets that once the reviews are released, they will run the gamut from a couple of really troubled programs to a few stellar ones.
I’ll be surprised if we see something as concise as a report card for each State Plan, but as long as each report is formatted similarly, we should be able to make some comparisons among States. I’ll be curious to see if OSHA will offer some benchmarks to allow easy comparisons between the State-run and the Federal Program.
Based on the lengthy list of topics outlined in the November directive, each report should offer plenty to offer, such as metrics on the:
*timeliness of response to hazard complaints
*procedures for notifying families of victims of enforcement action
*adequacy of worker involvement in inspections
*number of violations per inspection
*percentage of serious, willful and repeat violations
*percentage of in-compliance inspections
*documentation of reclassifying violations
*timeliness and thoroughness of investigating safety whistleblower cases
*numbers and disposition of complaints against the State Plan
I wonder if the reports will make it obvious that a program (or parts of a program) is an outlier. A State like California comes to mind, knowing that State-employees (including Cal-OSHA inspectors) had quite a few furlough days last year. What impact did budget woes in other States have on their worker safety agencies’ performance?
We learned from OSHA’s review of the Nevada State Plan, for example, that the agency had serious difficulty retaining an experienced inspection force. It also had subpar recordkeeping procedures, making it difficult to substantiate its enforcement decisions. Will OSHA’s review of the other State Plans find similar results?
I also expect the OSHA reviews to offer examples of key ways in which the State-run programs are different (and potentially) more effective than federal OSHA. In the past, I’ve seen self-promotions in the annual reports prepared by the association of the State Plans (OSHSPA.) It will be worthwhile to receive assessments of unique features of the State Plan programs from a quasi-independent source.
There’s always some fear surrounding program evaluations because the instigators may have to face the fact that a reviewee is not measuring up, or worse. When it comes to an OSHA State Plan with serious deficiencies, the only option available to OSHA is not one it wants to take—revoking a State Plan. (Because the States share the costs of the plan with the Feds, if federal OSHA took over the State program, it wouldn’t have the benefit of the State’s share to run it. This bad option doesn’t only come down to money, but it’s a big part. (A bill by NV congresswoman Dina Titus would give OSHA something other than this all-or-nothing option.))
Look what’s happened in Nevada since OSHA issued its review last year: proposals have been working their way through the State legislature to toughen penalties against employers who violate safety laws. What federal OSHA discovered about Nevada OSHA was troubling, but now the workers, employers and residents of Nevada are working with State lawmakers to fix the problems.
Let’s see those report cards on the State OSH programs and take it from there.