I was already tired of President Obama repeating the Republican’s rhetoric about big, bad regulations, how they stifle job creation, put an unnecessary burden on businesses, and make our economy less competitive. He did so last month in an op-ed in the Wall Street Journal and in his State of the Union address. But yesterday, the White House went too far.
In advance of the President’s speech to the U.S. Chamber of Commerce, the chief of the Office of Information and Regulatory Affairs (OIRA) threw two OSHA initiatives under the bus. Right after mentioning President Obama’s January 18 directive that agencies reduce regulatory burdens on small businesses, the OIRA chief boasted that they were already making great progress toward that goal. He offered four examples, and two of the four—-2 of the 4—involved initiatives to advance worker health and safety. It’s a sad day when OSHA becomes the whipping boy for a Democratic Administration.
The two OSHA proposals have been a target for months of the Chamber of Commerce, National Association of Manufacturers and other industry lobbyists. But that didn’t stop the White House from bowing to business. Neither meets the criteria of being outmoded, unnecessary, or duplicative. One is OSHA’s revision to its existing injury recording requirements. As I’ve written before (here, here, here) the Labor Department has been working on a proposal to get better data on work-related musculoskeletal disorders like tendinitis, low back pain, carpet layers knee, trigger finger, and carpal tunnel syndrome. OSHA proposed a simple revision to its paper form—called the OSHA 300 log—on which just a fraction of U.S. employers are required to record work-related injuries. The Bureau of Labor Statistics (BLS) collects a sample of these forms annually to estimate national rates of work-related injuries.
The OSHA proposal would not have changed existing requirements for when or under what circumstances employers record injuries or illness on the logs. (The OIRA chief got it wrong when he said “the Department of Labor has withdrawn its rule requiring reporting of musculoskeletal disorders.” Employers are already required to report musculoskeletal disorders.) The only modification was that employers would place a check mark—-a check mark—in a column on the log to distinguish musculosekeletal disorders from other injuries, such as burns or amputations. The estimated annual total cost for the change for all the affected employers: a measly $1.739 million. The benefits?? Ah, that’s the rub.
Businesses want no part of any effort that would give public health agencies, researchers, the public, and WORKERS, better data on work-related musculoskeletal disorders. We might learn something about the magnitude of the problem and the industries in which workers face the greatest risk of injury. With that information, employers might be compelled to do something to prevent these injuries. That’s the moral, social, economic, down-the-road burden they want to avoid. But a check mark, in a column, on a form you are already required to fill out…..sorry Mr. Obama, that’s not a burden.
The other is a long-overdue and much-needed change in the way that OSHA enforces its noise standard. The agency’s 90 dBA 8-hour time-weighted average permissible exposure limit for excessive noise dates back to 1969. (In fact, this level isn’t even adequate to prevent hearing loss; it should be 85 dBA.) The manner in which employers were expected to comply with the noise exposure limit was unequivocal:
“When employees are subjected to sound exceeding [the limit], …feasible administration or engineering controls shall be utilized. If such controls fail to reduce sound levels….personal protective equipment …shall be provided and used to reduce sound levels…”
For years, OSHA enforced the standard as written, but during the anti-regulatory Reagan Administration, inspectors were told they should ignore what was written in the standard. Employers could now comply with the regulation by putting their workers in hearing protectors if it reduced their exposure to acceptable levels and was less costly than fixing the noise at its source.
The problem with hearing protectors? They do nothing for the full-body assault of noise and its harm to workers health (here, here, here, here.) Hearing protectors are also less reliable than engineering controls because they have to be worn properly at all times. They also saddle workers to deal with the noise rather than the looking at the industrial process that creates it.
The standard on the books says hearing protectors should be the last line of defense against noise, not the first, but OSHA’s enforcement policy turned that on its head. Over the years, the agency has virtually abandoned the requirement for employers to use administrative and engineering controls as the first line of defense to protect workers from dangerous levels of noise. OSHA officials were trying to right that wrong when they alerted employers and workers last fall that they planned to enforce the standard as written. Surely after nearly 30 years of non-enforcement by OSHA, businesses can’t claim they still need relief from this rule.
Here’s what troubles me most about the White House using these two OSHA examples. Proper enforcement of the noise standard and better data on musculoskeletal disorders were initiatives identified by OSHA chief David Michaels as necessary and rational steps to advance worker health and safety. These were not “stupid” regulations for the butt of jokes, or arcane rules that contradict other regs. These were small steps OSHA could take to begin addressing persistent, long-standing hazards that take a real toll on workers. But now, the Obama Administration has thrown OSHA under the bus by using these two initiatives as their top examples of burdensome and unnecessary rules.
With friends like these….