Feds review State-run worker safety programs, differing opinions on measuring "at least as effective as"

Federal OSHA offered praise for some States, and warnings to others, in its 26 evaluations released this week of State-run worker safety programs. Hawaii's and Utah's programs were identified as having "significant program deficiencies," with evaluators expressing uncertainty about the States' "ability and commitment to operate an effective enforcement program." * Findings about the Aloha State's worker safety enforcement program were particularly grim, compelling OSHA asst. secretary David Michaels to write to Hawaii Governor Linda Lingle with a special offer: Hawaii gives up its approved plan status to allow federal OSHA inspectors to conduct inspections in the State. Michaels noted that workplace inspections under the Hawaii State plan have declined from about 4,000 per year in 1984 to only 426 in fiscal year 2009.

The deficiencies in the Utah program included inadequate funding, staffing and training, as well as "questionable penalty reduction practices." A Utah employer who requests an informal conference to discuss the citations and penalties issued, will receive, on average, a 70% reduction in the penalty amount. Federal evaluators noted that 70% of the violations identified by Utah inspectors are classified as serious, but suggested this figure was misleading. A 1995 policy in the State instructs inspectors not to cite other-than-serious violations when the condition is abated at the time of the inspection. For comparison, the percentage serious violations in the other States was 43%.

When Congress created OSHA in 1970, States were given the option of running their own workplace safety and health regulatory program as long as it is "at least as effective as" the federal OSHA program. Twenty-seven states and territories do so and have for dozens of years. South Carolina's program is was approved in 1972---it was the first--with many of the others obtaining final approved status in the 1980's. Twenty-two of these so-called OSHA State Plan States have enforcement authority in both private and public sector workplaces, while the remaining five only cover public sector workers. Federal OSHA provides up to 50% of the States' costs to run their programs. In fiscal year 2009, the feds provided $92 million to the participating States for these enforcement programs and also to support on-site safety consultation services for small businesses.

Reviews of these 27 State programs have been conducted year after year, but when serious problems with the Nevada OSHA program were exposed by Pulitzer Prize winning reporting from the Las Vegas Sun, the public and lawmakers wondered why the deficiencies hadn't been exposed by federal OSHA's annual evaluations.

Monitoring of the State programs evolved over the last 40 years. Early on, the feds would conduct extensive on-site evaluations and even accompany State inspectors doing their work. Then by the mid-1980's when the States' and feds' programs shared a common data management system, the reviews relied heavily on statistical comparisons on measures like numbers of inspections, percentage serious violations, and monetary penalty amounts. During the Clinton era, as explained by OSHA deputy asst. secretary Jordan Barab,

"...oversight was again reduced in response to complaints from the states that they had been running their programs for many years and did not need such extensive oversight, and that they were contributing considerably more money" to their programs than the feds.

As a result, the OSHA State Plans and federal OSHA agreed to an evaluation program based on each State's five-year strategic plan for reducing workplace injuries, illnesses and fatalities. The State program would establish a plan with metrics (such as, reduce the number of work-related recordable injuries by 5% over the next five years in the logging industry,) and then report back annually to OSHA about its progress in meeting each goal. (See, for example, Oregon OSHA's plan, Minnesota OSHA's plan, and Vermont OSHA's plan.)

I've not been able to locate on federal OSHA's website or elsewhere the strategic plan developed previously by Nevada OSHA with its goals and metrics to measure its performance. What we do know is that at one large construction strip in Las Vegas, 12 workers died during an 18 month period in 2007-2008. It took an intensive on-site review by federal OSHA to learn that Nevada inspectors were discouraged from classifying violations as willful and repeat, a situation that may have been impeding the deterrent effect of violations and related monetary penalties. Following OSHA's special evaluation of the Nevada program, federal OSHA acknowledged that focusing exclusively on State Plan States' strategic plan performance to measure their effectiveness may not cut it.

"...this approach may not capture and address performance problems...[and does] not always present complete pictures of the State programs.."

When OSHA's deputy asst. secretary Jordan Barab testified October 29, 2009 before the House Education and Labor Committee, he announced that OSHA would be conducting "enhanced" reviews of all the State Plans that would mirror the methodology used for the Nevada program. Soon after, he provided written guidelines for conducting the reviews. Barab wrote that these reviews, called the Enhanced Federal Annual Monitoring and Evaluation (FAME) reports, would be issued by April 30, 2010. (They missed that deadline by about 5 months; they were released Sept 28.) In comments clearly directed to the State officials running these programs, Barab wrote:

"I hope you will join me in viewing this as a unique opportunity to work together to identify and mutually resolve problems, as well as to identify effective performance which may achieve the goals of the national OSHA program through means that may differ from the Federal."

I skimmed most of the 26 evaluations, but I found some of the most interesting reading in the States' initial comments back to OSHA. A number of the States took exception with the assessment. Several commented, for example, that the OSH Act does not require the States to run programs that are identical to federal OSHA's.

Maryland Commission of Labor and Industry J. Ronald DeJuliis said:

[we]... truly believe that it is important to allow the states to continue to have policies that differ but are at least as effective as OSHA and to encourage the diversity in state Programs that is the cornerstone of an effective national Occupational Safety and Health system. ...The way that our penalty policies were the lead off issue in the "problems identified section" signals an unwillingness to appreciate the spirit of being at least as effective as OSHA."

From California, John C. Duncan, Director of the Department of Industrial Relations said:

"The Act requires states to be âat least as effective as OSHA, not âthe same as. However, statements like âCal/OSHA should adopt policies equivalent to Federal OSHA's, coupled with the utter absence of any attempt to factor state program accomplishments that exceed OSHA's into the evaluative process, point to a working premise that states must do things exactly the way OSHA does."

Mr. Allen McNeely, deputy commissioner of labor in North Carolina, said they are

"...surprised by a monitoring process that puts so much emphasis on the requirement that state policies and procedures be identical to federal OSHA's. This approach seems to defeat the purpose of the state plan concept envisioned by the OSH Act. This regressive monitoring approach that values activity over outcome and sameness over innovation had been abandoned years ago by previous administrations."

Mr. McNeely went on to criticize OSHA's methodology for failing to define what it means for a State to be "at least as effective."

"We are not sure why no such "at least as effective" determination was made by OSHA; however, North Carolina feels a valid determination cannot be made of any State Plan program without a legitimate definition of "at least as effective." ...In order to utilize OSHA as the "benchmark" for an effective occupational safety and health program that other programs would be measured against, it would require an independent comprehensive audit of OSHA's program effectiveness in all areas. Following such a baseline audit of OSHA to establish a valid benchmark, there would need to be continuing monitoring of its program on a routine basis to ensure baseline effectiveness is being maintained in all those areas that would be used for comparison against any other program."

Other States raised objections to the feds' process for conducting the evaluations. Virginia's Department of Labor and Industry said, they were refused an opportunity, as had been afforded during previous evaluations, to have a closeout meeting with the evaluators to clear up any confusion about their findings.

"...it is unfortunate that past successful practices implemented by [OSHA] Region III, which were in the best spirit of government transparency, were not followed in this enhanced evaluation. ... Unfortunately, it appears that the final Virginia EFAME report contains some errors and misstatements that could have been avoided."

The Virginia officials also criticized the lack of quantification in the assessment.

"...the findings contain phrases like 'did not always' or 'were not always' or in some instances leave the reader with the impression that VOSH never completed a required procedure."

One comment that made me chuckle was from Indiana Commission of Labor Lori A Torres who wrote:

"We were surprised, however, at the changes between the draft report as written by your office and the final version rewritten in Washington D.C."

Is this one of the reasons for the 5 month delay in issuing the reports is because they were being re-written?

Iowa Labor Commission David Neil's comments offered the harshest rebuttal:

"Many of the recommendations are administrative and generalizations in nature and most likely would not have saved one life or serious injury. The cost of this review verses the benefit to Iowa workers and employers will have to be left to the readers of the report."

Mr. Neil offered his own critique of federal OSHA's performance saying the agency would be more helpful to the State if it provided the full federal 50% match of funding on a regular basis. He also noted that given his State's illness rates are driven mainly by musculoskeletal injuries, OSHA should promulgate an ergonomic standard to address to help prevent them.

It's clear that a significant amount of staff time and resources were spent preparing these reports. We've not heard the last of them because the States have 30 days to provide additional comments.

As I wrote in early July in "Waiting for OSHA report card on State OSH programs," I was hoping (but not expecting) a concise synopsis to allow easy comparisons between the State-run and Federal program. What OSHA provides instead is a table where you can compare one State Plan, to the average of the other State Plans and to Federal OSHA. What's not clear is how this data translates into an assessment of "at least as effective"?

In the months ahead, I expect there will be some heated discussions about whether these evaluations hit or missed the mark. Here's my assessment:

All the OSHA State Plan States, except for Hawaii and Utah, have programs that are "at least as effective as" federal OSHA.

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*Note: In the Utah report, federal OSHA said that the program deficiencies "raised concerns" about the State's ability and commitment to operate an effective enforcement program." In the Hawaii report, federal OSHA said their findings "raised questions" about the State's ability and commitment to operate an effective enforcement program.