Federal oversight of Cal/OSHA – What is it good for?

by Garrett Brown, MPH, CIH

If there is one thing that Christine Baker, Director of California’s Department of Industrial Relations (DIR), and Juliann Sum, Chief of the Division of Occupational Safety and Health (DOSH or Cal/OSHA), cannot stand – it is criticism, no matter how constructive or gently offered it may be.

With a “thin skin” sensitivity and an aggressive impulse to counter-attack that rivals Donald Trump’s, Baker and Sum tend to go crazy about the annual report by Federal OSHA on the state of Cal/OSHA.  In July 2015, DIR/DOSH wrote two tart letters to federal OSHA (here, here) contesting the findings of the 2014 fiscal year report and the results of another federal OSHA (Feds) evaluation report.

Federal OSHA released this month their latest “Federal Annual Monitoring and Evaluation” (FAME) report for federal fiscal year 2015 (October 2014 through September 2015).  The 2015 FAME report actually notes improvements in areas where the Feds have previously highlighted program weaknesses.

Long experience here in California, and elsewhere, has shown public criticism and public pressure are critical to encouraging government enforcement agencies to meet their legal mandate and mission.  Holding political appointees’ feet to the fire – and the feet of the politicians that appointed them – month after month, year after year, is a critical element of ensuring that Cal/OSHA protects the health and safety of the state’s 19 million workers.

The continuing deficiencies highlighted in the latest FAME report give an indication of the underlying problems – chronic understaffing and lack of political will.  The federal report, however, cannot require Cal/OSHA to meet several requirements of state law that it is failing to do, despite the adverse impact on California workers’ welfare.

It is true that the FAME reports are not a perfect reflection of the state of Cal/OSHA.  The reports are generally issued two years after the start of the fiscal year they cover – meaning a lot can change between the end of the fiscal year and the time the report is issued.  There are also significant differences between DOSH and the Federal program which are not always accurately explained or even acknowledged by the federal staffers who write the report.

Moreover, it is undeniable that the Cal/OSHA program is “better” than the Federal one in several important respects:

• Cal/OSHA, like other states that operate their own OSHA programs, covers public employees – the Feds do not. In 24 states in which Federal OSHA has jurisdiction, public sector employees do not have the protections provided by OSHA to private sector workers;
• Cal/OSHA has a clear policy that the immigration status of workers in California is completely irrelevant to their rights enforced by Cal/OSHA (that is, all workers in the state enjoy Cal/OSHA protection regardless of their status) – the Feds policy is not so clear on paper and even less so in practice;
• Cal/OSHA has been able to periodically issue new regulations, including for hazards like outdoor heat and aerosol transmissible diseases, among others issues – the Feds’ efforts have been stymied;
• Cal/OSHA has been able to create new permissible exposure limits (PELs) for more chemicals and to update existing PELs – the Feds have not effectively challenged adverse court orders and employer opposition so outdated PELs from 1970 are still in place;
• Cal/OSHA’s civil penalties against employers who violate workplace health and safety regulations have been substantially higher than the Feds’ penalties (although that is now changing for the Feds, but none of the penalties mean much to large corporations). Moreover, Cal/OSHA retains more penalties in appeal proceedings than Fed OSHA.

Nevertheless, the FAME reports are useful because they are an independent, yearly evaluation of Cal/OSHA’s performance compared to a minimum set of benchmarks.  They are public documents that definitely capture the attention of the publicity-conscious DIR/DOSH leadership.

The challenge for Cal/OSHA has always been to obtain the resources and political will to actually implement a stronger program – and this is what the FAME reports highlight.

The Feds’ FY 2015 FAME reports positive progress in a number of areas at Cal/OSHA – and that’s a good thing.  DOSH’s budget and number of authorized positions have been increased; training of field compliance officers has expanded; DOSH has exceeded the target numbers (goals that it selected for itself) for the number of enforcement inspections; abatement of serious hazards has improved; increased targeted activity by the Process Safety Management (refineries and chemical plants) and High Hazard units has occurred; and outreach activities and publications were increased; and new regulations have been issued.

It is important to place this progress, and the reasons for it, in context.  The first term of the California Governor Jerry Brown’s Administration adopted an “austerity today, austerity tomorrow, austerity forever” approach to Cal/OSHA.  Jerry Brown inherited 195 Cal/OSHA field compliance officers from Republican Governor Arnold Schwarzenegger in January 2011.  By January 2013, the number of compliance officers in the field had declined to 167 – the lowest number in more than a decade.  After two years of battling DIR austerity and other employer-friendly policies, then Cal/OSHA Chief Ellen Widess was forced to resign in September 2013.  The current DOSH leadership was then placed in power.

But starting in late 2013, news media outlets in the state and nationally began covering the hollowing out of Cal/OSHA under Brown and Baker; in February 2014 a “CASPA” (“Complaint Against State Plan Administration”) was filed with Fed OSHA against DIR; in April 2014 a whistleblower complaint was filed against DIR with the California State Auditor; Fed OSHA itself began an investigation of DIR’s financial and management practices; and stakeholders expressed concern in statewide Advisory Committee meetings in 2014 and 2015 about the state of Cal/OSHA.

Fed OSHA issued very critical FAME reports for federal fiscal years 2013 and 2014, as well as a report on its investigation of the CASPA in 2015. Many of the findings and recommendations of the 2013 and 2014 FAME reports repeated earlier findings that had not been corrected by the Brown Administration.

So it was with this “motivation” that the DIR/DOSH leadership has finally arrived at a place in 2016 where most previous FAME findings have been addressed and progress is being made.

But it cannot be said that Cal/OSHA is meetings its legal mandates, let alone its mission and potential, even now.

The key to Cal/OSHA meeting its responsibilities is to have the field staff necessary to carry out Federal and state requirements.  As noted in the FAME report, Cal/OSHA has been authorized to hire 240 field compliance officers.  But a full year after funding for these positions was made part of the budget in July 2015, DOSH has only 199 field positions (206 nominal positions) filled and 38 vacancies, according to the official July 2016 organization charts.

The chronic understaffing is the underlying reason for several findings in the 2015 FAME report (pages 9-13) and the unmet requirements of state law:

• It took DOSH inspectors an average of 20.7 days to open a “non-serious” safety inspection based on a worker complaint. State law allows no more than 14 days to open these inspections.
• The “citation lapse time” in safety inspections (the time needed to issue citations after the opening of an inspection) was 40% higher than the national average – 60.6 days for DOSH compared to 42.8 days nationally.
• State law requires DOSH to conduct “follow-up inspections” of 20% of investigations where “Serious” citations are issued – but Cal/OSHA is unable to meet the state law.
• Cal/OSHA Policies & Procedures require DOSH to conduct inspections of 10% of the worksites where permits have been issued for work with asbestos, lead, in trenches or structure demolitions, but Cal/OSHA is unable to meet the state law.
• State law requires DOSH’s Mining & Tunneling (M&T) Unit to inspect tunnels under construction at least six times a year (every two months) during construction, but Cal/OSHA is unable to meet the state law. The M&T Unit now has half the field inspectors it did 15 years ago at a time when tunnel construction is on the upswing in California.

Cal/OSHA’s understaffing means  – and has meant for years now – that it is simply unable to meet all Federal benchmarks or all requirements of state law.  Since July 2015 all the DOSH field compliance vacancies have been fully funded.  The DIR/DOSH leadership has failed to fill them. “New, additional resources” for DOSH do not mean much if they are not actually used.

Another troubling finding of the most recent FAME report is that a review of randomly selected case files showed that in 11 of 36 inspection case files (30%) where there was a union in the work site, the union was never contacted by Cal/OSHA and had no involvement in the inspection – in violation of both state and federal law (page 14).  Moreover, in 22 of 205 reviewed inspections (11%), Cal/OSHA did not interview any worker in the inspected facility (page 15).

In a review of limited number of fatality inspection case files, the FAME report noted that “next-of-kin” letters were not sent to survivors of fatal accidents in 17% of the cases (page 3).  Another random file review found that in 14% of complaint-generated inspections, workers who had made complaints were not informed of the results of these inspections (page 10).

This lack of worker and union participation in enforcement inspections can only result in incomplete inspections that will not identify all hazards on site and require their correction, keeping workers at risk for no good reason.

The 2015 FAME report also noted that the total recordable case rate for construction increased by 17% during the time period of the audit compared to the 2012-14 average, from 4.1 cases per 100 full time workers to 4.8 cases (page 26).  DIR/DOSH leaders have claimed that California’s injury and illness statistics are better than national levels or other major industrial states, but this is untrue and cannot be used as a reason for failing to fill field compliance inspector vacancies.

The 2015 FAME report noted that only 7% of employer retaliation investigations were completed with 90 days (page D-4).  DIR’s Division of Labor Standards Enforcement (DLSE or the “Labor Commission”) is responsible for investigating reports by workers that their employers have discriminated against them for filing complaints with Cal/OSHA, including cases where workers have been fired and suffered other reprisals.

The average time required to complete a DLSE investigation was 422 days – one year and two months!  Of the worker complaints filed with DIR/DLSE during the audited year, only 21% were found to be “meritorious” while the other 80% were rejected or simply abandoned.

Another critical deficiency at Cal/OSHA not directly addressed in the FAME report has been a continuing lack of field inspectors who can speak a language other than English where approximately 5 million workers in California speak other languages, including many who speak no English at all.

The most recent roster of Cal/OSHA field staff who are receiving bilingual pay indicates only 26 field inspectors are fluent in Spanish and only three are fluent in Asian languages.

Public attention and public pressure over the last three years has paid off in improvements at Cal/OSHA.  However, there are underlying problems that have not been addressed, as noted in the most recent FAME report.  Whatever shortcomings the FAME reports have, it is important to keep shining a light on Cal/OSHA’s actual resources and performance.

A prerequisite for an effective workplace health and safety agency is having enough field enforcement inspectors to meet the requirements of federal and state laws.  California has not yet achieved that.  Staffing levels, of course, are not the only issue at Cal/OSHA, but it is the one that underlines many others.  The people who pay the cost for failure to use available resources and the consequent missed benchmarks are California’s 19 million workers,

Hiring inspectors is not an easy task in California’s inflexible and cumbersome civil service system – but if there was sufficient political will on the part of the Brown Administration and its appointees, this problem could be greatly reduced.  With sufficient political will, the DLSE anti-relation unit would have the staffing it needs to do its job.  With sufficient political will, unions and workers would not be left in the dark during and after on-site Cal/OSHA inspections.  With sufficient political will, special efforts to recruit and hire field staff who speak languages other than English could be undertaken.

Why a labor-backed Democratic Party administration apparently does not have the political will to achieve these goals is an interesting question.  It is one that needs more time and space for a fuller examination.

Garrett Brown is a certified industrial hygienist who worked for Cal/OSHA for 20 years as a field Compliance officer and then served as Special Assistant to the Chief of the Division before retiring in 2014.  He has also been the volunteer Coordinator of the Maquiladora Health & Safety Support Network since 1993.