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Trump’s Worker Safety & Health Budget Again Undermines Worker Safety & Health

Friday, February 16th, 2018

Earlier this week, President Trump submitted his Fiscal Year 2019 budget proposal. This is his second budget proposal, and like the first, although it left OSHA’s budget fairly flat, it once again proposes to slash or eliminate important safety and health programs and agencies.  And this is Trump’s second OSHA budget that has been proposed with no Assistant Secretary yet in residence.  Scott Mugno’s nomination continues to languish in the Senate.

First, the good news. With one major exception (see below), OSHA’s budget would remain mostly level– with a small $5.1 million (2.4% and 42 full time employees) increase over FY 2017 in the enforcement budget, as well as a small $3 million (4.2%) increase in compliance assistance — mostly to add Compliance Assistance Specialists who had been cut in previous years due to budget limitations, and an addition of eight staff to work exclusively on the Voluntary Protection Programs.

Meanwhile, in addition to trying once again to eliminate the Susan Harwood Training Grant Program and the Chemical Safety Board, the administration’s proposal also eliminates two OSHA Advisory Committees dealing with whistleblower protections and federal employee safety and health.

Harwood and the Chemical Safety Board: Deja Vu All Over Again

In what can only be characterized as the triumph of hope over experience, the Trump administration has yet again proposed the elimination of OSHA’s Susan Harwood Worker Training Program and the independent Chemical Safety Board — two proposals that had about as much lift as a Butterball Turkey when the administration floated these ideas in its FY 2018 budget.

Now this budget is not necessarily bad news for us bloggers. I mean, I don’t have to write any new stories about how terrible the elimination of the Susan Harwood Worker Training Program would be for the safety of workers — especially vulnerable workers like the mostly immigrant day-laborers who have been rebuilding Houston after Hurricane Harvey.

And I don’t have to write much new about how pointless the elimination of the Chemical Safety Board would be for chemical plant safety — and the safety of workers at the plants and communities surrounding the plants.

Because you, good readers, already know all of that. But perhaps more important, Congress already knows that. Certainly both the House and the Senate understand the importance of the Chemical Safety Board as they displayed when the relevant Appropriations bills in both houses voted to keep the CSB fully funded in the 2018 budget after the Trump administration recommended its elimination.

Similarly, after being sentenced to death in the Trump administration’s 2018 budget proposal (and in the House of Representatives’ Labor appropriations bill), the Senate Appropriations committee voted on a bipartisan basis to ignore the Administration’s proposal (and the House bill) and maintain the program.

CSB and Harwood: There’s no education from the second kick of a mule.

But these guys aren’t only irresponsible and just plain wrong; they’re also lazy. You’d think that after failing last year to eliminate these programs, they’d at least come up with some new and improved justifications. But no. As in 2018, the 2019 budget erroneously justifies the elimination of the Harwood program on an alleged lack of “evidence that the program is effective.” And they again incorrectly justify the CSB’s elimination on the the ‘relative duplicative nature of its work,” presumably assuming that the CSB duplicates the efforts of OSHA and the Environmental Protection Agency.

The CSB, however, is not discouraged. Being an independent agency, they submitted their own $12.1 million budget request to keep the agency open. The board is currently conducting nine open investigations: Red Mountain Operating, Arkema Inc., Didion Milling Inc., Midland Resource Recovery, Loy Lange Box Co., Packaging Corporation of America, Sunoco Logistics Partners LP, Enterprise Products Partners LP and DuPont.

I’m not going to waste scarce electrons or your valuable time explaining again why these justifications are — to put it mildly — bogus. If you want to re-read what I wrote last here about these proposals, you can start here.  (Here is much more on the importance of the Chemical Safety Board and the Harwood Grants.) And I’m sure we’ll be writing more about the importance of these programs in the near future.

There’s a saying that there’s no education from the second kick of a mule.  With a little lobbying and common sense, we can only hope that the Trump administration will get to witness that phenomenon with its 2019 workplace safety and health budget.

Compliance Assistance and OSHA’s Voluntary Protection Program

OSHA’s federal compliance assistance budget is slated for a 4.2% increase which will include 8 employees fully dedicated to the Voluntary Protection Program and 24 Compliance Assistance Specialists (CAS).  OSHA once had a CAS in every one of its 70 Area Offices, but budget cuts and the hiring freeze had cut those numbers significantly.

VPP, established in 1982 to recognize workplaces with exemplary safety and health management systems, has always been a favorite program of Republican administrations. As we’ve discussed, however, the program has faced significant integrity and funding issues over the past several years. Trump’s OSHA has held two stakeholder meetings to discuss problems with the program and although the outcome of those meetings have never been released by OSHA, the agency is doubling down on VPP growth. According to OSHA’s Congressional Budget Justification,  “with the addition of 24 CAS and 8 VPP staff, OSHA anticipates approving 155 new VPP sites and re-approving 395 sites in FY 2019.”

One notable change in the Trump budget from previous budgets is the total omission of a focus in its compliance assistance program on vulnerable workers, such as day laborers,  temporary workers and workers with limited English proficiency who often work in high hazard industries and are difficult for OSHA to reach. It is a common myth that the Obama administration focused totally on enforcement to the neglect of compliance assistance. The truth is that the Obama administration conducted a major compliance assistance program, but instead of focusing exclusively on assistance for employers, the Obama administration focused compliance assistance resources on helping vulnerable workers. OSHA’s CBJ doesn’t even mention vulnerable workers or working with labor unions in its Compliance Assistance section, focusing exclusively on broadening “its reach, assistance, and support to small businesses and other employers working to comply with OSHA requirements and protect their workers,” as well as working with more “trade associations, organizations, and employers it engages with directly through its cooperative programs.”

OSHA Standards

OSHA’s Budget Justification states that it plans to issue three final rules, including one on beryllium, and four proposed rules. As you may recall, OSHA proposed last June to weaken beryllium protections for maritime and construction workers.  (The schedule for this is a bit unclear as the CBJ also states that “OSHA anticipates that this rulemaking will proceed fairly quickly with a proposal either late 2018 or very early 2019.” Given that OSHA already issued a proposal in June 2017, it’s unclear whether this statement means they’ll issue a new proposal or it’s just a result of  lousy proofreading.)

Other final standards include a minor revision addressing respirator fit-test methods, and a revision of the recordkeeping standard.  OSHA has stated for some time that it doesn’t like parts of the Obama administration’s electronic recordkeeping regulation which requires employers to send injury and illness data to OSHA, and to prohibit retaliation against workers for reporting injuries or illnesses.  Given that no proposal has yet appeared, it’s possible, but unlikely that a final revised rule will be issued before October 1, 2019, the end of FY 2019.

The only small business (SBREFA) review mentioned is one for a cell tower standard. No mention of a SBREFA panel for workplace violence. SBREFA is the first formal step of the regulatory process.

In addition to numerous guidance products, OSHA plans to use its standards funding to throw a bone to its industry friends by conducting “retrospective reviews to revise and update existing standards in ways that will better protect workers and, where possible, reduce burden on employers.” Don’t expect much there. A thorough review of a standard or regulation takes years and generally confirms that the original standard protected workers more effectively, and at a lower cost than OSHA had originally predicted.

NIOSH

As it did last year, the Trump administration proposes to whack NIOSH, continuing to show its disdain for evidence-based practice that is supported by real research.  Trump is again proposing to cut NIOSH job safety research by $135.2 million (40%), and proposes to eliminate educational research centers, agriculture, forestry and fishing research centers and external research programs.

Then it gets weird. Trump is proposing to take NIOSH out of CDC and then possibly combine it at a later date with other parts of the National Institutes of Health.  Section 22 of the Occupational Safety and Health Act established the National Institute for Occupational Safety and Health in the Department of Health and Human Services to “conduct research,experiments, and demonstrations relating to occupational safety and health.”  NIOSH is currently part of the Centers for Disease Control, which is also part of HHS.  How this envisioned reorganization will work with the OSHAct that establishes a separate institute specifically for Occupational Safety and Health remains to be seen. Meanwhile, the World Trade Center Health Program (administered by NIOSH director by law) would remain at CDC.

MSHA

Fifteen coal miners died on the job in 2017, compared with only 8 in 2016, but Trump apparently sees those troubling numbers as a reason to cut coal enforcement by $3 million. the overall budget for the agency will increase by $2 million, with funding for metal/non-metal enforcement increasing by $2.5 million

Advice? We Don’t Need No Stinkin’ Advice

OSHA has several advisory committees comprised of outside experts intended to advise, consult with and make recommendations to OSHA and DOL leadership about how to improve worker safety and health.  The agency currently has five advisory committees:  The National Advisory Committee on Occupational Safety and Health (NACOSH), the Maritime Advisory Committee for Occupational Safety and Health (MACOSH), and the Advisory Committee for Construction Safety and Health (ACCSH), the Federal Advisory Council on Occupational Safety and Health (FACOSH) and the Whistleblower Protections Advisory Committee (WPAC.)   NACOSH and ACCSH were established by law and the others by the Secretary of Labor and the White House.

Trump wants to eliminate two OSHA Advisory Committees and none have met in over a year

The committees are populated with national experts representing labor, management and public agencies who rotate every few years. Advisory committees traditionally meet two or three times a year, but none have met in the first 13 months of this administration.

Trump’s OSHA budget proposes to eliminate two of the agency’s five advisory committees: FACOSH and WPAC.  WPAC is the newest advisory committee and was established in 2012 to help OSHA “improve the fairness, efficiency, effectiveness, and transparency of OSHA’s administration of whistleblower protections.” WPAC was one of the many initiatives undertaken in the Obama administration to improve the operation of OSHA’s troubled Whistleblower Program, including creating a separate directorate and a separate budget item.  Achievements of the committee include the publication of the first-ever Recommended Practices for Employers for Addressing and Preventing Retaliation which assists employers in creating workplaces in which employees can voice their concerns without fear of retaliation.

Federal employees are not covered under the Occupational Safety and Health Act, but were provided protections by Executive Order 12196 which requires each federal agency to “Furnish to employees places and conditions of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  Executive Order 11612, issued by Richard Nixon, established FACOSH in order to “advice on how to reduce and keep to a minimum the number of injuries and illnesses in the federal workforce and how to encourage each federal Executive Branch department and agency to establish and maintain effective occupational safety and health programs.” Federal OSHA can cite, but not fine federal agencies and has uncovered and corrected a number of serious safety and health problems in the nation’s military bases, hospitals, prisons, hospitals and other federal facilities.

Elsewhere:

In related news, Trump’s budget

  • Cuts EPA’s budget by 34% so that the agency can eliminate “lower priority programs” and refocus on “core activities.”  Among the “lower priority programs” that the EPA is proposing to eliminate are those that address the only environmental threat that can literally destroy the earth as we know it — climate change.  After all, climate change may be good for us. “Core Activities” that need more funding apparently refer to a swollen security detail for EPA Administrator Scott Pruitt, his high security communications chamber and, of course, his first-class travel to points domestic and foreign.
  • Cuts the Centers for Disease Control and Prevention: In the midst of a flu pandemic and the ever-present threat of Ebola and the emergence of other “new” diseases, Trump is proposing to cut back CDC’s budget by $1 billion.

  • Cuts National Labor Relations Board by $25.2 million (9%)

  • Cuts Employment and Training Services by $1.3 billion (39%)

  • Cuts Unemployment Insurance and Employment Services by $45.4 million (13%)

  • Cuts Job Corp by $40.7 million (24%)

  • Eliminates the Older Worker Program

  • Cuts Office of Federal Contract Compliance Programs (OFCCP) by $13.4 million (13%). OFCCP  ensures that contractors and subcontractors who do business with the federal government comply with the legal requirement to take affirmative action and not discriminate on the basis of race, color, sex, sexual orientation, gender identity, religion, national origin, disability, or status as a protected veteran.

  • Cuts Labor Department’s International by $67.6 million (79%)

  • Cuts Women’s Bureau by $7.6 million (68%)

  • Proposes $8.5 million (22%) increase for Office of Labor-Management Standards (OLMS) enforcement. OLMS ensures that union elections and finances are conducted legally. Republican administrations traditionally use OLMS to harass unions; hence the increased funding.

What’s Next?

This is the beginning of the FY 2019 budget process. FY 2019 begins on October 1, 2018, but the budget will not be passed by then. No Congress in recent memory has finished a budget by the end of the budget year and that prospect is even less likely in an election year.

The next step in the process will be Secretary Acosta’s testimony before the House and Senate appropriations committees.  There will then be long deliberations in the House and the Senate, and eventually both Houses of Congress and the President will have to come up with a budget that they agree on.  The process is more difficult in the Senate because 60 votes are needed to pass a budget. And as we saw last year, the House budget was much worse than the President’s proposal (although they did vote to maintain the CSB), while the Senate’s OSHA budget was better then the President’s proposal.

And, of course, depending on the outcome of the Congressional elections on November 6, Trump could be facing a Democratic House of Representatives and/or a Democratic Senate, and a Democratic majority in either house of Congress would drastically change the final budget that emerges from this process.

But nothing good in this country happens by itself. It happens because knowledgeable and caring citizens ensure that their Senators and Congressional Representatives understand the importance of these programs in protecting worker safety and health. That’s where you come in. Especially in an election year, it’s important that those running for office understand the daily hazards facing American workers and the role of the OSHA and other government agencies in making sure workers come home safely at the end of the day.  And already, just days after release of the President’s budget, opposition to his proposal to eliminate the CSB has begun.

And there will be more.

This blog was originally published at Confined Space on February 15, 2018. Reprinted with permission.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

Do Fewer OSHA Inspectors Matter?

Wednesday, January 17th, 2018

One sign that anti-OSHA conservatives are getting nervous about articles (and television appearances) highlighting the declining number of OSHA inspectors are articles questioning whether government plays a useful role in protecting workers. In this case, the Reason Foundation, which “advances a free society by developing, applying, and promoting libertarian principles, including individual liberty, free markets, and the rule of law,” has concluded that reducing the number of OSHA inspectors has no effect on workplace safety.

When I see an article entitled Will Deregulation Kill Workers? by Reason Magazine assistant editor Christian Britschgi, normally I wouldn’t bother to give them any undeserved attention, but some of the arguments he uses are, unfortunately, still commonly used by conservatives in the media and Republicans in Congress, and from time to time we need to expose them.

Based on writings by Bentley University economist John Leeth, Britschgi is basically saying that OSHA isn’t needed because “Employers have much stronger incentives than OSHA to provide a safe workplace.” What are these “stronger incentives” that make OSHA enforcement superfluous?

Workers Compensation: Workers comp, they note, grows more expensive with new injuries and accidents.  And it’s much more significant than OSHA penalties because “workers comp policies cost employers $91.8 billion in 2014…. Total OSHA penalties in that same year totaled only $143.5 million.”

OK, well first, if those numbers are relevant, then that sounds like a great argument to increase OSHA penalties significantly. But the fact is, because State legislatures and courts have undermined workers compensation benefits for injured workers, workers comp covers less and less of the real cost of workplace injuries and illnesses, according numerous studies cited in a 2015 OSHA report, Adding Inequality to Injury:

workers’ compensation payments cover only a small fraction (about 21 percent) of lost wages and medical costs of work injuries and illnesses; workers, their families and their private health insurance pay for nearly 63 percent of these costs, with taxpayers shouldering the remaining 16 percent.

Moreover, most workers injured or made ill on the job don’t even receive workers compensation and vulnerable and low-wage workers fare even worse.  Finally, compensating workers for occupational disease is almost non-existent. One study estimates that as many as 97 percent of workers with occupational illness are uncompensated.

Labor markets: Workers would rather work where it’s safe, so they will naturally take jobs working in safer companies rather than unsafe companies. Unsafer companies will therefore be forced to pay workers more to attract them to their unsafe workplaces.  This will provide a natural incentive for employers to make their workplaces safer because if their workplaces are safer, they won’t have to pay workers as much.

Now I’m not a credentialed economist, but even I can find major holes in this theory.  First, such a theory relies on workers having perfect information about which companies are safer than others. Now, this is interesting, because that’s exactly the theory the Obama administration used when issuing its electronic recordkeeping standard. Companies would be required to send their injury and illness information to OSHA and OSHA would post that information, allowing workers to choose safer companies. What’s interesting is that corporate America and Trump’s OSHA has done everything it can to ensure that employer safety records are not made public, from discouraging press releases to opposing the OSHA recordkeepign regulation, claiming that such information unjustly “shames” employers.

The “labor market” theory also assumes that workers would be able to simply and easily move from one (unsafe) employer to another without any loss of income –even assuming there is a safer employer down the street. Obviously that’s often not possible and in any case, that’s easier for high wage workers to lose a little income by changing jobs than lower wage employees who may be living paycheck to paycheck.  And if there are enough desperate workers who need a job, any job, that higher paying, unsafe job isn’t going to pay more for very long.  You’ll have the more common race-to-the-bottom, rather than a race to the top.

Finally, this equation puts workers in a position of choosing between safe jobs or better pay. If you happen to be in a post-Obamacare world with no health insurance and have a sick kid, you might be inclined to take the unsafe, higher paying job.  This is not a choice that we want workers to be forced to make — either from the viewpoint of morality, or the general public welfare. The whole point of the Occupational Safety and Health Act was to eliminate the need for workers to ever have to choose between their jobs and their lives, or better pay and their live.

The ability to sue over workplace injuries and health hazards: Huh? Employees don’t have the ability to sue over workplace injuries. The deal when workers compensation laws were first created is that this would be a “no-fault” system; workers give up the right to sue their employer, in return for relatively certain access to benefits following their injury. (Or at least that was the theory.) Britschgi would have known that (and taken safety and health more seriously) if he had read this article and listened to the accompanying video.

That fact that Britschgi, an assistant editor of Reason Magazine (and presumably his superiors) don’t know that workers can’t sue their employers should have sent this article directly to my Trash folder, so why am I bothering to even address it? I mean, for all I know, he’s 18 years old and this is his first job. Give the kid a break.

Because, as I said above, clearly he is not alone in his ignorance. There are undoubtedly lots of other people out there who think that workers can sue their employers. And easily move to safer jobs. And just rely on workers comp if they get hurt.

The bottom line is that more cops on the beat will make drivers drive more safely, just as more OSHA inspectors will make employers provide safer workplaces. It’s as American as law and order.

This blog was originally published at Confined Space on January 16, 2018. Reprinted with permission.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

Workers' lives take a back seat under Donald Trump

Wednesday, January 10th, 2018

America’s bad bosses can’t help but get the message from the Trump administration: your workers’ safety is not a priority.

In the months after President Donald Trump took office, the Occupational Safety and Health Administration lost 40 inspectors through attrition and made no new hires to fill the vacancies as of Oct. 2, according to data obtained through a Freedom of Information Act request.

The departing inspectors made up 4 percent of the OSHA’s total federal inspection force, which fell below 1,000 by early October.

In 2015, OSHA only had enough inspectors to inspect workplaces once every 845 years, according to the AFL-CIO’s Death on the Job report, which meant that most workplaces would only see an inspector after something terrible happens. At this rate, even that won’t be a sure thing in a few years.

This blog was originally published at DailyKos on January 8, 2018. Reprinted with permission. 

About the Author: Laura Clawson is labor editor at DailyKos.

OSHA Is Bleeding: Shrinking Government and Killing Workers

Monday, January 1st, 2018

Washington Post reporters Lisa Rein and Andrew Ba Trim published an excellent front page article today chronicling Donald Trump’s largely successful effort to shrink the federal government: “By the end of September, all Cabinet departments except Homeland Security, Veterans Affairs and Interior had fewer permanent staff than when Trump took office in January — with most shedding many hundreds of employees.”

Trump hasn’t succeeded yet in passing a budget with significant cuts, so most of the reductions have come from hiring freezes, failure to hire political appointees, and increased retirements (accelerated by buy-outs) of disillusioned and frustrated career employees.

While some people who reflexively think that government is bad are cheering, the fact is that these reductions mean less protections for workers, the environment, consumers, communities, children, the poor and just about everything that makes life in this country “great.”

The Impact on OSHA and on Workers

But you’re not reading this to understand the national cataclysm; you want to know about the effects on workers and workplace safety and health.

Anti-government activist Grover Norquist was famously quoted as saying “I don’t want to abolish government. I simply want to reduce it to the size where I can drag it into the bathroom and drown it in the bathtub.”

But tragically, what we’re looking at is not just government being drowned in a bathtub, but more workers actually dying in a bathtub.

Because when it comes to workplace safety, cutting the bureaucracy means undermining enforcement, protection for whistleblowers, support for vulnerable workers and help for small businesses.  Some of OSHA’s regional staff state that because of the hiring freeze, OSHA’s enforcement and whistleblower programs are “falling apart at the seems.” The agency is “just bleeding.”

OSHA’s enforcement and whistleblower programs are “falling apart at the seems.” The agency is “just bleeding.”

When President Trump came into office almost a year ago, he implemented a government-wide hiring freeze. That freeze stayed in place at OSHA until recently, when Secretary of Labor Alex Acosta, apparently alarmed that OSHA inspection number had dropped precipitously in 2017, partially lifted the hiring freeze at OSHA, announcing in his opening remarks at a Senate hearing last month that “In August 2017, I provided OSHA with blanket approval to hire OSHA Compliance Safety and Health Officers (CSHOs), streamlining the hiring process to bring new OSHA staff on board in an expedited manner to ensure that OSHA has the necessary personnel to carry out its important work.”

But while it is true that Acosta lifted the hiring freeze for OSHA inspectors, the process is anything but streamlined from what I hear from OSHA staff. Approvals for CSHO hiring are trickling out at a snail’s pace, barely keeping up with retirements.

Second, the agency doesn’t live by CSHOs alone.

I discussed these problems with Lisa Rein, part of which she related in today’s article:

In some agencies, the number of people leaving has been crippling, according to former officials. At the Occupational Safety and Health Administration, a wave of recent retirements has depleted the managerial staff at the enforcement agency’s 70 field offices, said Jordan Barab, who was a top OSHA official in the Obama administration. In all, the agency shed 119 permanent workers by the end of September, a 6 percent drop, personnel data shows.

“It’s starting to create major problems,” Barab said. Enforcement actions must be reviewed by supervisors in multiple offices, he said, and if too many months pass, they can be thrown out. “You can’t run an enforcement agency with no managers.”

As usual, with interviews, that was only a small part of how I described the impact on OSHA.

OSHA is, first and foremost an enforcement agency. That means that in order to ensure safe workplaces, the agency must have sufficient staff to inspect workplaces to ensure that employers are in compliance with OSHA standards and other safe workplace procedures. And, ideally, the agency should have sufficient, up-to-date standards to provide a floor for workplace safety. The agency also has a robust compliance assistance program which formerly had a Compliance Assistance Specialist (CAS) in every one of OSHA’s 100 regional and area offices. Because of budget cuts over the past several years, however, many OSHA offices no longer have CASs.  OSHA also needs enough whistleblower investigators to ensure that workers are allowed to exercise their health and safety rights without fear of retaliation.

OSHA has never had enough staff to perform all of those functions adequately. The AFL-CIO reports that if OSHA were to inspect every workplace in the nation just once, it would take 159 years. And the situation has gotten significantly worse. Since 1980 when Ronald Reagan was elected, the number of workers in the economy has increased by 50% and the number of OSHA inspectors has shrunk by more than 45%. OSHA had 5.3 compliance officers per million workers in 2016, compared with 14.8 in 1980.

So where are we today and what is the impact of Trump’s efforts to shrink government?

Just hiring inspectors only addresses part of the problem. The hiring freeze continues for OSHA managers, administrative staff, whistleblower investigators and others. And this presents a major problem for workers.

As I said above, OSHA has only 6 months to complete an inspection. One day more, and the gets thrown out. Now, I’m not too worried about OSHA cases being thrown out for running over the deadline. I’m more concerned about the quality, speed and scope of the investigations. Too much work and too little staff will mean a number of things, none of them good:

  • In a quest to keep the inspection numbers up, OSHA inspectors may focus on the “easy” cases. A construction site, for example, will yield more and faster inspections and citations than a workplace violence case, a major chemical release or a case involving musculoskeletal injuries.
  • Just hiring CSHO’s and not filling managerial, administrative or legal staff just moves the bottleneck from the inspection itself, up the ladder.The larger and more complicated a case is, the more levels of OSHA (and Solicitor) review it must go through, and the greater likelihood that it will be challenged in court. If OSHA doesn’t have all of its ducks in a row, the case will be lost and if cases are lost in court because there isn’t enough managerial or legal staff to conduct a thorough review, it’s not just a legal problem, it’s a safety problem. The hazards will not  be eliminated and more workers will get injured, ill or killed.
  • And the failure to hire administrative staff means that instead of inspecting workplaces and managing cases, CSHO’s and supervisors spend their shrinking time inputting data, filing reports and doing all of the other administrative work that would better be done by administrative staff. Not exactly a good use of taxpayer dollars.
  • And even if cases aren’t dropped for failure to meet the 6-month deadline, they will take longer to issue. And being as employers don’t have to fix the problems in their workplaces until the citations are issued, workers will be exposed to dangerous conditions for longer.
  • A shortage of inspectors means that many offices only have time to react to worker fatalities and hospitalizations after they happen, rather than putting resources into pro-active planned (or programmed) inspections of high-hazard workplaces.
  • Retirements don’t happen evenly across the agency. Some area and regional offices are hit much harder than others. But a hiring freeze reduces OSHA’s ability to staff up  in those offices that are having the most shortages.   Either the workers covered by those offices are under-served, or staff has to be temporarily assigned to the problem offices, further increasing the agency’s budget problems.

The Post also notes that the Department of Labor “declined to comment on the current number of OSHA managers but said that new inspectors have been hired in recent months, helping increase the number of safety and health inspections in 2017 — the first such boost in five years.”

This is patently false. OSHA hasn’t had a budget increase since 2010,  and I can’t find anyone inside or outside of OSHA who can tell me what they’re talking about.

Whither The Whistleblower Program?

The hiring freeze also remains for whistleblower investigators. About 60% of OSHA whistleblower cases address retaliation against a worker for exercising their health and safety rights, the other 40% fall under 21 additional whistleblower laws that Congress has given OSHA to enforce — everything from environmental laws, rail safety, nuclear power plants, the Sarbanes-Oxley Act and many others.

Until the Obama administration, the whistleblower program had been neglected stepchild at OSHA — underfunded and ignored. Enormous progress was made over the 8 years of the Obama administration, creating a separate directorate, a separate budget item, making it easier to file complaints on-line, increasing staff, modernizing procedures, re-organizing management and reducing the backlog of open cases. Nevertheless, even with significant progress, the program remains troubled and underfunded, and the continuing hiring freeze threatens much of the progress made during the Obama administration with the backlog of open cases rising back to unacceptable levels.

Agencies on Death Row

The Post also discusses the impact of Trump’s — as yet unsuccessful — plan to eliminate the Chemical Safety Board. The reports of the death of the CSB is most likely premature as both the House nor the Senate budget bills fully fund the agency for FY 18, but the threat nevertheless has an effect. Aside from the obvious hit on the staff’s morale, Board Chair Vanessa Sutherland describes how the CSB’s tiny staff has to spend time planning for its own demise, even while conducting its normal business of investigating chemical plant incidents.  And although it’s not raised in the article, it will inevitably make it harder to attract (or retain) talented staff while the Sword of Damocles weighs over its head.

Conclusion

So, you might ask, how does any of this make sense?

Fourteen workers a day were killed in the workplace last year, and the number of workers killed annually has gone up for the last three years.  Workplace deaths and injuries are estimated to cost between $250 billion and $360 billion a year, and OSHA’s current annual budget is a measly $552 million.

The bottom line is that shrinking government is not just about reducing employees and “bureaucrats,” and saving taxpayer dollars; it means limbs severed and lives lost.

Post journalist Juliet Eilperin in a short article in today’s “2018: The Year in Preview” section predicts that “Trump’s war on the bureaucracy will hit some limits — it’s hard to shrink government and also keep it operating.”

But that doesn’t make me feel better.

Because maybe they don’t want to keep it operating.

This blog was originally published at Confined Space on December 31, 2017. Reprinted with permission.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME). He has also worked for the House Education and Labor Committee, the Chemical Safety Board, the AFL-CIO and an earlier stint at OSHA during the Clinton administration.

OSHA Rejects GAO Poultry Recommendations: Sees No Problem With Workers’ Restroom Access

Tuesday, December 12th, 2017

In a surprising and disappointing apparent rollback of OSHA’s enforcement policy related to poultry inspections, Acting Assistant Secretary Loren Sweatt has rejected recommendations from the Government Accountability Office (GAO) designed to address findings that poultry workers are intimidated about reporting health and safety problems to OSHA, particularly about their inability to get bathroom breaks. The GAO recommended in a report released last week that OSHA “consider off-site interviews or exploring other options to obtain information anonymously,” and that OSHA inspectors make a greater effort to ask poultry workers about the extent to which bathroom access is a problem.

The GAO report is a follow-up to its May 2016 study that found meat and poultry workers have the highest injury rates of any industry, and that even those numbers are underreported.  The current report notes that the meat and poultry industry had the 8th highest number of recent severe injury reports of all industries, although the industry’s self-reported injury and illness statistics declined from 2004 through 2015. Severe injury reports result from a recent OSHA requirement that employers report to OSHA all hospitalizations, amputations and loss of an eye (in addition to fatalities.)

GAO also observed that while OSHA had increased its annual inspections of the meat and poultry industry from 177 in 2005 to 244 in 2016, it’s still a tiny proportion of the 5,282 meat and poultry plants in the United States that employ an estimated 481,000 workers.

The report was conducted at the request of Senators Patty Murray (D-WA) and Robert Casey (D-PA), and Congressman Bobby Scott (D-VA).  In addition interviewing OSHA and USDA staff, the GAO conducted group and individual interviews with meat and poultry workers in six locations in five states: Arkansas, Delaware, Nebraska, North Carolina, and Virginia.

The report comes in the midst of a highly controversial industry effort to increase the line speed in poultry processing plants, a change that would increase musculoskeletal injuries suffered by poultry workers.

Intimidation

The GAO found that although the number of OSHA inspections had increased over the past ten years, OSHA “faces challenges identifying and addressing worker safety concerns because workers may be reluctant to contact OSHA for fear of employer retaliation.” Because OSHA interviews workers in the workplace, and those interviews are conducted in private, the supervisor still knows the identities of interviewed workers. Making the problem worse, according to GAO, “some meat and poultry workers may be less likely to report or seek treatment for injuries and illnesses because of their vulnerable status as undocumented or foreign-born workers and because of their economic vulnerability.”

Interviews with workers revealed widespread complaints about supervisors discouraging workers from using the restroom

Aside from workers being reluctant to report serious safety and health conditions, the problem most overlooked may be their lack of bathroom access. Interviews with workers revealed widespread complaints about supervisors discouraging workers from using the restroom. OSHA guidance issued in 1998 states that denial or delay of bathroom access can result in various serious health effects, such as urinary tract infections, constipation, abdominal pain, and hemorrhoids, and workers interviewed by the GAO also reported that they had suffered health effects like kidney problems from delayed or denied bathroom breaks. Under OSHA’ sanitation standard (CFR 1910.141), employers are required to make toilet facilities available so that employees can use them when they need to do so.

According to GAO:

Workers we interviewed in all five states said their requests to use the bathroom are often delayed or denied, and workers in two states said they fear punishment if they ask to use the bathroom too frequently or complain about lack of bathroom access to their supervisors or to OSHA. One industry representative told us they believe some supervisors in meat and poultry plants deny bathroom access in order to maximize production output.

The problem with enforcing the right of a worker to go to the bathroom, according to the GAO,  is that if workers fear dismissal or other punishment for talking to OSHA about bathroom breaks, OSHA inspectors may not become aware of the problem. Furthermore, OSHA inspectors do not always ask specifically about bathroom access, and workers who experience bathroom access problems may not volunteer this information either because they’re afraid or because they may not realize that such information would be of interest to OSHA.

Common Sense Recommendations:  Rejected

In order to address the intimidation issue, learn more details about hazards, injuries, and illnesses and gather more information about bathroom break problems, the GAO made two recommendations to OSHA: First, that OSHA should “take additional steps to encourage workers to disclose sensitive concerns during OSHA inspections of meat and poultry plants; for example, by considering additional off-site interviews or exploring other options to obtain information anonymously.”

Second, in order to determine whether, and to what extent bathroom access is a problem, OSHA should simply ask workers during meat and poultry plant inspections about whether bathroom access is a problem.

But despite the GAO’s findings, OSHA leadership doesn’t think there is a problem that has to be dealt with, and anyway, it would be too much trouble. A letter from Deputy Assistant Secretary Loren Sweatt accompanying the report states that:

GAO’s recommendation to conduct additional offsite interviews, however, is challenging in terms of witness cooperation, resources and CSHO safety. Moreover each inspection requires a flexible approach to address unique workplace hazards.  OSHA cannot commit to asking about bathroom access during each inspection at a meat or poultry processing facility.

Nothing in these GAO recommendations is particularly new or novel. OSHA’s Field Operations Manual, which sets forth the procedures under which OSHA conducts inspections and enforcement, emphasizes the importance of “a free and open exchange of information between OSHA inspectors and employees” and allows inspectors to conduct interviews off site when they feel that off-site interviews would be more effective.  The problem is that if the workplace doesn’t have a union, or worker advocates that are helping the workers, it can be difficult to find an acceptable time and venue.

Furthermore, an OSHA poultry directive, issued in 2015 and currently under legal challenge, authorizes inspectors to expand inspections beyond other hazards that may be the subject of the inspection — including musculoskeletal injuries and bathroom access —  and some regional OSHA poultry emphasis programs require inspectors to inquire about bathroom access.

In rejecting these GAO recommendations, OSHA may be signalling a reversal in long-standing OSHA enforcement policy. 

Thus, in rejecting these GAO recommendations, OSHA may be signalling a reversal in long-standing OSHA enforcement policy. Deborah Berkowitz of the National Employment Law Project and a former OSHA official in the Obama administration, was quoted in Inside OSHA saying  “We are stunned that OSHA’s response to the glaring findings in this report is to announce a rollback of longstanding enforcement policies, thereby ensuring that the poultry industry will have an easier time hiding serious hazards. The inevitable result will be even more injuries to this already vulnerable worker population. That is simply unacceptable.”

See No Evil, Hear No Evil…

According to GAO, “OSHA officials said they did not believe lack of bathroom access was a widespread problem in the meat and poultry industry” and offered a number of creative explanations:

  • OSHA has not compared bathroom access practices in the meat and poultry industry with other industries involving moving production lines because they vary by establishment even within a single industry. (This, even though OSHA has cited poultry establishments for lack of bathroom access a number of times.)
  • requiring inspectors to investigate bathroom access would divert inspectors’ limited resources from higher-priority hazards and could result in companies’ claiming that the line of questioning is unsubstantiated.
  • there were a small number of citations issued related to bathroom access. (Of course, this is somewhat circular reasoning: The GAO argued that the reason for few citations may be that workers don’t raise the issue unless OSHA inspectors ask about the problem. See no evil, hear no evil…)

And in an understatement one rarely hears from government bureaucrats, GAO stated that “There is a mismatch between concerns we heard from workers and the problems reported by OSHA, particularly in the area of bathroom access” and kindly suggested that “given that workers whom we asked about bathroom access during off-site interviews in all five states said that bathroom access is a problem, and worker advocates we interviewed stated it was as well, it is

possible that OSHA is missing instances of this hazard, resulting in incomplete data to guide its inspections.” True, it is possible.

In an understatement one rarely hears from government bureaucrats, GAO stated that “There is a mismatch between concerns we heard from workers and the problems reported by OSHA, particularly in the area of bathroom access.”

But I am less charitable than GAO. I suspect that the real reason for OSHA’s blindness may not just be innocent naïveté, but rather a bit of over-attentiveness to their industry friends who don’t seem overly concerned about the problem. The GAO reported that “Meat and poultry industry representatives we interviewed said that bathroom access is not a problem because companies provide bathroom access when needed.”  And after the report was issued, the National Chicken Council, the National Turkey Federation and the U.S. Poultry & Egg Association said that the poultry industry “is constantly looking at ways to continue to improve” worker safety, and Barry Carpenter, president of the North American Meat Institute explained that “In a tight labor market like the one we have now, there is an even stronger incentive to protect our employees and ensure that they are healthy and able to perform their jobs.”

And just to make sure that OSHA never sees bathroom access as a problem, poultry employers have sharply increased the number of denials of entry to OSHA inspectors — forcing them to get a warrant — as OSHA increased inspections of poultry plants during the Obama administration and began expanding inspections beyond the initial complaint incident to look at things like musculoskeletal injuries and bathroom breaks.  From 2005-2015, there were only 16 denials of entry in the meat and poultry industry, but in just 2016 alone, there were 15 denials, all in Region IV, specifically in Georgia, Alabama, Florida and Mississippi.

Other Issues

Medical Mismanagement: The GAO also confirmed problems that OSHA had previously identified with medical mismanagement of workers suffering from musculoskeletal disorders, including inappropriate medical treatment, lack of worker access to health care, underqualified practitioners, and challenges to reporting. In one case, OSHA reported that a number of workers were fired after suffering MSDs — sometimes on the same day of the MSD occurrence — and in another case a worker made over 90 visits to the nursing station before referral to a physician. GAO talked to workers and worker advocates who reported similar problems. GAO recommended that OSHA revise its medical management guidance and OSHA agreed.

Cooperation With FSIS: A 1994 Memorandum of Understanding between the Department of Agriculture’s Food Safety and Inspection Service (FSIS) and OSHA calls for FSIS inspectors — who are present in most poultry plants —  to make referrals to OSHA when they identify unsafe conditions. FSIA is responsible for ensuring the food safety of meat and poultry products. Despite efforts in recent years and some cross-training of FSIS inspectors, such referrals are rare, partly because FSIS inspectors fear that referrals to OSHA may trigger an OSHA inspection of FSIS due to a number of hazards FSIS inspectors are exposed to. GAO made three recommendations related to these issues to encourage OSHA and FSIS to work more closely together and to address hazards faced by FSIS inspectors from chemicals used to disinfect chickens. FSIA was noncommittal.

Research: Finally, GAO made a recommendation to the National Institute for Occupational Safety and Health (NIOSH) to study safety and health hazards of FSIS inspectors’ exposure to peracetic acid. NIOSH agreed.

What Others Are Saying

I’m not the only one upset about this report and OSHA’s response.

Industry watchdog Nebraska Appleseed, applauded the report quoting a former meatpacking worker in Nebraska: “Meatpacking plants are not only slaughterhouses for pigs, they are also slaughterhouses for humans,” said Lupe Vega-Brown.”They exploit you and after you get injured, they will fire you. Within a few years of working at a plant, it will end your dreams.”

A NELP statement added:

Echoing the finding of its 2016 report, the GAO was particularly critical of how in-plant health units treat injured workers—highlighting new concerns of inappropriate response to worker injuries and illnesses and persons working outside their legal scope of practice. (The 2016 report confirmed that meat and poultry workers continued to face the same hazardous conditions previously cited by the GAO in 2005—including traumatic injuries from machines and tools, exposure to chemicals and pathogens, and fast-paced repetitive tasks associated with musculoskeletal disorders.)

According to an Oxfam statement:

“The health and safety problems that workers face in poultry processing plants have been exacerbated in the past year due to a growing climate of fear and oppression in an industry where workers are mostly immigrants, refugees, and people of color,” said Alex Galimberti, Senior Advocacy and Collaborations Advisor for Oxfam America. “Every day, workers experience problems, such as denial of treatment for repetitive motion injuries, lack of access to bathroom breaks, and sexual harassment. Most of the time, they feel unsafe reporting these issues to federal agencies or to top level management.”

Oxfam issued a report in 2016 about the bathroom break problem in the poultry industry.

The United Food and Commercial Workers union praised the report and tied it into the industry’s recent push to increase line speeds:

“The hard-working people who work in poultry plants have some of the most dangerous and physically demanding jobs in America. This report sadly confirms that many of these skilled professionals who keep our food safe are struggling to keep themselves safe at work. They have earned and deserve better.

“The dangers endured by poultry workers that are highlighted in this report also underscore why a recent request by the National Chicken Council to increase line speeds defies common sense and is being clearly driven by greed. We urge the U.S. Department of Agriculture to take this report seriously and reject that request so that poultry workers and the food we all consume can be kept safe.”

Congressman Bobby Scott and Senator Patty Murray made the following statements:

“When workers face intimidation, retribution, or fear losing their jobs for reporting hazards, seeking medical treatment, or simply using the restroom, it is incumbent on federal agencies to increase their responsiveness to those concerns,” said Congressman Scott (VA-03). “In addition, GAO reported that during 2016, 15 meat and poultry plants –all in the southeast—have refused OSHA access to expand complaint inspections to cover additional recognized hazards; this development has impaired OSHA’s ability to protect workers, and should compel the Department of Labor to vigorously defend its statutory authority to enter plants ‘without delay’.”

“Every worker should be able to make a living without risking their health or safety, so it’s deeply concerning to hear workers in meat and poultry factories are knowingly being put in harm’s way,” said Senator Murray (D-WA). “Given this report’s findings and the Trump Administration’s continued efforts to undermine worker protections, it’s clear our nation’s top health and safety agency needs a leader who has a record of fighting for workers lives and livelihoods—and I will continue to press OSHA nominee Scott Mugno on his commitment to put workers ahead of corporations’ bottom lines.”

This blog was originally published at Confined Space on December 12, 2017. Reprinted with permission. 

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

Workers’ rights are being abused as they rebuild in the wake of Hurricane Harvey

Tuesday, November 28th, 2017

Day laborers, many of them undocumented, are reportedly being exploited as they rebuild after Hurricane Harvey, and their health and economic well-being are are stake.

According to a report from the National Day Laborer Organizing Network and University of Illinois Chicago that surveyed 360 workers, 26 percent of workers have experienced wage theft in their post-Harvey work and 85 percent did not receive health and safety training. Sixty-one percent of workers did not have the necessary respiratory equipment to protect them from mold and chemicals, 40 percent did not have protective eyewear, and 87 percent were not informed about the risks of working in these unsafe buildings.

Workers have been exposed to mold and contamination on a regular basis, and regardless of whether workers are undocumented, they often aren’t aware of their legal protections, according to the report. To make matters worse, Texas is the only state that lets employers opt out of workers’ compensation for work injuries.

Advocates for different labor groups focusing on undocumented laborers have been speaking out on the issue of exploitation and visiting work sites to survey workers and pass out flyers with information on labor rights. There is tension between these advocates in Houston and Texas Governor Greg Abbott (R) on how the federal funds for hurricane recovery should be distributed. According to the Guardian, worker groups would prefer the money be distributed through the office of Houston Mayor Sylvester Turner (D), since the mayor is seen as a progressive ally. They’re afraid that if the money is instead distributed through the general land office run by George P. Bush, as Abbott wants, immigrant and worker groups won’t receive the aid they need.

The Associated Press interviewed workers hired by individual homeowners, subcontractors working on residential and commercial buildings, and work crews from outside of Texas about the working conditions. Martin Mares, a native of Mexico who came to Houston in 1995, told the AP that the demand for labor attracted people who don’t usually do this kind of work and don’t know how to do it safely. He gave the example of a pregnant woman working without gloves in an apartment building that had flooded.

Jose Garza, executive director of the Workers Defense Project wrote in the Guardian, “One woman contacted us when she and her crew, after spending more than 90 hours clearing out a Holiday Inn, were turned away without pay.”

Advocates for undocumented workers in Houston are also concerned about Senate Bill 4 (SB4), a Texas law that lets local law enforcement ask people they detain or arrest about their immigration status and hits local government officials with jail time and large financial penalties if they refuse to comply with federal detainer requests. The law is currently being held up in the courts, but that hasn’t completely erased fears among immigrant communities in Texas.

In addition to being exposed to mold and chemicals as well as experiencing wage theft, undocumented workers have already suffered from the devastation of the storm in unique ways due to poverty, lack of insurance, and their undocumented status. There are some 600,000 undocumented immigrants in Houston. After the hurricane, many undocumented people were afraid to use local shelters because of their immigration status or didn’t want to leave homes because they were concerned about protecting property. Although local and federal officials have tried to persuade undocumented people that they are not there to enforce immigration laws, undocumented people are still worried about the risk of seeking help.

Before the rebuilding efforts began, labor rights advocates and former officials from the Occupational Safety and Health Administration (OSHA) told ThinkProgress they were concerned about exploitation of workers in Texas and undocumented workers in particular, because laborers are routinely exploited and suffer major injuries. The Trump administration has already sent signals that it is not committed to labor rights. Workers groups have been critical of OSHA’s reportedly lax approach to coordinating health and safety training and the Labor Department’s ties to nonunion construction companies.

After Hurricane Katrina, workers were similarly exploited. A 2006 New Orleans Workers Center for Racial Justice study found that 61 percent of workers they surveyed had experienced workplace abuses such as wage theft and health and safety violations. A 2009 University of California, Berkeley study found that there were significant differences in conditions for undocumented versus documented workers.

This article was originally published at ThinkProgress on November 27, 2017. Reprinted with permission.

About the Author: Casey Quinlan is a policy reporter at ThinkProgress. She covers economic policy and civil rights issues. Her work has been published in The Establishment, The Atlantic, The Crime Report, and City Limits.

One Last Time: OSHA Extends Recordkeeping Reporting Deadline

Friday, November 24th, 2017

After multiple delays, OSHA has finally announced that employers who are required to keep OSHA injury and illness records must send summary information in to the agency by December 15, fifteen days after the deadline announced last June, when the agency proposed to delay the reporting deadline from July 1 to December 1.

The rollout has been plagued by numerous delays. First OSHA delayed until August 1 in putting up the website which was supposed to be up by the end of February.  Then there came false accusations of a data breach, and finally a delay in issuing the final change in the required submission deadline.

When the regulation was issued last year, OSHA stated that the data would be published on the web. “Public disclosure of work injury data will encourage employers to increase their efforts to prevent work-related injuries and illnesses,” OSHA announced when the regulation was issued in May 2016.  The Trump administration has not disclosed its intentions about publicizing the data, although there is legal precedent for requiring the agency to publish the data on OSHA’s website.

Other parts of the “electronic” recordkeeping regulation are being challenged in court and are under reconsideration by OSHA. The agency also announced today that OSHA is currently reviewing the other provisions of its final rule to Improve Tracking of Workplace Injuries and Illnesses, and intends to publish a notice of proposed rulemaking to reconsider, revise, or remove portions of that rule in 2018.”

Some in the business community don’t like requirements that more detailed information on injuries and illnesses be sent to OSHA starting next year, or that OSHA has prohibited employers from retaliating against workers for reporting injuries.  At last week’s Congressional hearing, Secretary of Labor Acosta falsely stated that the regulation “was asking for some information that was very detailed and that identifies individuals.”

OSHA also noted that seven state plans, California, Maryland, Minnesota, South Carolina, Utah, Washington, and Wyoming, have not yet adopted the regulations. States are supposed to adopt all new OSHA standards and regulations within 6 months of federal OSHA’s issuance.

This blog was originally published at Confined Space on November 22, 2017. Reprinted with permission. 

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

Deepwater Horizon: Is the CSB Preparing to Retreat on Worker Participation?

Tuesday, November 7th, 2017

The Chemical Safety Board may be preparing to take a significant step backwards in its advocacy for worker participation in preventing chemical facility incidents, including catastrophes like the Deepwater Horizon oil spill.

In April, 2016 the CSB unanimously approved a 4-volume “Macondo Investigation Report” in response to the catastrophic Deepwater Horizon blowout that killed 11 workers, injured 17 and spilled 5 million barrels of oil into the Gulf of Mexico.  The report contained a number of recommendations, including four recommendations calling for the Bureau of Safety and Environmental Enforcement (BSEE) to significantly enhance its regulations requiring worker participation in the employer’s safety program, and enhanced whistleblower protections for workers participating in safety activities. BSEE, an agency within the Department of Interior,  was created in the aftermath of the Deepwater Horizon (Macondo) disaster and is the lead federal government agency in charge of oversight and enforcement of the offshore energy industry on the U.S. Outer Continental Shelf (OCS).

Last month, however, the CSB’s recommendations staff recommended that these recommendations be withdrawn in the face of opposition from BSEE, which claims that it has no jurisdiction to adopt the CSB recommendations.  A short discussion about withdrawing the recommendations was held at the Board’s October 16 public meeting in Washington DC. Board member Rick Engler waged a spirited defense of the recommendations, but judging from the discussion at the meeting, three of the four members seem to be leaning toward withdrawing the recommendations.

The CSB’s recommendations staff raised seven reasons that the recommendations should be withdrawn. The discussion at the September 16th meeting seemed to focus on two of those: whether the CSB investigation had established that lack of worker participation and fear of retaliation was a causative element in the Deepwater Horizon disaster and whether BSEE is correct in claiming that they do not have jurisdiction.  In addition to those two arguments, the CSB recommendations staff justified its recommendation to withdraw the worker participation recommendations by arguing that the recommendations went beyond full statutory authority and mandate of CSB to issue reports and studies, were redundant with what BSEE was already doing, were a product of the (rejected) “safety case” regime, were prescriptive rather than performance based and that these issues should more appropriately be handled by other agencies.

What Did the CSB Recommend?

Volume 4 of the report described the importance of effective worker involvement:

Worker participation in the offshore oil and gas industry is of critical importance. Workers aboard a rig can contribute keen insights into the daily workings of an operation that upper management might miss. As such, workers should be engaged in a wide range of safety management activities, including project planning, risk analysis, and incident investigations, and thus can play an integral role in preventing accidents. As Volumes 2 and 3 demonstrate, decisions that people on a rig make can impact the potential for a well kick, or strengthen or weaken a barrier. For example, “any problems that did occur during the TA [temporary abandonment] plan would be dealt with by employing the knowledge, experience and skills of the drilling team” Therefore, if workers are not effectively engaged in the management of major hazards in these ways, a duty holder bypasses a key layer of insight and enhanced protection.

Accordingly, the CSB unanimously approved the following recommendations to the Department of Interior, and specifically to BSEE (Recommendations 2010-1-I-OS-15):

  1. Worker-elected safety representatives and safety committees for each staffed offshore facility chosen under procedures overseen by the regulator; these safety representatives will have the authority to interact with employers (such as operators and drillers) and regulators on issues of worker health and safety risks and the development and implementation of the major hazard report documentation;
  2. The elected worker representative has the right to issue an enforceable stop-work order if an operation or task is perceived as unsafe; all efforts should be made to resolve the issue at the workplace level, but if the issue remains unresolved, BSEE shall establish mechanisms such that the worker representative has the right and ability to seek regulator intervention to resolve the issue, and the regulator must respond in a timely fashion;
  3. The regulator will host an annual tripartite forum for workforce representatives, industry management, and the regulator to promote opportunities for interaction by all three entities on safety matters and to advance initiatives for major accident prevention.
  4. Protections for workers participating in safety activities with a specific and effective process that workers can use to seek redress from retaliatory action with the goal to provide a workplace free from fear that encourages discussion and resolution of safety issues and concerns. Protected activities include, but are not limited to reporting unsafe working conditions, near misses, and situations where stop work authority is used.

Why The Recommendations Should Be Maintained

As mentioned above, the CSB’s recommendations staff raised seven reasons that the recommendations should be withdrawn. I want to focus mainly on two of these, both of which were major topics of discussion at the October 16 meeting. I will address the others at the end.

Causation: Was Poor Worker Communication and Fear of Retaliation a Cause of the Blowout?

Board recommendations are guided by “Board Orders,” approved by the Board members. Board Order 22states that “a recommendation is a specific and measurable course of
action directed to a specific party, based on the findings and conclusions of incident investigations, safety studies, or similar products” and that “Recommendations proposed to the Board should describe a clear rationale that links the findings of an investigation, study, or similar product with explicit conclusions that factually support the need and basis for the recommendation.” At the October 26 meeting, Board Chair Vanessa Sutherland indicated that she didn’t believe the report had provided evidence that lack of worker participation and intimidation of workers were possible causes of the blowout and resulting environmental catastrophe.

The CSB’s report, however, actually discusses numerous communications failures, and lists under its “key findings” that  “Active workforce participation supported by the regulator and regulations” are missing or inadequate. Volume 3 later finds that “Transocean [the drilling contractor] did not follow its corporate policies to meaningfully engage the workforce in managing risks posed by an activity through identifying effective barriers.” Workers were only encouraged to focus on “personal safety or relatively minor spills of drilling mud on the rig and overboard” instead of identifying more important process issues that eventually led to the blowout.

Workers also reported being reluctant to participate in the employer’s “Start” observation program where employees were supposed to report “negative work practices” of their co-workers because their co-workers were often disciplined and fired after such reports. Furthermore, the wife of Jason Anderson, a worker who was killed in the explosion, testified at a Congressional hearing that her husband had expressed fears for his safety shortly before the explosion, but told her “I can’t talk about it now. The walls are too thin.”

And the CSB was not alone in identifying worker participation and lack of whistleblower protections as a flaw that needed to be remedied. The 2011 National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling” Report to the President identified the same problems, citing a survey done by Transocean discussing poor communication between workers and management about safety conditions, and that over half of the workers reported that “some of the workforce feared reprisals for reporting unsafe situations.” The President’s Commission therefore recommended that Congress pass legislation providing offshore workers with “the same whistleblower protection that workers are guaranteed in other comparable settings.”

Even if the language in President’s Commission Report and the Congressional testimony were not a result of CSB work, the CSB’s legislative authority explicitly states that “The Board may utilize the expertise and experience of other agencies.”

Now, can the CSB prove that the incident wouldn’t have happened if there had there been better communication, less intimidation and functioning labor-management health and safety committees? Of  course not. Unlike determining that a piece of machinery failed, investigative findings and recommendations that focus on inadeuate management systems adn organizational practices can almost never be 100% confirmed as a direct cause of an incident.

Furthermore Board Order 22 does not hold the recommendations to a strict “but for” standard.  In other words, the investigation does not have to prove that the lack of a health and safety committee or the lack of anti-retaliation procedures led directly to the blowout.  Many other CSB reports make recommendations based on causes that likely contributed to incident based on the findings of the investigation, industry best practices and previous experience of similar disasters.

In 2006, an explosion at the Bethune Wastewater Treatment Plant in Daytona, Florida killed two workers. The CSB found that maintenance workers using a cutting torch on a roof above the methanol storage tank accidentally ignited vapors coming from the tank vent.  Public employees in Florida are not covered by OSHA and the CSB issued a recommendation to the Florida state legislature to adopt a public employer OSHA law. Could the CSB prove that such a law would have prevented the explosion? Of course not.  But there is strong evidence that compliance with OSHA regulations prevents such incidents and likely that OSHA coverage of public employees would prevent future similar incidents.

Neither the law creating the CSB, nor Board Order 22 state that the CSB should only investigate and make findings on the technical issues. Engler cites the legislative history of the board, stating that

Moreover, the statute’s legislative history says, and I quote, “The Board should take on an all-cause theory in discharging its investigatory duties.” It is not the single necessary or sufficient cause which is to be the focus of the Board’s inquiry, but all circumstances which contributed to the accident and which may effectively be modified to improve safety are circumstances of concern. Multiple causation is, in fact, the norm and it is expected that the Board will follow many strands of inquiry in response to each accidental release.

Indeed, Volume III of the Macondo report lays out why the CSB must go beyond direct technical causes to examine and address problems with the safety management system and organizational practices:

The broadest learning impact can be achieved when investigations extend beyond the immediate technical causes of an incident. Addressing deficient safety management systems and inadequate organizational practices can result in findings that go beyond the immediate chain events that preceded any one incident. As examples in this chapter show, while the immediate causes of a well control incident might vary, the safety management systems and organizational findings can be similar. Ultimately, BSEE has the opportunity to mandate such a focus and then facilitate the dissemination of lessons across the operator/drilling contractor boundary and geographical regions.

So in order to withdraw these recommendations based on lack of evidence, the Board would not only be contradicting the findings of the report that they unanimously approved, but also violating Congressional intent and past CSB practice.

Does BSEE Have Authority to Regulate Worker Participation?

The CSB Recommendations Staff reported that BSEE did not agree to the recommendations because the agency did not have the authority to adopt them. Now, I’m not a lawyer, but I’ve been around government a long time, and BSEE’s claim sounds suspicious at best.

First, BSEE already requires worker participation as part of its Safety and Environmental Management System (SEMS) issued in October 2010 and amended in 2013, although the CSB concluded that SEMS did not “provide BSEE with an adequate framework for major accident prevention,” particularly in the area of workforce involvement.

For example, in SEMS, BSEE requires drilling operators to have an Employee Participation Plan where operators must consult with employees regarding the program, Stop-Work Authority that would authorize and require all employees and other personnel who witness an activity presenting an imminent risk or danger to the health or safety of an individual, the public, or to the environment to stop the work creating the risk or danger, a person with Ultimate Work Authority (UWA) who can determine “that the imminent risk or danger …. no longer exists,” and operators must provide all personnel with a system for reporting unsafe work conditions.

The CSB did not feel that these provisions were adequate.  You can check out Section 3.4 of Volume IV for the reasons that the CSB thought these provisions need to be improved, but my point is that the existence of these (inadequate) provisions prove that BSEE does, indeed, have authority to address these provisions as the CSB recommended.

It seems hard to argue that on one hand, BSEE has authority to require worker participation and stop work authority, but on the other hand does not have authority to protect workers who actually exercise those rights.

It’s possible that BSEE is primarily claiming that it does not have authority to adopt the CSB’s recommendation that it provide whistleblower protections for workers who have been retaliated against, but that doesn’t make much sense either.  It makes no practical or legal sense to provide rights to employees (e.g. the power to stop work) unless regulations also protect workers who use that power from being retaliated against.  They are effectively the same. It seems hard to argue that, on one hand, BSEE has authority to require worker participation and stop work authority, but on the other hand does not have authority to protect workers who actually exercise those rights.

It is possible, however, that BSEE does not have the authority to provide adequate remedies for workers who are retaliated against, especially if those remedies lie with another agency.  In other words, BSEE’s protection of workers who may be retaliated against is necessary for workers to feel safe exercising their rights, but it may not be sufficient.  In this case Congress may need to pass legislation like the Offshore Oil and Gas Worker Whistleblower Protection Act of 2010, which was passed by on overwhelming margin in the House of Representatives (and later died in the Senate.) In endorsing the legislation, the White House stated that “There is currently no Federal law adequately protecting offshore workers who blow the whistle on worker health and safety hazards.”

But if the Board determines that a law passed by Congress would provide superior protections for workers, the CSB should add a recommendation to Congress to pass such legislation, rather than removing the recommendation to BSEE.

Other Reasons The CSB Staff  Used To Justify Withdrawal of the Recommendations

As I mentioned before, there are several other reasons that the CSB recommendations staff used to justify withdrawing the recommendations. None of these merited much discussion at the October 16 meeting, but I will review them briefly here in case they come up at the next meeting

The CSB May Not Have the Statutory Authority to Address these Issues

Does the CSB have authority under its law to make this type of recommendation? The answer is clear “yes.”  The CSB is authorized to “investigate (or cause to be investigated), determine and report to the public in writing the facts,  conditions, and circumstances and the cause or probable cause of any accidental release resulting in a fatality, serious injury or substantial property damages, and to issue issue “periodic reports” to OSHA, EPA and others “recommending measures to reduce the likelihood or the consequences of accidental releases and proposing corrective steps to make chemical production, processing, handling and storage as safe and free from risk of injury as is possible.”

The CSB is clearly not limited to just looking at the specific technical causes, or as we used to say “why the widget broke.” In fact, the most important role of the CSB is not just providing techinal answers for uncontrolled chemical releases, but doing “root cause” investigations that look into deeper, systemic reasons that these incidents occur and addressing those root causes through their recommendations. As readers of Confined Space will remember, we have discussed many times the futility of only addressing the direct causes of an incident. Unless the root causes — or systemic problems — of an incident are addressed, the same incident will occur over and over again.

These Recommendations Duplicate BSEE’s current efforts

This allegation is puzzling in the context of the allegation, discussed above, that BSEE doesn’t have the authority to address worker participation and discrimination issues. How can these recommendations be “duplicative,” when the agency allegedly doesn’t have the authority to address them in the first place. And, as we’ve seen, they are already addressing many of these issues, if in an inadequate manner, according to the Macondo report. The CSB’s recommendations, rather than being duplicative, contain important improvements.

It Would be More Appropriate for Other Agencies to Address These Issues

The recommendations staff raise the possibility that either OSHA or the Coast Guard would be more appropriate to address these issues. But as former OSHA head, Dr. David Michaels pointed out in Congressional testimony, OSHA is limited by paragraph 4(b)(1) of the Occupational Safety and Health Act which allows other federal agencies pre-empt OSHA’s authority if they claim to be addressing health and safety for workers under their jurisdiction, which both the Coast Guard and Department of Interior have done. These limitations are not just the opinion of Dr. Michaels, but based decades of case law.

The Coast Guard shares jurisdiction with BSEE over the safety of off-shore facilities, but the Coast Guard’s focus is clearly on oil spill preparedness and response, while BSEE’s is on the overall process safety requirements of the drilling process, including worker participation as part of its Safety and Environmental Management System.

Worker Safety and Health Committees are Part of the “Safety Case” Regime, Which Has Not Been Adopted in the United States

The Safety Case regime, as the CSB describes it is “where the company proposes to conduct its activities and then explains its major accident hazards assessment and control plan to the regulator, typically (but not always) for acceptance before commencing drilling exploration or production operations.”

It’s true that the US had not adopted the Safety Case regime, but safety and health committees are hardly a unique attribute of the Safety Case regime. In fact,  safety and health committees are included in many safety and health programs recommended by safety and health organizations, including ANSI’s Occupational Health and Safety Management Systems. And as Engler points out, 17 states have requirements for safety committees. Most union safety and health contracts contain language about safety and health committees and numerous large companies in the petrochemical industry already have joint labor management safety and health committees.

The CSB Recommendations are “Prescriptive” instead of “Performance-Based”

Prescriptive recommendations describe the exact action to be taken by the recipient, whereas performance-based recommendations set out the goal of the recommendation, and let the recipient figure out how to get there. I’m not sure why the recommendations team has suddenly determined that prescriptive recommendations are forbidden. There is nothing in the law or the CSB’s Board Orders requiring the CSB to only issue performance-based recommendations. And a quick look at past CSB recommendations find both prescriptive and performance-based recommendations.

The CSB’s BP report following the 2005 explosion that killed 15 workers has a variety of recommendation from the most prescriptive (e.g. that OSHA should “Establish the capacity to conduct more comprehensive PSM inspections by hiring or developing a sufficient cadre of highly trained and experienced inspectors,” to more performance-based (e.g. recommending that the BP Refinery that it “Ensure that process startup procedures are updated to reflect actual process conditions.”

Sometimes it is more practical to make performance-based recommendations, but where there is a widespread industry consensus that certain protections are important (like whistleblower protections or safety and health committees),  prescriptive recommendations may be more appropriate.

Conclusion

Withdrawing recommendations addressing worker participation and whistleblower rights — recommendations that are based on findings in the CSB report and confirmed by other Macondo reports — would be a devastating precedent for the Board to present, particularly coming after the Board’s unanimous approval of the report and the accompanying recommendations.  Workers are the eyes and ears of any complex process and in order for a safety program to be success, worker not only have to be listened to, but they should be encouraged to report any problems. And unless there is no fear of retaliation from management, even the most expansive rights, such as the ability to shut down an operation due to safety problems, only exist on paper.

The widely respected Baker Panel report on the 2005 BP Texas City refinery explosion emphasized the importance of a “reporting culture.”

The Panel believes that a good safety culture requires a positive, trusting and open environment with effective lines of communication between management and the workforce, including employee representatives. The single most important factor in creating a good process safety culture is trust. Employees and contractors must trust that they can report incidents,near misses and other concerns — even when it reflects poorly on their own knowledge skills or conduct with out fear of punishment or repercussion.

The panel went on to state that “When workers believe that this information will be used unfairly to blame or punish them, and not to improve safety, reporting will decrease.”

Let the Board members know loud an clear how important the Board’s advocacy is to worker and environmental safety in this country.

In other words, if the Chemical Safety Board is serious about preventing chemical plant disasters, worker participation — a functioning reporting culture — is not just a “good idea” or a nice thing to recommend when comfortable; it is an essential tool needed by any managers or government agencies intent on preventing workplace safety and health disasters, especially in workplaces as complicated as a refinery or offshore drilling.

So come to the meeting next week, or call in if you can’t be there.  Let the Board members know loud and clear how important the Board’s advocacy is to worker and environmental safety in this country.  It is even more important during this time in history when we are seeing worker protections rolled back on every front for the Board to stand strongly by its authority, its history and its obligation to recognize the essential role that effective worker involvement plays in chemical plant safety.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

Hotel Housekeepers: Tipping as Hazard Pay?

Tuesday, October 31st, 2017

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The New York Times has an article about failure of most hotel guests to give low-paid, hard-working housekeepers a much appreciated tip. Aside from the hard work they do,  the Times also notes the hazards of the job.

Angela Lemus, a housekeeper at the Wyndham Boston Beacon Hill who makes $19.91 per hour, said through a translator that in addition to scrubbing tubs and taking out trash, she sometimes has to clean blood or other medical waste from rooms….Desk clerk jobs don’t require the flipping of heavy mattresses or exposure to cleaning chemicals that can lead to respiratory and other health problems. Ms. Lemus, for example, developed an allergy to the latex gloves she was required to wear while cleaning. “It went on for years, and it got so bad my hands started to bleed,” she said. “I couldn’t let people see my hands.”

And let’s not forget musculoskeletal disorders from lifting bed mattresses and the threat of workplace violence from guests.

But are these really the same issue?  Are tips the solution to dangerous working conditions, or is elimination of hazards the solution to safe working conditions?  The Occupational Safety and Health Act says that all workers have a right to a safe workplace, whether they receive tips or not.

Implying the tips make it OK to work in hazardous conditions makes them sound like “hazard pay” and hearkens back to the good old pre-OSHA days where workers allegedly agreed to “assume” the risks of a job in return for a paycheck.

We’ve supposedly come a long way since then. Workers — even hotel housekeepers — deserve a living wage (including tips) for their work, AND workers have right to a safe workplace.

This blog was originally published at Confined Space on October 31, 2017. Reprinted with permission.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME)

When VPP Companies Kill

Friday, October 20th, 2017

Over the past month, two workers have been killed at companies participating in OSHA’s Voluntary Protection Programs: Nucor Steel in Decatur, Alabama where Melvin Gant Jr. fell into a vat of the waste products of finished rolled steel, and a contractor at Valero Oil Refinery in Corpus Christi, Texas, Ezequiel Guzman Orozco, who died after allegedly falling from a scaffold.

I say “allegedly,” because Valero claims that the worker, an employee of Brand Energy Solutions, actually died from a heart attack, although “the medical examiner’s office said preliminary notes from Guzman Orozco’s autopsy showed there was blunt-force trauma to his body.”  The Valero case appears to be a VPP double-whammy as the contractor, Brand Energy Solutions at Valero, is also a VPP participant.

Participants in OSHA’s Voluntary Protection Program are supposed to be the best of the best.  The purpose of the program, according to OSHA is to “recognize employers and workers in the private industry and federal agencies who have implemented effective safety and health management systems and maintain injury and illness rates below national Bureau of Labor Statistics averages for their respective industries.” But, of course, the VPP program is more than just a recognition program, it also exempts VPP participants from programmed inspections — those inspections that stem from National or Regional Emphasis Programs, or any other OSHA targeting program.

Despite the goals of the program, sometimes things don’t go as expected, as we have seen recently at Valero and Nucor.

It will be interesting to see how OSHA deals with these fatalities. At the beginning of the Obama administration, VPP had come under significant criticism for allowing unqualified companies — even companies that where workers had died and had received willful citations — to remain in VPP.  In fact, a 2009 fatality at a Valero facility was highlighted by The Center for Public Integrity’s Chris Hamby in an article on hazardous conditions at VPP facilities that are allowed to remain in VPP despite evidence of major safety and health problems. In response to these problems, and in an effort to ensure that no company could simultaneously be a member of VPP and OSHA’s Severe Violator Enforcement Program at the same time,  OSHA issued a new policy in 2013 setting up a process for terminating VPP sites that had experienced fatalities or received a willful violation, but providing an opportunity to appeal the termination to the Assistant Secretary. Deaths among the contractors of VPP participants were considered to be the same as the death of an employee of the participant itself. Nucor has a history of fighting fatality-related terminations, even going to Congress to block OSHA’s actions. Valero, as we have seen, is claiming that the death was not work-related.

Meanwhile, the Voluntary Protection Programs Participants Association (VPPPA) continues to lobby for a bill that would make VPP permanent by writing it into the Occupational Safety and Health Act. The bill has been introduced every year for the past fifteen years, and is currently cosponsored by Reps. Todd Rokita (R-IN), Gene Green (D-TX) and Martha Roby (R-AL). Labor and most Democrats have generally opposed the bill as unnecessary, and also because the current version prohibits participant fees to support the program, fails to require union agreement with their employer’s participation and weakens criteria for admission to the program.

But the main problem with VPP — at least according to the VPPPA — remains unresolved: the failure of the program to grow over the past several years. The reason for the program’s failure to grow is lack of funding.  Under the Bush administration, the program tripled in size, growing to the point where OSHA no longer had the resources to maintain the integrity of the program. There was an enormous backlog of VPP reapproval applications, which meant that hundreds of sites were not being reviewed to ensure that they were still qualified to be part of VPP.  Under the Obama administration, OSHA chose to focus its resources on the program’s integrity (e.g. ensuring scheduled reapprovals) rather than growing its size. The fact that OSHA has not had a budget increase since 2010 has meant that the number of participant have slowly declined as some participants have dropped out or been terminated, while few resources are available to bring in new members.  Neither Trump’s proposed budget nor the budget proposals of the House or the Senate will change this equation much. And, as we reported yesterday, OSHA’s main hiring focus at this point seems to be on inspectors, not compliance assistance staff — which is as it should be.

OSHA has held two stakeholder meetings to “recalibrate” VPP “so that it continues to represent safety and health excellence, leverages partner resources, further recognizes the successes of long-term participants, and supports smart program growth.”  Additional comments were accepted through today.  We shall see what comes out of these discussion. Given the budgetary impedements to growth, the need for OSHA to focus on its core tool — enforcement — and VPPPA’s refusal to consider viable solutions like a fee-based program or graduating long-term participants out of VPP, it’s unlikely that any ideas will surface that will significantly change the program.

This blog was originally published at Confined Space on October 20, 2017. Reprinted with permission.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME)

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