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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)

OSHA's Claims About Hiding Information on Worker Deaths Fall Flat

Friday, September 15th, 2017

Since January, government agencies under the Donald Trump administration have taken steps to hide information from the public–information that was previously posted and information that the public has a right to know.

But a recent move is especially personal. Two weeks ago, the agency responsible for enforcing workplace safety and health—the Occupational Safety and Health Administration—removed the names of fallen workers from its home page and has stopped posting information about their deaths on its data page. In an attempt to justify this, the agency made two major claims discussed below. Like many efforts to decrease transparency by this administration, these claims are unfounded, and the agency whose mission is to protect workers from health and safety hazards is clearly in denial that it has a job to do. Here’s how:

OSHA claim #1: Not all worker deaths listed on the agency website were work-related because OSHA hasn’t issued or yet issued a citation for their deaths.

Fact: It is public knowledge that 1) OSHA doesn’t have the jurisdiction to investigate about two-thirds of work-related deaths but does issue guidance on a wide variety of hazards to workers that extend beyond their enforcement reach, and 2) OSHA citations are not always issued for work-related deaths because of a variety of reasons, including limitations of existing OSHA standards and a settlement process that allows employers to remedy certain hazards in lieu of citation. (The laborious process for OSHA to develop standards deserves a completely separate post.) But neither of those points mean the agency cannot recognize where and when workers are dying on the job, and remember and honor those who sought a paycheck but, instead, did not return home to their families.

In fact, the federal Bureau of Labor Statistics, also housed in the Department of Labor, counts and reports the number of work-related deaths each year. The agency reported that in 2015, 4,836 working people died of work-related traumatic injury—”the highest annual figure since 2008.” So, another agency already has taken care of that for OSHA (whew!). But this is just a statistic. Luckily for OSHA, employers are required to report every fatality on the job to OSHA within eight hours, so the agency has more specific information that can be used for prevention, including the names of the workers and companies involved, similar to the information the public has about deaths that occur in any other setting (outside of work).

OSHA claim #2: Deceased workers’ families do not want the names and circumstances surrounding their loved ones’ death shared.

Fact: Removing the names of fallen workers on the job is an incredible insult to working families. The shock of hearing that your family member won’t be coming home from work that day is devastating enough, but then to hear that their death was preventable, and often the hazards were simply ignored by their employer, is pure torture. The organization made up of family members who had a loved one die on the job has stated repeatedly that it wants the names of their loved ones and information surrounding their deaths shared. It does not want other families to suffer because of something that could have been prevented. The organization has made it very clear that it opposes OSHA’s new “out of sight, out of mind” approach.

So why shield this information from the public? We know the Chamber of Commerce and other business groups have long opposed publication of this information. The Trump administration seems to live by very old—and very bad—advice from powerful, big business groups whose agenda it’s pushing: If we don’t count the impact of the problem or admit there is a problem, it must not exist.

This blog was originally published at AFLCIO.org on September 15, 2017. Reprinted with permission. 

About the Author: Rebecca Reindel is a senior health and safety specialist at the AFL-CIO.

Lost wages, serious illness and poor labor standards: The dangers of rebuilding Texas and Florida

Monday, September 11th, 2017

As Texas prepares to rebuild after Hurricane Harvey devastated much of the state, and Florida starts picking up the pieces from the destruction wreaked by Hurricane Irma, emergency workers may face exploitation for the sake of greater profits and speedier project completion.

Past abuses after similar natural disasters have left laborers without all of their wages and with serious illnesses that could have been prevented with proper supervision and training, labor experts say. A large portion of these workers are undocumented and likely afraid to alert authorities when their rights are violated. On top of that, the Trump administration’s approach to labor protections doesn’t inspire confidence, according to workers’ safety experts who spoke to ThinkProgress.

Forty percent of Houston construction workers do not have health insurance, retirement, life insurance, sick leave, and paid time off, according to a 2017 report from the Austin-based Workers Defense Project, an organization that advocates for better health, safety, and labor standards. The report was the result of interviews with over 1,400 construction workers. On average, a construction worker dies once every three days in Texas because of unsafe working conditions.

Texas is also the only state in the country that doesn’t require any form of workers compensation coverage, said Bo Delp, Director of the Better Builder Program at Workers Defense Project.

“After disasters like Katrina, there is a lot of construction going on — rebuilding, repairs, and remodels, and a lot of exploitation as well. Texas is a uniquely bad state for construction workers in terms of conditions,” Delp said. “That is compounded with a disaster like Harvey, when we know, in other contexts, that this has led to exploitation on an unprecedented scale.”

“After disasters like Katrina, there is a lot of construction going on — rebuilding, repairs, and remodels, and a lot of exploitation as well.”

Studies after Hurricane Katrina found that wage theft and unhealthy working conditions were rampant and that undocumented workers were particularly vulnerable. A 2006 study from the New Orleans Workers Center for Racial Justice found that 61 percent of surveyed workers had experienced workplace abuses such as wage theft and health and safety violations. A similar 2009 study by the University of California, Berkeley found that there were concerning differences in conditions for undocumented versus documented workers. Thirty-seven percent of undocumented workers said they were told they might be exposed to mold and asbestos, while 67 percent of documented workers reported they had been informed. Only 20 percent of undocumented workers said they were paid time and a half when they worked overtime.

Delp said that there are “good honest contractors” in the state, but he is concerned about “fly-by-night” contractors who will eschew safety measures to get things done cheaply and quickly.

Sasha Legette of the Houston Business Liaison works alongside community partners and policymakers, including the mayor’s office, to ensure better wage and safety conditions for workers. So far, she said that she has been impressed with Mayor Sylvester Turner’s response to the disaster. But she hopes the state doesn’t rush it in a way that could harm workers.

“We know that the water and flooding has created a very toxic environment and what we don’t want to see happen is that workers or that the city is so eager to rebuild that the safety of those who are going to do that work is not taken under consideration,” Legette said.

“They can identify hazards and prevent the need for OSHA to have to enforce after the fact,” Goldstein-Gelb said.

Sharon Block, executive director of Harvard University’s Labor and Worklife Program and former principal deputy assistant secretary for policy at the U.S. Department of Labor, said she is concerned about the administration’s potential response to the recent disasters.

Often, OSHA will begin with “compliance assistance mode,” which means they will help employers comply with rules, and then will eventually move to enforcement mode. But the Bush administration never moved into enforcement mode after Katrina, and she worries that the Trump administration could do the same.

Block is also worried about whether there are enough resources at the agency. In addition to the proposed cuts and business-friendly approach of the administration, there is no OSHA chief.

“They don’t have real leadership in the agency,” Block said. “So having watched Sandy and the Gulf oil spill, these sort of unexpected disaster responses, even for an agency like OSHA, it’s really complicated and it’s really resource intensive.”

“Based on their level of staffing and resources and everything else about their approach on worker protection issues, I’d be worried about how workers post-Harvey and post-Irma are going to be effective.”

“There is a lot at risk,” Block added. “Based on their level of staffing and resources and everything else about their approach on worker protection issues, I’d be worried about how workers post-Harvey and post-Irma are going to be effective.”

There are some potential downsides to not having an OSHA chief at a time like this, such as getting assistance from FEMA to do work on the ground to address workers’ health and safety needs, said Barab.

“A lot of the activity around these national disasters involves agencies working together,” Barab said. “It requires agencies having frank and candid conversations, [such as] getting FEMA to be more accommodating to the health needs of workers. It always helps to have a higher level person doing that.”

In order to get OSHA staff to hurricane-affected areas in Texas or Florida, OSHA would have to transfer some compliance and enforcement staff there temporarily. But this is expensive and the agency has been chronically underfunded. To reimburse the expenses of doing this, FEMA can provide supplemental assistance, Barab explained, but the state must request this and, on top of that, the state has to contribute 25 percent of the funding.

“To pony up about 25 percent of cost — we haven’t seen a lot of states willing do that. I am not optimistic about Texas and I don’t see them wanting to spend money to get more OSHA enforcement there,” Barab said. “FEMA has the ability to waive that requirement, but they generally don’t, and didn’t, in fact, after [Hurricane] Sandy.”

 One of the other challenges facing OSHA will be outreach to undocumented workers who may be concerned about reporting safety and wage violations. Barab said the government needs to send a message that the U.S. Immigration and Customs Enforcement (ICE) agency will not be involved if workers want to report violations. But because many workers will feel uncomfortable going to a government official in any situation, OSHA needs to maintain relationships with local nonprofits.

“We already had pre-existing relationships with nonprofits that were continuing to train immigrants and day workers during [Hurricane] Sandy,” Barab said. “In terms of being able to reach out to OSHA, the nonprofits had a relationship with these workers and other groups had relationship with OSHA.”

Marianela Acuña Arreaza, executive director of Fe y Justicia Worker Center in Houston, an organization that helps low-wage workers learn about their rights and organizes workers, said the group has been through post-disaster health and safety trainings and has a healthy relationship with the local OSHA office. The center is educating workers on what kind of respirators to use if they’re working in a structure that has mold, for example, while also keeping an eye on any worker safety and wage violations. The center has also benefited as subgrantee from the Susan Harwood program for the last five years.

“Undocumented workers specifically fear retaliation in terms of losing a job or an employer calling ICE on them, and that happens a lot. It is definitely a barrier for people to come forward,” Acuña Arreaza said. “Even other immigrants who have other statuses — some of the fears are similar because they are still worried about losing their job or having their employer retaliate.”

“We try to repeat that and and say, ‘No, you have rights.’ And people start getting it after we repeat it enough.”

By having a staff of mostly immigrants, she said the organization has created an environment where undocumented workers would feel comfortable, never asking workers about immigration status, and working with other nonprofits and local churches to encourage people to come in.

“We try to repeat that and and say, ‘No, you have rights.’ And people start getting it after we repeat it enough,” Acuña Arreaza said. “But there is a huge disconnect that comes from documentation but also comes from not being able to speak English or fully speak English, other cultural barriers, and racism. Lacking papers does not help, but there is this layered separation from justice in the system of worker rights.”

This article was originally published at ThinkProgress on September 11, 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.

Donald Trump's policies will mean more workers dead on the job

Thursday, August 17th, 2017

Donald Trump’s rollbacks of worker protections could cost lives. Kathleen Rest, executive director of the Union of Concerned Scientists and former acting director of the National Institute for Occupational Safety and Health, and David Michaels, a public health professor and former assistant secretary of labor, leave no room for doubt on that front. People die from workplace injuries and work-related diseases every day:

People like 25-year-old Donovan Weber who suffocated in a trench collapse in Minnesota. Or Michael McCort, Christopher Irvin, Antonio Navarrete and Frank Lee Jones who were killed at a power plant in Florida when molten slag reaching 1,000 degrees poured down on them as they tried to unplug a tank. Or Wanda Holbrook, whose head was crushed by a malfunctioning robot as she adjusted machinery in Michigan.

Each day in the United States, 13 people are killed as a direct result of hazardous working conditions. And, more than 10 times that number die of work-related diseases that are less sudden but no less devastating.

And Trump’s policies are going to make that worse:

Since January, we’ve seen delays and rollbacks in workplace protections. For example, the Occupational Safety and Health Administration has proposed weakening protections for workers exposed to cancer-causing beryllium and delayed enforcement of its silica rule, increasing the likely incidence of lung disease. It has delayed the electronic submission of injury and illness data and stopped releasing public information about enforcement actions, inhibiting public and researchers’ access to data that can inform prevention.

And Congress has permanently terminated OSHA’s ability to fine employers with a long-standing pattern of injury and illness record-keeping violations, a previously important signal to others in the industry.

Equally worrisome are proposed budget cuts for research, education and training designed to improve the health and safety of our nation’s workplaces — research that enhances knowledge on existing and future hazards; that underpins government policies and workplace practices; and that spurs innovations in workplace safety.

But Trump claims those rollbacks are going to be good for corporate profits, and that’s what he cares about. Certainly not workers’ lives.

This blog was originally published at Daily Kos Labor on August 15, 2017. Reprinted with permission.

About the Author: Laura Clawson is labor editor at Daily Kos.

Trump Labor Department has a message to employers: Workplace safety? Not a priority.

Wednesday, March 15th, 2017

Donald Trump’s Labor Department is sending employers a message that it’s open season on worker safety—by cutting off public messages about enforcement of worker safety rules. What Fair Warning noticed 10 days ago is still going on today:

In a sharp break with the past, the department has stopped publicizing fines against companies. As of Monday, seven weeks after the inauguration of President Trump, the department had yet to post a single news release about an enforcement fine. […]

“The reason you do news releases is to influence other employers” to clean up their acts, said David Michaels, who was an administrator of the Occupational Safety and Health Administration, the agency within the Labor Department that oversees workplace safety, during much of the Obama administration.

If there aren’t news releases, people are much less likely to hear which local companies are endangering their workers, which means that much less pressure on the companies to keep workers safe. That’s not the only red flag about the direction Trump and his people will take the Occupational Safety and Health Administration:

Industry groups are pushing back against an Obama-era regulation meant to exert pressure on companies to better comply with record-keeping rules. A provision of that rule, which was supposed to take effect last month, would require companies to electronically submit accident data to OSHA so the agency could post the information on a public website. As recently as early January, OSHA said on its website that it expected the site to be live in February.

But in recent weeks, the agency changed the wording so that it now states, “OSHA is not accepting electronic submissions at this time.”

“That was not an accident,” said Mr. Conn, the lawyer. “That was a big signal to employers that even if they report the data, it will not be published online.”

Republicans are also rolling back increased workplace safety fines; delaying a new rule limiting exposure to beryllium, which can cause a chronic lung disease; and in other ways weakening OSHA’s enforcement powers. But hey, the public is less likely to know about the deaths that result, so politicians are less likely to get pressure from people who care about dead workers, while industry lobby groups will stay just as active pushing for less and less enforcement. So Republicans have got it all worked out.

This article originally appeared at DailyKOS.com on March 14, 2017. Reprinted with permission.

Laura Clawson is a Daily Kos contributing editor since December 2006. Labor editor since 2011.

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