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Archive for the ‘OSHA’ Category

Full of Surprises: OSHA Spring Regulatory Agenda Released

Thursday, May 10th, 2018

When Spring is in the air, this man’s fancy turns to (where else?) the 2018 Spring Regulatory Agenda to discover  what movement OSHA will be planning to move forward (or backward) to protect American workers from injury, illness and death in the workplace.

And the news is not totally bad this time around.

The good news from the new Regulatory Agenda is that OSHA has moved several items from the Long Term Agenda to the Short Term Agenda — Emergency Response and Preparedness, an Update to the Hazard Communication Standard, Tree Care, and Preventing Workplace Violence in Health Care and Social Assistance.  The Long Term Agenda generally means that the next major action (such as an official proposal) is more than a year in the future, either because the item has been deliberates sentenced to purgatory, or because there is simply too much work to get to the next major stage within a year. (Katie Tracy of the Center for Progressive Reform has put together this handy chart to save your eyesight and help with translation.)

The other good news is that nothing was removed from OSHA’s Regulatory Agenda. Previously, the Trump administration had removed such important items as combustible dust, noise in construction, several chemical standards and protections for workers at risk from being backed over by construction vehicles.

SBREFA: One Step Forward

The Labor Department has announced an ambitious schedule of OSHA small business review (SBREFA) panels for the next year covering  Communication Tower Safety (May 2018), Emergency Response (October 2018), Workplace Violence (February 2019) a Hazard Communication Standard update (February 2019), Tree Care (April 2019).

SBREFA is a process where OSHA and the Small Business Administration’s Small  Business Advocacy office organize panels of “Small Entity Representatives” (SERs) — actual small business owners or health and safety staff — to discuss the impact of a possible standard on their industry based on preliminary economic and feasibility information compiled by OSHA. Based on the comments of the SERs, OSHA and SBA issue a report within four months of initiation of the panel, which informs the next major stage of the regulatory process — the proposal.

The SBREFA process was created under the Gingrich Congress in the mid-90s to provide small businesses with a first bite of the regulatory apple. (One might ask why the normal public comment process doesn’t provide the same opportunity, and why labor wasn’t also given a similar early bite?)  SERs generally advise OSHA that no new standard is needed, thank you very much. But they also frequently provide some useful information that OSHA later uses to tweak the proposal to address some small business concerns.

Now, this is a pretty darn ambitious regulatory schedule — five SBREFA panels in a year — especially for an anti-regulatory Republican administration. That is certainly a good thing, and especially good to see workplace violence among those panels. But there are several caveats that need to be raised.

First, I’m a more-than-a-bit skeptical they can keep to this schedule — especially since the first one is scheduled for this month.  Given the work involved here, the other smaller items OSHA is moving forward on, and the resources being put into deregulatory actions on beryllium and recordkeeping, plus the 10% cut sustained by the standards budget last year, it’s hard to see them keeping to this schedule. On the other hand, we’ve seen no forward movement on any regulatory items in the first 16 months of this administration, so it’s possible that significant preparatory work has been going on behind the scenes.

The second caveat is that these are only SBREFA panels.  The next major step is an actual proposal, which contains a proposed regulatory text and several hundred pages of “preamble” with in-depth analysis of significant risk, economic and technological feasibility. Written comments on the proposal are then solicited and a hearing is generally held — a hearing that can last days or weeks, depending on the size and complexity of the proposed standard.

Depending on the size and complexity of the standard, it can often take one to three years to get from SBREFA to a proposed standard, and then several years to get to a final standard from there.

In addition, don’t forget Trump’s “One in/Two out” Executive Order (EO) that requires agencies to repeal two standards or regulations of equal cost for every one that’s added.  While I have yet to see this EO invoked, it is assumed that the agency would have to determine which two standards are going to be revoked by the time they get to the proposal stage. Given that it takes almost as much work to revoke an old standard as it does to issue a new standard, OSHA would essentially be forced to conduct three rulemakings (one for the new rule, and two for the revoked rules) for every new rule it wants to add.  And all that is assuming that the agency can figure out which protections workers will lose when, for example, communications tower workers gain protections.

The bottom line is that none of these new standards are likely to see the light of day during this Presidential term. But any forward movement is always welcome.

There are a few small items — revisions, corrections and small updates — that are moving to the proposal and final stages — the most significant of which is the long-awaited fourth iteration of the Standards Improvement Project (SIPS) where small improvements and updates are made to numerous standards in a single rulemaking.

And Two Steps Back

Still languishing on the long term agenda are OSHA standards dealing with infectious disease and Process Safety Management which covers safety in chemical plants. Both of these had SBREFA panels during the Obama administration  They’re both fairly major rules which means a) they involve quite a bit of work to get to the proposal stage, b) OSHA budget cuts will slow the process further, and c) given their likely cost, this administration will undoubtedly be reluctant to move forward on them and hard-pressed to find protections of equal cost to remove. Slow movement on the infectious disease standard is especially disappointing considering news of another Ebola outbreak in the Democratic Republic of the Congo., a recent severe flu season and the coming of mosquito season as the weather warms.

The bad news, of course, is that the most significant regulatory movement by OSHA continues to be in reverse with a proposal undermining beryllium protections for construction and maritime workers, delay in full implementation of the beryllium standard for general industry employees and a proposal to roll back some provisions of the electronic recordkeeping standard, which OSHA is predicting for sometime in July.

The National Employment Law Project also points out DOL backsliding in protection of young workers, action at the Department of Agriculture weakening protections for meat processing workers and EPA’s actions that could result in more worker exposure to toxic pesticides.

This blog was originally published at Confined Space on May 10, 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).

15 Things You Need to Know from the 2018 Death on the Job Report

Thursday, April 26th, 2018

For the 27th year in a row, the AFL-CIO has produced Death on the Job: The Toll of Neglect. The report gathers evidence on the state of safety and health protections for America’s workers.

Passed in 1970, the Occupational Safety and Health Act has saved the lives of more than 559,000 working people. President Barack Obama had a strong record of improving working conditions by strengthening enforcement, issuing key safety and health standards, and improving anti-retaliation and other protections for workers. Donald Trump, on the other hand, has moved aggressively on his deregulatory agenda, repealing and delaying job safety and other rules, and proposing deep cuts to the budget and the elimination of worker safety and health training programs.

These are challenging times for working people and their unions, and the prospects for worker safety and health protections are uncertain. What is clear, however, is that the toll of workplace injury, illness and death remains too high, and too many workers remain at serious risk. There is much more work to be done. Here are 15 key things you need to know from this year’s report, which primarily covers data from 2016.

  1. 150 workers died each day from hazardous working conditions.

  2. 5,190 workers were killed on the job in the United States—an increase from 4,836 deaths the previous year.

  3. An additional 50,000 to 60,000 workers died from occupational diseases.

  4. The job fatality rate increased to 3.6 per 100,000 workers from 3.4 per 100,000 workers.

  5. Service-providing industries saw the largest increase in the job fatality rate. The rate declined in manufacturing and mining and was unchanged in construction—all industries that receive the greatest oversight from OSHA or the Mine Safety and Health Administration.

  6. Employers reported nearly 3.7 million work-related injuries and illnesses.

  7. Underreporting is widespread—the true toll of work-related injuries and illnesses is 7.4 million to 11.1 million each year.

  8. The states with the highest job fatality rates were Wyoming, Alaska, Montana, South Dakota and North Dakota.

  9. Workplace violence deaths increased significantly. The 866 worker deaths caused by violence in 2016 made it the second-leading cause of workplace death. Violence also was responsible for more than 27,000 lost-time injuries.

  10. Women are at greater risk than men; they suffered two-thirds of the lost-time injuries related to workplace violence.

  11. There is no federal OSHA standard to protect workers from workplace violence; the Trump administration has sidelined an OSHA workplace violence standard.

  12. Latino and immigrant workers’ safety and health has improved, but the risk to these workers still is greater than other workers.

  13. Older workers are at high risk, with 36% of all worker fatalities occurring among those ages 55 or older.

  14. The industries with the most deaths were construction, transportation, agriculture, and mining and extraction.

  15. The cost of job injuries and illnesses is enormous—estimated at $250 billion to $360 billion a year.

The Trump administration and the Republican majority in Congress have launched a major assault on regulatory protections and are moving aggressively to roll back regulations, block new protections, and put agency budgets and programs on the chopping block. The data in this year’s Death on the Job report shows that now is a time when workers need more job safety and health protection, not less.

Acosta Refuses To Commit to Preserving OSHA Recordkeeping Rule

Friday, April 13th, 2018

In a hearing before the Senate Appropriations Committee today, Secretary of Labor Alex Acosta today refused to commit not to rescind OSHA’s electronic recordkeeping rule. The rule, issued in 2016, requires employers to send injury and illness information into OSHA and prohibits employers from retaliating against workers for reporting injuries.

The electronic recordkeeping rule has three major parts, two of which are in effect.

First, it required employers to send in a summary of their injury and illness data (form 300A (Summary of Work-Related Injuries and Illnesses) by December 15. A second submission (including information on Form 300 and Form 301), providing more detail about how workers were injured, was scheduled to be submitted later this year. Finally, the rule prohibits employers from retaliating against workers for reporting injuries or illnesses.  OSHA’s intent when the rule was issued was to public post on its website the individual employer data to ensure that workers and the public were aware of companies’ health and safety record. No confidential or personally identifiable information would be submitted to OSHA or posted publicly.

Over the past year, Trump’s OSHA as announced that it’s working on revising the rule. While it had been assumed that the Trump administration was mostly interested in repealing the requirement to send in the more detailed data, rumors have been circulating that an effort is being made to repeal the entire rule.

Yes or No?

Senator Tammy Baldwin (D-WI) asked Acosta at this morning’s hearing whether Acosta thought it was important for OSHA to have access to accurate injury and illness data in order to target its limited resources to the most dangerous resources.

After agreeing that such data was in fact important, Acosta was asked whether he planned to rescind the rule, yes or no?

Acosta responded that “Yes or no answers are somewhat difficult on this,” but “it is also important to respect he privacy of individuals and employees” and then, without answering Baldwin’s question, proceeded to filibuster the time with a long discussion about the non-existent issue of confidentiality.

In short, “yes or now answers” should not difficult in this case, nor is confidentiality a real issue.

First, the deadline for sending in the summary data on OSHA form 300A has already passed (although a large number of employers failed to comply), and as is evident from the form, there is no private data about any individuals.  The more detailed information was to be sent to OSHA by July 1, 2018, but that date has been delayed indefinitely while OSHA determines how to modify the regulation.

While employers do include Personally Identifiable Information (PII) on their in-house forms 300 and 301, that information was not required to be submitted to OSHA or would have been automatically scrubbed out of the submission. When the regulation was released, the agency announced that:

OSHA has effective safeguards in place to prevent the disclosure of personal or confidential information contained in the recordkeeping forms and submitted to OSHA. OSHA will not collect employee name, employee address, name of physician or other health care professional, or healthcare facility name and address if treatment was given away from the worksite.  All of the case specific narrative information in employer reports will be scrubbed for PII using software that will search for, and de-identify, personally identifiable information before the data are posted.

So, what we’re seeing here is not a concern about employee privacy, but an effort by the Chamber of Commerce and the anti-OSHA lobby to kill the rule.

So, what we’re seeing here is not a concern about employee privacy, but an effort by the Chamber of Commerce and the anti-OSHA lobby to kill the rule because they’re afraid that if OSHA collects injury or illness information about companies’ health and safety record, the companies’ information — not the PII — will eventually be publicly released. And that won’t look good for those companies with poor health and safety records. Transparency is great — unless it hurts your bottom line.

In addition, as Baldwin suggested and Acosta acknowledged, the injury and illness data would be used to enable OSHA to target the most dangerous industries. Now that makes sense. OSHA is a tiny agency able to visit only a very small number of workplaces each year, so it makes sense that those inspections focus on the most high hazard industries, and the most dangerous companies within those high hazard industries.  No one wants to waste OSHA’s time, the taxpayer’s money, or an employer’s time inspecting a company that’s doing everything right. If possible, you want to use the data to get to those companies that are putting workers at risk.

But of course, if you happen to be one of those companies whose putting workers at risk, or a company in a high hazard industry, maybe you’re not so interested in OSHA targeting your industry. Better they waste their time wandering around aimlessly, reducing even further the small chance that you’ll ever be inspected.

So could Acosta have said “No, the rule will not be repealed, although as we have already announced, we’re working on modifying it?”  Yes.

Unless they’re really considering a complete repeal.

OSHA Inspections

Acosta proudly informed the Committee in his opening remarks that “The number of inspections conducted in 2017 increased year over year for the first time in five years despite OSHA’s suspension of enforcement activities to provide more compliance assistance and facilitate the provision of personal protective equipment during the hurricane recovery in areas affected by natural disasters this year.”

And, in fact, the number of inspections did increase by a few hundred in FY 2017.  A good thing? Yes and no.

I have nothing against increasing the number of inspections. Thirty-two thousand inspections is a small number considering the huge number of workplaces under OSHA’s jurisdiction, so the more the better.

But, there are some problems with that. Because how many inspections is not the only question. One must also ask what kind of inspections?  A little background:

Career government employees, and especially OSHA staff, are good soldiers. Give them a numerical goal and if at all possible, they’ll meet it by hook or by crook. So if the Secretary of Labor demands that you increase the number of inspections, even though a hiring freeze has caused critical staffing shortages, you go for the short, easy inspections — usually a lot of short construction inspections. And you spend a lot of time out in the field inspecting at the end of the Fiscal Year, and then stay in the office and do all the paperwork at the beginning of the next Fiscal Year.

During the Obama administration, we decided to do something a bit different. We decided to prioritize the type and quality of inspections over the pure number. Because if you’re focusing on short easy inspection to get some numbers up on the board, you may be neglecting the more complex investigations that may be more significant in the big picture — workplace violence, ergonomics, chemical plant inspections — those that may take a long time but are important to do.   We did this by counting “enforcement units” instead of just the number of inspections, and assigning more “enforcement units” to the more difficult inspections so that inspectors or offices wouldn’t be penalized for taking on the more difficult projects.

So I find Acosta’s emphasis on numbers to be ironic, because the typical Republican criticism of OSHA is that it plays a “gotcha” game — just putting citations up on the board. Which is exactly what this administration seems to be doing.   And I understand it. It certainly plays better in Congress to say you did more inspections than that Democrats.

They are the laws of the land. They need to be enforced. — Alex Acosta

The good news is that Acosta again emphasized the importance of enforcement when asked by Committee Chairman Roy Blunt why the Administration had recommended flat budgets or slight increases for DOL enforcement agencies. Acosta responded that

Those are priorities. These laws matter. They’ve been passed by Congress. They are the laws of the land. They need to be enforced. The men and women of the Department of Labor need the resources to enforce them  Over time even if budgets remain flat, life gets more expensive. And so we’ve asked for slight increases to continue the efforts that we’ve done this year. Because as I’ve said, enforcement matters.

Hard to argue with those words.

Tipping Over

Finally, as I mentioned the other day, the fireworks over Acosta’s tipping ruleallowing employers to steal servers’ tips evaporated when Congress included a bill prohibiting tip stealing in the FY 2018 budget bill. Acosta had come under withering attack for not including a damaging economic analysis in the proposal that would have estimated how much money servers would have lost.

But the fix passed in March and everyone congratulated each other and patted each other on the back and sang Kumbaya over this great (and rare) example of everyone working together in perfect harmony.

But Acosta couldn’t quite let it go. He needed to “just put it on the record…”

Taking up the Chairman’s offer for a few parting words at the end of the hearing, Acosta reminded everyone that when the original regulation was issued in 2011, the Obama administration also didn’t include an quantitative economic analysis. (Which was not required because the 2011 version did not make any changes in current practice.) He then went to great lengths to explain again how complicated an analysis was and how they could have made some “wildly crazy” assumptions to come up with a number, but that wouldn’t have served the public interest and Obama did the same thing no one got upset, so that’s “indicative of an unfortunate state of affairs that we’re at,” and anyway employers wouldn’t have kept tips anyway because no one would eat there and employees would walk out  but that’s why I’m happy that we all worked together and we had a happy ending.

And to all a good night.

This blog was originally published at Confined Space on April 12, 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).

Corporate America’s Stealth Campaign to Stop Worker and Environmental Protections

Thursday, March 29th, 2018

Admit it. If they could, Trump and most Republicans would like to just get rid of OSHA, EPA the Consumer Product Safety Commission and any other agency — or law — that protects workers, consumers or the environment.

This is all part of Steve Bannon’s goal of “deconstructing the Administrative State” — making sure that corporate America’s quest for ever higher profits and control over our lives is not hindered by any of these damn government agencies that Congress created when the liberals ruled the earth.

But simply repealing the Occupational Safety and Health Act or the Clean Water Act probably wouldn’t play well even in Trump-America where people still like to come home alive at the end of the day and hate the idea of their kids drinking poisoned water.

So what to do, what to do?

How about just making sure the government can’t issue any new protections: the standards and regulations that put teeth into the laws?

The thriving New York Times has described two of their clever strategies that would do just that.

Get Rid of the Science: “Weaponized Transparency”

The Times reports that EPA Administrator Scott Pruitt is proposing to “no longer consider scientific research unless the underlying raw data can be made public for other scientists and industry groups to examine.” Pruitt is doing this in the name of “transparency.” After all, what could be wrong with only allowing science where the raw data is available for other scientists to critique?

Well, here’s the problem.

Opponents and supporters agree that the proposed new policy has its roots in the fossil fuel industry’s opposition to a groundbreaking 1993 Harvard University study that definitively linked polluted air to premature deaths. The “Six Cities” study, widely considered one of the most influential public health examinations ever conducted, tracked thousands of people for nearly two decades and ultimately formed the backbone of federal air pollution regulations.

The problem is that this study used the private medical and occupational histories of more than 22,000 individuals.  And if this private data were made available for public review, EPA “would have to spend hundreds of millions of dollars, according to a federal estimate, to redact private information.”

The bottom line, critics say, is that if the E.P.A. is limited to considering only studies in which the data is publicly available, the agency will have a narrower and incomplete body of research to draw on when considering regulations.

It’s not like no one has ever looked at this data critically. It’s all peer reviewed by other specialists in the field.

It’s “weaponized transparency,” according to Former OSHA head Dr. David Michaels, currently a professor at George Washington University and author of Doubt Is Their Product:  How Industry’s Assault on Science Threatens Your Health.

This is not just an academic debate. Not only would this policy chill scientific study and make it more difficult to protect workers and the environment, it would cost lives — thousands of lives:

Opponents of the proposed E.P.A. policy say the effort all comes back to the fossil fuel industry’s decades-long frustration over the Six Cities study and a related one sponsored by the American Cancer Society. Those studies, which have been independently evaluated and have had their findings confirmed, underpinned the first Clean Air Act regulations on fine particulate matter. Based on the research, the E.P.A. in 1997 estimated the rule would prevent 15,000 premature deaths annually and hundreds of thousands of cases of asthma and bronchitis.

So who’s behind this nefarious, and not so subtle plot? Who else but the Koch brothers, as well as Exxon Mobil, Peabody Energy and the American Chemistry Council.

Oh, and there’s also a bill in Congress that would mandate the same thing: The “Honest and Open New E.P.A. Science Treatment Act,” also known as the “Honest Act.”

Honestly.

Weaponizing the Judiciary

Just in case restricting the data that forms the basis of protective regulations doesn’t work, the Trump administration, Republicans in Congress and corporate American have another card up their sleeve: making sure the courts reject any regulations that manage to slip through.

One area that the Trump administration has seen great success has been in the selection and confirmation of conservative judges who have passed a critical “litmus test.” Usually, when we hear the words judicial “litmus test” it’s related to the debate over abortion.

But according to an article in this morning’s New York Times, the Trump administration is applying another litmus test: reining in what conservatives call “the administrative state” by limiting the discretion that agencies like OSHA or EPA have when they issue complex regulations.

What does that mean? When Congress passes a law like the Occupational Safety and Health Act, they give OSHA the authority to issue specific standards, and the law provides some guidance for the criteria the agency has to follow. For example, OSHA has to ensure that their standards are economically and technologically feasible.  But Congress doesn’t have the time or expertise to issue the specific standards — like those to protect workers against silica exposure, trench collapses or falls. They leave that lengthy and complex work to the agency.

When the new standards are inevitably challenged in court by the affected industries, the business associations argue that the agency didn’t evaluate the science properly, or didn’t ensure feasibility in the affected industries. The judges, who like your local Congresspersons, are not experts in toxicology or risk assessment, have traditionally deferred to the agencies’ expertise: “You’ve got some science here; you’ve got some science there. Congress says that the agencies have the expertise, so we defer to their decision.”

But not for much longer, if Trump and corporate America have their way. He is appointing federal judges who are “devoted to a legal doctrine that challenges the broad power federal agencies have to interpret laws and enforce regulations.”

Are you scared? If not, you should be:

This approach has shaped what could be one of Mr. Trump’s most enduring legacies, with the potential to dramatically shrink the body of federal regulations and programs that touch almost every aspect of American life — like workplace safety, environmental protection and health care.

If it is successful, the Trump administration could come closer than any Republican White House has to achieving a goal conservatives have longed for since the New Deal: curtailing the reach of a federal government they say has grown far too large and invasive.

According to Senator Richard Blumenthal (D-CT), these ideas have been around for a long time, “but have never been weaponized in the way that Trump is doing now with his judicial nominees.”

This blog was originally published at Confined Space on March 28, 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). 

OSHA to Employers Who Violate the Recordkeeping Rule: No Problem!

Monday, March 12th, 2018

Fewer than half of all employers required to send their injury and illness information into OSHA last year sent in the information. “The Occupational Safety and Health Administration was expecting about 350,000 summaries to be submitted by Dec. 31, the agency numbers provided to Bloomberg Environment March 7 show. Instead, employers required to participate submitted 153,653 reports, OSHA said.”

The so-called electronic recordkeeping regulation, issued under the Obama administration, intended the information to be used by OSHA to help target the most dangerous establishments, and the information would be posted to help employers compare themselves with others in their industry, and to inform workers and the public about employers’ safety records.

Employers with 250 or more employees, as well as worksites with 20 or more employees in high hazard industries, were required to send in their annual summary report — the OSHA Form 300A — by December 15, 2017.

But despite this huge crime wave, and a warning from Tom Galassi, OSHA’s director of enforcement, that “Those employers that were required to submit records and failed to so do may be subject to citation,” it seems likely that most employers who failed to comply with the law will receive no more than a slap — or maybe a slight caress — on the wrist. According to a memo sent to the field, employers are only subject to enforcement if OSHA begins an inspection before June 15 — six months after the December 15 due date for the submissions. If an employer is found not to have submitted the information — but gives it to the inspectors when they arrive — the employer will receive an “other than serious” citation, but no penalty.

Given that employers are required to provide that information to OSHA inspectors at the beginning of every inspection anyway, it’s hard to see what the downside of not complying is. 

Given that employers are required to provide that information to OSHA inspectors at the beginning of every inspection anyway, it’s hard to see what the downside of not complying is.

The memo also states that if the employer did not submit the 2016 data, but has already submitted the 2017 data, again, no penalty. The only way an employer can earn a penalty is if they refuse to give the inspector any data. The maximum penalty is $12,934, although it is highly unlikely it would reach that level. If the employer can show that the information was not sent due to technical difficulties, no citation would be assessed.

Former OSHA head Dr. David Michaels who issued the original regulation, said in an interview with Bloomberg, “OSHA is making a serious mistake. By not making meaningful efforts to enforce this legal requirement, OSHA is encouraging law-breaking employers, most likely those with the highest injury rates, to ignore OSHA’s regulation.”

Indeed. One wonders why even have a regulation if there is no penalty for ignoring it. The Trump administration and its business overlords have expressed their displeasure with the regulation, especially OSHA’s original intention to post the information, and is considering rolling back the next phase which would require more detailed information to be sent to OSHA.

Industry attorneys speculate that the reason so many employers are not complying is because they’re confused about whether they’re covered, or they thought OSHA would postpone the requirement again (after several previous postponements), or that they feared sending in information would increase their chances of getting inspected (which it would, if they have a poor record.)

Or maybe they just thought that this law-and-order administration doesn’t really take enforcing the law seriously.

The 2017 data is due to OSHA by July 1, 2018.

But then again, who cares?

This blog was originally published at Confined Space on March 9, 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).

Acosta to Defend DOL/OSHA Budget Tomorrow

Monday, March 5th, 2018

The House Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies will hold a hearing tomorrow morning at 10:00 am on the FY 2019 Department of Labor Budget. Secretary of Labor Alex Acosta will testify.

Ticked Off About Tipping

This should be a rather lively hearing for Acosta. Among the top issues he will be grilled on is the Department’s failure to publish an economic analysis of its tipping rule when it was proposed earlier this year. You may recall that DOL’s Wage and Hour Division apparently hid an economic analysis from that was intended to back up their reversal of an Obama era regulation that would have allowed restaurant workers to keep their tips.  Not publishing an economic analysis is a no-no when trying to change or eliminate a regulation — especially when you’re doing it just because you don’t like what the analysis says.

Members of Congress were not amused. Senator Elizabeth Warren has sent a letter to Labor Secretary Alexander Acosta saying she is “alarmed and angry” about at the report that DOL hid the results of their economic analysis and requested copies of all final and interim economic analyses, a list of DOL, OMB and White House officials who received copies of the analyses, and all e-mails related to the analyses within the Department of Labor, and between DOL and the White House.

OSHA Issues

There are a number of workplace safety and health issues that members can be expected to discuss with Acosta.

Beryllium Standard Delay: OSHA announced earlier this week that it was delaying enforcement of the beryllium standard by two months for all workers, and that it was putting into effect its weakening of protections for construction and maritime workers even before issuing a final standard that would have put the rollback into law.

Elimination of the Susan Harwood Training Grants: This is, in the immortal words of Yogi Berra, déjà vu all over again.  Trump proposed to eliminate this highly successful program last year and the House agreed. The Senate, however, refused — on a bipartisan basis — to eliminate the grants, and although we still don’t have a final FY 2018 budget, it looks like the program will survive another year.

Last year Acosta testified that the elimination of the $11 million Harwood grants was being made up for with a $4 million increase in the federal Compliance Assistance budget.  This year they’re only proposing to add $3 million to the Compliance Assistance Budget. Despite Acosta’s failure in basic arithmetic, Harwood grants do different things than hiring more Compliance Assistance Specialists or expanding VPP, as I explained last year.

The Susan Harwood Grants, on the other hand, provide money to non-profit organizations — colleges, labor unions, business associations, community groups — to provide direct, hands-on training to workers about the workplace hazards they face and their rights under the law.  The organizations that receive Harwood money often focus on “vulnerable” workers — like day laborers, immigrants and others who work in high hazard occupations and who are difficult to reach by OSHA. This is a very different audience than the CAS’s talk to and the programs perform a very different function. In addition, Harwood grantees are required to conduct sophisticated evaluations to ensure that their training programs are effective. Grantees also produce worker-oriented training materials that are publicly available. Some of the program’s success stories can be found here.

Expansion of VPP: The FY 2019 budget proposes adding $3 million 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.  The agency “anticipates approving 155 new VPP sites and re-approving 395 sites in FY 2019.”  And, as we’ve explained before, although VPP has always been a favorite program of Republican administrations, the program has faced significant integrity and funding issues over the past several years. Congresspersons may want to ask about the outcome of the two stakeholder meetings that OSHA held last year to discuss problems with the program.

They may also want to ask why the President would want to add more of OSHA’s scarce resource to a program that helps the best companies get better, instead of investing that money in enforcing the law against the bottom-feeding employers who cut corners and endanger workers.

Regulatory Agenda: There are a number of important standards on OSHA’s regulatory agenda that seem to be Missing in Action. Two of them address serious hazards faced by our front-line health care workers: infectious diseases and workplace violence.  The next step for infectious diseases is a proposal. Although a Request for Information was issued last year for workplace violence, the agency hasn’t even announced a date for the small business (SBREFA) panel yet — the first major step in the regulatory process.  Aside from a final standard weakening the beryllium standard for construction and maritime workers (see above), and weakening of the Obama administration’s electronic recordkeeping regulation  the only step on a major standard in the budget proposal is a SBREFA panel on a cell tower worker standard.

And, of course, the Representatives may want to ask Secretary Acosta if OSHA has figured out which two worker protections the agency will take away in order to comply with Trump’s “1 in/2-out” Executive Order if they go forward with the cell tower standard or any of the others.

This blog was originally published at Confined Space on March 5, 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).

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.

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