Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘NIOSH’

FY 2019 OSHA Budget Is Here: Good News, But More Work to be Done

Friday, September 28th, 2018

For the first time practically in recorded memory, the Labor-HHS-Education budget, which includes OSHA, MSHA and NIOSH, was passed and signed into law before the beginning of the new Fiscal Year — October 1st.  The final OSHA budget actually contains a $5 million increase over FY 2018 and $8.8 million over the President’s FY 2019 Request. We can thank the Senate for that, considering the final budget is a whopping $12.5 million over what the House wanted.

Highlights include:

  • The total OSHA budget is $557.8 million, a $5 million increase over FY 2018
    • $1 million increase for federal enforcement,
    • $1.5 million increase for state plans
    • $2.5 million increase for federal compliance assistance ($3.5 million will be spent on the Voluntary Protection Programs)
    • Susan Harwood Worker Training Grant program continues to be funded at $10 million — despite the Trump administration’s continuing efforts to kill it.
    • There are no “poison pill” riders — attempts to kill silica enforcement or OSHA’s electronic recordkeeping standard.
  • The MSHA budget is level funded.
  • NIOSH will receive  $336.3 million (a $1 million increase over FY 2018).
    • Trump’s proposal to transfer NIOSH to the National Institutes of Health and slash the NIOSH budget was rejected. Funding for the Educational Resource Centers, Agriculture, Forestry and Fishing Research Centers and other NIOSH programs was maintained.
  • A few other Labor Department programs — Wage and Hour Division, Bureau of Labor Standards and the Office of Labor Management Standards — also got small increases although funding for employment services was cut.

A Word of Warning

But don’t get too happy. While these small increases (or level funding) are good news considering who’s in the White House and in control of Congress, funding for virtually all of the labor programs has been basically frozen for years. The total OSHA budget, and some line items like State Plan funding, are still lower than they were in 2012, as you can see in the table below.  And while the budget hasn’t shown much change, the  costs of operating these programs have increased, resulting in declining staffing levels and program activity.

As AFL-CIO Safety and Health Director Peg Seminario summarizes, “we have a victory holding the line, but much more work to be done.”

This blog was originally published at Confined Space on October 3, 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).

On the Disturbing Return of Black Lung

Friday, July 27th, 2018

The push to revive America’s coal industry has generated alarm because it is almost certain to worsen the climate crisis. But the industry also brings an immediate human cost: black lung disease. Black lung is an often fatal condition contracted by miners who breathe in coal and silica dust on the job. Rates of the disease dropped towards the end of the 20th century, thanks in part to federally mandated reductions in the amount of coal dust miners were allowed to breathe in. Now, researchers at the National Institute for Occupational Safety and Health have documented a troubling new trend: Black lung disease cases, particularly among younger miners, have risen sharply since the mid-1990s.

One chart from the group, published by the New York Times earlier in 2018, shows that in 1995 there were “3.7 cases per 1,000 miners.” By 2015, that number had jumped to over 50 cases per 1,000 miners.

Overall, there has been a steady upsurge in the number of cases of black lung, including in its most aggressive forms. A 2018 National Public Radio report identified many reasons for the increase, including the fact that many miners are working longer hours with less time to rest and recover between shifts. Advances in mining technology have also led to the use of more powerful extraction machines that throw more toxic coal dust into the air and into the lungs of coal miners. These factors have made the coal mining regions of Appalachia the “epicenter of one of the worst industrial health disasters in U.S. history,” according to a recent article by Kentucky lawyer, Evan Smith.

Smith advocates on behalf of coal miners through his work at the Appalachian Citizens’ Law Center. Writing for the West Virginia Law Review, Smith calls the uptick in black lung cases evidence of a “gut-wrenching reversal of 20th century progress.” Black lung disease is preventable, Smith insists, and should have gone the way of smallpox long ago. (Black lung is actually not a medical term, Smith points out, and notes that it is just one name for a host of debilitating physical conditions experienced by miners.) Although mining has always been a dangerous occupation, rates of black lung disease did drop from the 1970’s until the beginning of the 21st century, thanks to improved workplace and environmental regulations.

Dangerous working conditions

Looking beyond black lung, recent incidents such as the 2010 Upper Big Branch mining disaster in West Virginia have shown that working conditions for coal miners often remain harrowingly unsafe. Portions of the Upper Big Branch mine exploded in 2010, killing 29 workers. In the aftermath, autopsies were carried out on a majority of the lungs of those killed, revealing that 71 percent of them had black lung disease, including a worker who was just 25 years old when he died. Upper Big Branch was owned then by Massey Energy, whose CEO, Don Blankenship, was sentenced to one year in prison for his role in making the mine an unsafe place to work.

One of the things that made the Upper Big Branch mine so unsafe was the fact that Blankenship had driven out the miners’ union. Blankenship, who is a current  U.S. Senate candidate in West Virginia as a member of the Constitution Party, “made it his personal campaign to break the union at the mine,” according to a 2010 report by Public Radio International. This resulted in workers having to take on 12-hour shifts as one of Massey Energy’s reported cost-cutting measures. What followed was a number of articles arguing, as reporters Taylor Kuykendall and Hira Fawad did in 2015, that union-staffed mines are more productive and less dangerous for workers. One key piece of Farwad and Kuykendall’s evidence for this comes from safety records in 2014, when just one out of 16 work-related mining deaths occurred at a union site.

Despite Kentucky’s history of worker militancy, today there are zero union mines left in the state, which is at the heart of Appalachian coal country. Still, a group called Kentuckians for the Commonwealth continues to advocate on behalf of the thousands of coal miners who work in the state. Acknowledging the rise in black lung disease among miners, the group aims to move away from relying on toxic, fossil fuel industry jobs such as coal mining.

A dying industry

A 30-year-old organization, Kentuckians for the Commonwealth was born out of a late 1970s movement that documented who was benefiting most from Kentucky’s coal-rich land. (Hint: it wasn’t local communities.) The group organizes workers and residents around its vision of a more inclusive, democratic society and cites direct action as one of its key strategies. Right now, a prominent feature of the group’s work is called Appalachian Transition, which is built around the recognition that, despite Trump’s campaign rallies, coal mining is a dying industry. The goal, according to the Kentuckians for the Commonwealth website, is to “support coal communities and workers as we shift away from a fossil fuel economy to one that is more sustainable and equitable.”

The group criticizes the instability and inequity of the coal industry, which often results in large, non-union corporations cutting a destructive path through Kentucky’s rural communities. Kentuckians for the Commonwealth shares stories of people who have reclaimed the land in the Kentucky mountains, in order to reinvest in the environment and learn 21st century skills such as restorative agricultural practices and sustainable forestry—something that has been done in other coal-producing regions in Germany. The ultimate goal is the creation of a base of grassroots power among Kentuckians, even as the state’s legislature continues to align itself with corporate interests.

For proof, one has to look no further than a recent case concerning black lung disease and workers’ rights. Just weeks ago, executives from the now-closed Armstrong Coal company in Owensboro, Kentucky were charged with “falsifying federally mandated coal dust tests designed to protect miners from incurable black lung disease,” as an editorial in the Lexington Courier Journal put it. The case against Armstrong Coal was prompted by two coal miners who went public with their story in 2014, detailing the destructive impact of black lung disease on their lives. Workers felt forced into going along with the company’s deceptive policies, according to news reports—a situation not unlike that in many mines, especially where union protection has been lost.

The Armstrong Coal case prompted another Kentucky newspaper’s editorial board to declare that “coal miners’ lives still matter,” yet it might be hard for those seeking medical help for black lung disease in Kentucky to believe this. In July, new state laws went into effect that not only make it harder for workers hurt on the job to qualify for workers compensation, but also “excludes the most qualified physicians from being heard in black lung claims.” When the laws were passed, Smith, of the Appalachian Citizens’ Law Center, told National Public Radio that this move “keeps Kentucky coal miners from using highly qualified and reliable experts to prove their state black lung claims [and] looks like just another step in the race to the bottom to gut worker protections.”

So, when Donald Trump and his allies wax poetic about bringing “clean, beautiful coal” jobs back to places like Kentucky, it seems fair to ask a simple question: at what cost?

This article was originally published at In These Times on July 27, 2018. Reprinted with permission.

About the Author: Sarah Lahm is a Minneapolis-based writer and former English Instructor. She is a 2015 Progressive magazine Education Fellow and blogs about education at brightlightsmallcity.com.

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).

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).

Oil Worker Safety Hearing Yields Real Concerns

Friday, June 25th, 2010

Ravi BakhruOil rig worker safety has been in the news a lot lately. Nearly every major media outlet and blogger in the entire Nation has directed its attention to arguably the worst environmental disaster in our history. As a result, the headlines and attention have been comprehensive, ranging from BP’s efforts in responding the disaster, to the safety of oil rig workers and those commissioned to help clean up the coastline.

To that end, The House Education and Labor Committee held a hearing on Wednesday to discuss worker safety oversight from the oil rig to the shoreline. Pointedly, Chairman George Miller tasked the hearing with determining whether the current regulatory framework is appropriate and effective, specifically referencing the coordination and delegation of oversight between various federal agencies. Before the committee were representatives from the Coast Guard, NIOSH, the DOL, and BOE (formerly MMS).

Major Points From The Hearing:

Whistleblower Protection. Chairman Miller at one point asked whether workers on these rigs had the benefit of whistleblower protection to provide an avenue by which they could report dangerous conditions. While OSHA provides whistleblower protection, it is clear that the agencies responsible for worker safety oversight do not have a process by which such complaints can be processed. What’s even more startling is that OSHA, the agency responsible for enforcing whistleblower statutes, has no jurisdiction where many of these rigs operate. OSHA’s jurisdiction ends 3 miles outside of the coast line, where the US Coast Guard takes over, and what became clear during this hearing is that the US Coast Guard and MMS/BOE do not have legislation in place for whistleblower protection.

“Who’s In Charge?” Ranking Republican John Kline started with a question that seemed to be a topic members were confused with. At one point the Congressman compared the current system of oversight to the lack of coordination in the intelligence community immediately after 9/11. On a related issue, the Committee seemed to gloss over the fact that the Coast Guard and BOE had a memo of understanding between them, distributing inspections over specific items on board rigs. Although the organizations meet quarterly to review their inspections, I can’t help look at this as wholly inefficient. Now, this doesn’t necessarily apply to an accident response framework. Rear Admiral Kevin Cook from the Coast Guard made it clear that the Coast Guard’s Federal On Scene Coordinator was doing a tremendous job coordinating the help from all federal agencies at the accident site. Credit should be given in this regard.

Staggering Deficiencies. Committee members asked in several different ways whether the agencies before them had the necessary resources to perform their oversight functions and the resounding answer was in the negative. David Michaels, representing OSHA, was asked to expand on a comment made during a Senate hearing explained that their resources were barely sufficient to handle their present functions, let alone take on new inspections of offshore drill sites. Doug Slitor explained his agency had a total of 56 inspectors (some with purely administrative and supervisory responsibilities) in the Gulf of Mexico for 3500 site inspections every year.

Safety Systems Management. The Committee made it very clear they consider OSHA to be the experts when it comes to safety oversight, and who would disagree with them? Sure, OSHA has their own problems as Mr. Michaels pointed out, when it comes to worker safety OSHA has the framework in place to broaden their scope if need be. Of particular concern was the current system in place, which at the moment is largely voluntary. Not only voluntary, Chairman Miller also noted the framework was largely due to suggestions from the oil industry itself. It seems clear that many are not pleased with the oversight framework currently in place, and want to see changes made. The phrase “like a duck” kept jumping out as the camera swung over to Mr. Slitor’s responses. Though he remained calm, I imagine his legs were churning furiously underwater.

We don’t yet know what caused the explosion itself, and perhaps we will never truly know. But the fact remains, something went wrong aboard that oil rig leading to the deaths of 11 workers. Hearings are a good start, but when you see problems in communications and standards, it’s time to act. Committee members repeatedly stated the need to ensure an efficient and protective system before the next disaster. I sincerely hope they live up to that.

About The Author: Ravi Bakhru is a third year law student at George Washington University. He currently works as an intern for Workplace Fairness, and has an interest in pursuing employee rights law in the future. To get in touch with Ravi, you can email him at Ravi.Bakhru@gmail.com.

Your Rights Job Survival The Issues Features Resources About This Blog