Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘OSHA’

Big retail chains like Walmart fight being held accountable for injuries to workers

Monday, January 19th, 2015

Laura ClawsonThe federal government is trying to do a better job tracking workplace injuries, which would make it easier for workers to show that they were injured on the job and get some compensation. But—of course—industry lobby groups are fighting hard to prevent accountability.

Currently, manufacturing companies are required to tell the government about injuries workers suffer on the job. But employers in other industries don’t have to report those injuries, which makes it easier for them to claim they’re not responsible. If workers can’t show that there’s a pattern of, say, tendinitis in a specific workplace, they’re more likely to lose injury claims against the boss. After all, any one person can get tendinitis for all sorts of reasons. But if there’s information on how many people have injuries in that workplace, workers might be able to point to patterns that would show that their own injuries aren’t random chance or due to something they did outside working hours.

Under a planned rule from the Occupational Safety and Health Administration, companies with more than 250 workers and smaller companies in particularly dangerous industries:

“… would be required to submit data including the job title of the employee, the type of injury, where it occurred, what the worker was doing before the incident, and the number of workdays the employee had to miss as a result. With the information, OSHA and employers ‘will be better able to … abate workplace hazards,’ an OSHA spokeswoman said in an email.”

It’s information employers are already required to keep records of. All that would change would be that they would submit it to the government four times a year. Not a huge expense or effort, you’d think. But:

“The National Retail Federation—a group that represents Walmart, McDonald’s, and The Container Store—spent $2.4 million lobbying on this measure and other issues between January and September of last year. In a letter to OSHA last March, the group complained that the rule would require disclosure of confidential information, lay blame on employers for non-work-related injuries, be too costly, and empower unions. Last year, the Retail Industry Leaders Association, which counts Walmart, Target, and Home Depot among its more than 200 members, also urged the agency to kill the rule. The US Chamber of Commerce spent more than $28 million between July and September of last year on lobbying—including on this regulation, which the Chamber says is more burdensome on industry than OSHA will admit. And the Coalition for Workplace Safety, an association of trade groups that includes the Chamber, the NRF, and NILA, has asked OSHA to scrap the rule.”

“Require disclosure of confidential information”—that’s the same information that the manufacturing industry has long been required to disclose—”lay blame on employers for non-work-related injuries”—or, you know, keep employers from being able to lawyer their way out of being held responsible for work-related injuries—”be too costly”—sure, if the company had been escaping responsibility for a lot of work-related injuries that it’s suddenly held accountable for—”and empower unions”—by providing information about whether the employer is harming its workers. In other words, “it’s convenient and cheap for us to avoid accountability for workplace injuries, and we would like that to continue.” And to be fair, they probably do have something to fear. Even without this reporting requirement, for example, Walmart has faced serious fines for workplace safety violations. Imagine if that information was all in one place for the government, workers, and reporters to see.

This blog originally appeared in dailykos.com on January 19, 2015. Reprinted with permission.

About the Author: Laura Clawson Daily Kos contributing editor since December 2006. Labor editor since 2011.

Proposed Silica Standard Needs to Be Strengthened

Monday, March 24th, 2014

Image: Mike HallWhile the AFL-CIO “strongly supports” a proposed new rule that would limit workers’ exposure to silica dust, AFL-CIO Safety and Health Director Peg Seminario outlined several areas that should be strengthened to provide better worker protection from deadly silicosis and other diseases caused by silica exposure.

Testifying before an Occupational Safety and Health Administration (OSHA) hearing, Seminario noted that changes to the current exposure standard—now more than 40 years old—were first proposed in 1997 and that when the proposed new standard was sent for review to the Office of Management and Budget in 1991, it lingered there for two-and-a-half years.

Every day that a final standard is delayed, workers will continue to be at increased risk of disease and death.

Every year some 2 million workers are exposed to silica dust and, according to public health experts, more than 7,000 workers develop silicosis and 200 die each year as a result of this disabling lung disease. Silicosis literally suffocates workers to death. Silica is also linked to deaths from lung cancer, pulmonary and kidney diseases.

Seminario said that permissible exposure limit in the proposed standard while set at half the current level is still too high. She urged that a stricter standard be included in the final and said that other provisions in the standard should be strengthened, including:

  • Establishing regulated work areas to limit the number of workers on the job who are exposed to silica dust;
  • Requiring that the primary method to control silica dust is through engineering and work practice controls rather than through respiratory control—i.e., masks;
  • Requiring employers create a written compliance/exposure control plan; and
  • A stronger standard to trigger medical surveillance of workers exposed to silica.

Other areas she addressed included protecting the confidentiality of workers’ medical records, preventing employer retaliation against workers who seek medical care for exposure to silica and better training and information for workers.

The hearings continue next week and workplace safety and health experts from other unions, along with workers who have developed silica-related illnesses, will appear during the course of the hearings. But a number of employer groups in such industries as sand and gravel, brick, fracking where silica dust is prevalent, the U.S. Chamber of Commerce and other corporate groups have or will testify against the proposed rule during the 14 days of hearings in Washington, D.C.

This article was originally printed on AFL-CIO  on March 21, 2014.  Reprinted with permission.

About the Author: Mike Hall is former West Virginia newspaper reporter, staff writer for the United Mine Workers Journaland managing editor of the Seafarers Log.  He came to the AFL- CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.

Industry Attacks on ‘Scaffold Law’ Put Construction Workers on Shaky Ground

Monday, March 17th, 2014

Michelle ChenNew York City’s tens of thousands of construction workers face a precarious landscape at work.  Teetering at the edge of rooftops, sidestepping mammoth cranes and noisy bulldozers, and navigating through half-collapsed walls and chemical-laden debris, they’re surrounded by hazards day in and day out. Yet many workers remain silent about unsafe conditions. For them, the risk of retaliation outweighs the risk to life and limb.

Given these hazards, one might assume that demanding employers take responsibility for worker safety is about as basic a precautionary measure as a hard hat. Yet, construction industry lobbyists are working hard to gut the Scaffold Law, a keystone piece of occupational safety legislation that has for more than a century added an extra layer of accountability for firms that fail to protect workers from harm. Complaining that the law cuts into their bottom line, opponents have in recent months pushed for reform legislation in Albany that could prove disastrous for the workers most at risk: non-union Asian and Latino workersdoing small-scale and informal building jobs already off the regulatory radar of the federal Occupational Safety and Health Administration (OSHA).

The Scaffold Law, a state law on the books since 1885, states that worksites above the ground “shall be constructed, placed and operated as to give proper protection to a person so employed.” The law holds owners and contractors liable for injuries that result as a violation of those standards, and allows employees to sue for damages if they can demonstrate that such a violation occurred and caused the injury in question. Advocates say that the law thereby promotes safety standards such as provision of appropriate training and protective equipment, as well as checks to ensure that worksites are structurally sound.

Opponents say New York’s law is a frivolous measure unique to a notoriously litigious city. But in reality, lawmakers passed the Scaffold Law in response to alarming reports of injuries and deaths caused by unsafe conditions at building sites, including faulty scaffolds. And in fact, other states have passed similar safety laws over the years.

Illinois’ occupational safety record worsened after the state repealed the law in 1995. According to one analysis by a trial lawyers’ group, “In 2004, the incidence rate of falls from scaffolding/staging in the construction industry in Illinois was more than triple the national rate.”

The firms and business groups, including the Associated Builders and Contractors, American Insurance Association and, in a nod to diversity, Association of Minority Enterprises NY, mobilizing against the law blame it for excessive litigation and insurance costs, saying that it puts undue emphasis on the employer rather than the “personal responsibility” of the worker. They say the law should be rewritten to allow for consideration of “comparative negligence,” to take into account workers’ alleged carelessness. Proposed changes to the law would explicitly direct juries to consider the degree to which the worker caused the accident. The idea is to create more legal wriggle room to limit the company’s legal and financial liability toward victims.

Critics point out that under the current law, the courts are already tasked with adjudicating these factors in civil suits when determining whether the employer is legally at fault for a safety failure, since the law addresses only proven violations of safety codes. But more importantly, critics argue that the concept of “comparative” responsibility is absurd in light of the outsized power imbalance between construction workers and bosses.

Of course, the Scaffold Law provides just a thin layer of protection against an endemically oppressive labor market.

But the Center for Popular Democracy (CPD), a New York City-based advocacy group, argues that the Scaffold Law helps “protect workers from dangers at work that lead to disparate outcomes based on race, ethnicity, or language.”

Occupational hazards, as well as labor abuse, are rife across the construction industry, particularly for more casual, unregulated work, such as the day laborer jobs that proliferated in the aftermath of Superstorm Sandy and the small-scale contractor projects on private suburban homes. Falls from heights made up over one-third of construction worker deaths in 2012, and construction workers suffer injuries that are more frequent and severe than workers in many other private-sector industries, according to data from the Bureau of Labor Statistics. According to an analysis by CPD, in New York City between 2003 and 2011, a stunning 74 percent of fatal construction-site falls investigated by OSHA involved Latino or immigrant workers, exceeding their representation in the general population and the construction workforce. Most occurred on smaller, non-union worksites, where undocumented labor is typically concentrated.

Other research from advocacy groups and occupational-safety authorities suggests Latino immigrant workers are deterred from speaking out about unsafe conditions, in part due to limited English ability or fear of exposing their immigration status. That compounds the oppression of economic precarity and discrimination; it’s hard to feel empowered to challenge your working conditions when you’re “off the books.”

CPD’s analysis highlights the perilous tightrope these workers traverse each day. In one case narrative in the report, two men were working at a height of 16 feet, and “They were moving and adjusting the scaffold when employee #1 fell. Employee #1 was not tied off to his lifeline. Employee #1 was pronounced dead at the hospital.”

Those who survive such workplace accidents may never fully heal. In an interview with WNYC last year, Pedro Corchado recalled an accident while working on a ladder in the Bronx in 2008. “The ladder collapsed on me,” he said. “I fell about 11 feet or so to the concrete floor. I suffered neck and lower back injuries that will be with me the rest of my life.”

Under the proposed reform, these workers might come under scrutiny for being “negligent”—Why did he get on a shaky ladder in the first place? Why wasn’t his lifeline securely tied? Advocates counter that question’s about the employer’s negligence—Who was charged with overseeing the worksite? Did inadequate equipment or poor management place workers in harm’s way?— ultimately hold more weight.

“The fact of the matter is, you could be doing everything right,” CPD Director of Strategic Research Connie Raza tells Working in These Times. “If you don’t have the right equipment, you’re not going to be able to keep yourself safe in every circumstance that comes up. And it is the owners’ and the contractors’ responsibility to make as safe a workplace as possible, but certainly as safe a workplace as legally required.”

As for the business case against the law’s cost, it is true that some of this uniquely litigious city’s largest civil settlements in recent years came from suits involving construction-related scaffold and ladder injuries.

But this is offset by the permissiveness of the federal regulatory environment. According to the AFL-CIO, the average penalty assessed for a “serious” violation of an OSHA standard, such as failing to provide appropriate mechanical safeguards or protective gear—in New York in 2012 was $2,164. (Criminal prosecutions are virtually unheard of, and the agency’s inspection and enforcement capacity is severely hampered by chronic understaffing).

While the contractors at the top of the construction industry complain of lawsuits and insurance costs, Razza says the suggested reforms “would shift responsibility away from owners and contractors who control the work site, to workers who don’t, and who are often really in a relationship where they feel threatened if they come forward with complaints … The construction and insurance industries are trying to push back and save money, and the reason that the law is so important is that it saves lives.”

This article was originally printed on Working In These Times on March 12, 2014.  Reprinted with permission.

About the Author: Michelle Chen is a contributing editor at In These Times, a contributor to Working In These Times, and an editor at CultureStrike. She is also a co-producer of Asia Pacific Forum on Pacifica’s WBAI. Her work has appeared on Alternet, Colorlines.com, Ms., and The Nation, Newsday, and her old zine, cain.

Texas Fertilizer Co. Cited for Safety Violations in Blast that Killed 15

Saturday, October 12th, 2013

Image: Mike HallThe company that operated the West, Texas, fertilizer plant where 30 tons of highly explosive ammonia nitrate—stored in wooden sheds without sprinkler systems and near other combustible material—caught fire, exploded and killed 15 people, including 10 firefighters, in April was cited for two dozen serious safety violations by the Occupational Safety and Health Administration (OSHA).

OSHA issued the citations Wednesday but, because of the Republican government shutdown, the agency was unable to announce the action. Sen. Barbara Boxer (D-Calif.), chair of the Environment and Public Works Committee, announced the safety violations Thursday.

Among other violations, West Fertilizer Co. was cited for unsafe handling and storage of the anhydrous ammonia and ammonia nitrate that exploded and leveled large parts of the town of West. The company also was cited for not having an emergency response plan. OSHA is proposing fines totaling $118,300.

Also after the blast, it was revealed that the plant had not been inspected by OSHA since 1985.

Storage of ammonia nitrate is regulated by a “patchwork” of state and federal standards with “many holes,” the U.S. Chemical Safety Board (CSB) told a Senate hearing earlier this year.

Eleven years ago, the CSB urged the Environmental Protection Agency (EPA)—which hasn’t updated its rules on ammonia nitrate since 1997—to adopt its safety recommendations for storage, handling and use of the chemical.

In August, President Barack Obama issued an executive order for federal agencies, including OSHA and the EPA, to develop new rules to address the handling and storage of industrial chemicals, such as the ammonia nitrate fertilizer in the Texas explosion. Those rules were due by Nov. 1 but, because of the Republican government shutdown, they are likely to be delayed.

Thousands of facilities around the nation store large amounts of ammonia nitrate, especially in rural areas. That’s why new rules are desperately needed, said Boxer.

“All of these things that they are cited for are pretty much standard operating procedure with how you deal with these chemicals.”

This article was originally printed on AFL-CIO  on October 11, 2013.  Reprinted with permission.

About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journaland managing editor of the Seafarers Log.  He came to the AFL- CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.

A Victory for Silica Dust Exposed Workers?

Tuesday, August 27th, 2013

Mike ElkToday, after a much-criticized delay on issuing a rule to limit workers’ exposure to cancer-causing silica dust, the Obama administration put forward a proposed rule for public consideration. The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) estimates that once the rule is in effect, it could save 700 lives a year and prevent nearly 1,600 cases of silicosis annually.

In an OSHA press release, Dr. David Michaels, assistant secretary of labor for occupational safety and health, commented, “Exposure to silica can be deadly, and limiting that exposure is essential. Every year, exposed workers not only lose their ability to work, but also to breathe. This proposal is expected to prevent thousands of deaths from silicosis—an incurable and progressive disease—as well as lung cancer, other respiratory diseases and kidney disease. We’re looking forward to public comment on the proposal.”

Workplace safety advocates applauded the decision. In a press release issued by the non-profit National Council for Occupational Safety and Health, executive director Tom O’Conner noted that workers who are most exposed to silica tend to be those least able to advocate for themselves.

“Low-wage immigrant workers and temporary workers are disproportionally represented in the industries with silica exposure—and are the most vulnerable to retaliation should they report potential hazards, injuries or illnesses,” O’Conner said. “This new rule will help to pull them out of the shadows and make them safer at work. Everyone, regardless of immigration status, deserves a safe workplace.”

However, some in organized labor say the fight to enact the rule has just begun, as it will have to undergo a public comment period before it is issued. In his response to the news of the rule, AFL-CIO President Richard Trumka cautioned:

But this rule is only a proposal–workers exposed to silica dust will only be protected when a final rule is issued.  Some industry groups are certain to attack the rule and try to stop it in its tracks. The AFL-CIO will do everything we can to see that does not happen. We urge the Obama administration to continue moving forward with the public rule-making process without delay. The final silica rule should be issued as fast as humanly possible, to protect the health and lives of American workers.

This article originally appeared in Working in These Times on August 23, 2013.  Reprinted with permission.  

About the Author: Mike Elk is an In These Times Staff Writer and a regular contributor to the labor blog Working In These Times.

The Most Injurious Job in America

Tuesday, July 23rd, 2013

Mike ElkWhile hospitals are better known for treating injuries than causing them, statistics show that for workers, hospitals can be a dangerous place. A new report put out by Public Citizen found that in 2010, healthcare workers (including hospital staff) reported 653,900 workplace injuries and illnesses. That’s approximately 152,000 more (a 432 percent higher rate) than the industry with the second highest number of injuries—manufacturing—even though the healthcare sector is only 134 percent larger than the manufacturing sector.

Part of the reason that healthcare workers’ injuries may have flown under the radar is because of the type of injury involved. Unlike manufacturing and construction, where injuries are more likely to result in death, healthcare workers mainly suffer non-lethal musculoskeletal disorders. The rate of musculoskeletal disorders among workers in the healthcare industry is seven times higher than among other workers—a trend that Suzy Harrington, director of the American Nurses Association’s Department for Health, Safety and Wellness, calls “alarming.” Although these conditions aren’t fatal, if untreated, they can lead to permanent disability.

The most common cause of musculoskeletal injuries for healthcare workers is lifting patients by hand instead of using a mechanical device. Yet while ten states, including Washington, California and Maryland, have dramatically reduced injuries by passing safe patient handling laws, which mandate that hospitals “furnish mechanical lifting and transfer devices,” no nationwide standard exists to protect healthcare workers.

Another major danger for healthcare workers is workplace violence. Workers in the healthcare sector suffer 45 percent of all incidents of workplace violence, and nursing home employees are especially affected, with seven times the average rate of injury from workplace violence. Violence in medical settings may arise from interactions with belligerent patients, who may be drunk, drugged or emotionally disturbed. Yet the Occupational Safety and Health Administration (OSHA) has never made a rule to require healthcare facilities to implement safeguards for their employees (such as metal detectors, security guards or even locked doors to isolate patients in guarded areas.) This is part of a larger problem: There are no federal OSHA rules requiring employers to ensure workplaces are safe from violence.

But workplace safety advocates say that OSHA’s particular lack of focus on the healthcare sector is symptomatic of the agency’s slow response to the shift to a service-based economy.

“OSHA has not been able to keep pace with the way the economy has shifted over the last 20 years,” says Keith Wrightson, worker safety and health advocate for progressive watchdog group Public Citizen. “The economy has shifted away from one that is industrially-based to one that is service-based. They are hardly any rules that directly affect the healthcare industry. We counted them out and there are only nine rules, but if you look at construction and manufacturing, there are literally hundreds—and rightly so, those industries are highly dangerous.”

OSHA, for its part, insists that it is very concerned about safety in the healthcare industry.

“Employers have the legal responsibility to provide workplaces free of recognized hazards.  They must take ownership over this issue, and our role is to see that they do,” says Assistant Secretary of Labor for OSHA David Michaels. “OSHA has a variety of tools at its disposal to hold employers accountable for safety and health, and we are committed to improving safety and health conditions for our nation’s healthcare workers. Under this administration, OSHA has done more than any previous administration to address the issues that persist in this industry.”

In response to questions from Public Citizen, OSHA elaborated on these efforts, explaining that it has instituted recent programs “to encourage employers in hospital and healthcare facilities to reduce hazards. For example, Assistant Secretary for OSHA David Michaels launched an OSHA initiative to work with hospitals and nursing homes to recognize the close link between patient safety and worker safety.”

However, when it came to passing concrete rules regulating the musculoskeletal injuries that plague the healthcare industry, OSHA ran up against a major stumbling block: Congress. In 2000, OSHA passed a rule aimed at reducing musculoskeletal injuries by making employers adopt measures shown to reduce ergonomic injuries. But in 2001, a Republican-led Congress repealed the rule. OSHA has since attempted to use the general duties clause under the Occupational Safety and Health Act to cite employers whose ergonomic conditions present a clear danger to workers, but that poses a trickier legal case to make than if there was were a specific rule, and in the past two fiscal years OSHA has only done so seven times, according to the report put out by Public Citizen.

In response to questions from Public Citizen about whether or not the agency intended to issue a another ergonomic rule, OSHA said, “At this time, OSHA is not pursuing a rule on safe patient handling for healthcare workers. We continue to be concerned about this serious issue and promote sensible solutions through the  NEP [National Emphasis Program] guidance and outreach activities. However, OSHA does not have resources to move forward on all rulemaking necessary to address all the pressing workplace health and safety hazards.”

Rules, however, are only the first step. For instance, while OSHA has rules in place to prevent healthcare workers from being accidentally stabbed, they still suffer an alarming 400,000 stab wounds a year from surgical instruments and needles. Public Citizen’s Wrightston says that such injury rates are unnecessarily high because OSHA, with its limited budget of only $565 million, has few resources—and what resources it does have are not focused nearly enough on healthcare workers, he says.

“OSHA has devoted relatively little effort to addressing the safety risks in healthcare compared to other highly afflicted industries,”  says Wrightson. “For example, health care workers outnumber construction workers more than 2 to 1, but OSHA conducts only about one-twentieth as many inspections of health care facilities as construction sites.”

Indeed, statistics show that OSHA conducted 52,179 inspections of the construction industry in 2010, which employs 9.1 million workers and saw 74,950 injuries that caused workers to take at least one day off work. In comparison, last year OSHA conducted only 2,540 inspections of the healthcare industry, though it employs more than twice as many workers and saw 176,380 such injuries.

Some of the differential is due to the higher mortality rate for construction injuries, which cause five times as many deaths on the job. However, according to the Public Citizen report, “Even if fatalities were the only factor considered, healthcare inspections would need to be increased by about a factor of four to bring them into parity with construction sector inspections.”

Another gap in OSHA coverage, advocates say, was built into the agency’s NEP iniative, which was created in 2011 to focus on nursing home occupational safety—but not hospitals. “We want the National Emphasis Program to focus on hospitals. OSHA could do this right now with the swipe of pen,” says Wrightson. “The reason that they have not concentrated on hospitals is due to industry lobbyists.”

OSHA did not answer Working In These Times’ inquiries about why the National Emphasis Program (NEP) has not been expanded to target hospitals, but did point to its educational programs on workplace safety for hospitals.

Advocates insist, however, that Congress and OSHA must go beyond education to better enforcement and rulemaking in order to prevent injuries in the healthcare workplace. At the end of the day, advocates say, those that suffer the most from injuries to healthcare workers are patients.

“[Musco-skeletal injuries are] a primary reason healthcare workers leave direct patient care,” says Harrington. “We can’t afford to lose healthcare workers to injury and still meet rising demands for healthcare services.”

Article originally posted on Working In These Times on July 22, 2013.  Reprinted with permission. 
About the Author: Mike Elk is an In These Times Staff Writer and a regular contributor to the labor blog Working In These Times.

The “New” Discrimination: Retaliation Based on Health Care Rights

Monday, May 20th, 2013

Ryan PriceIf you don’t already know, the Affordable Care Act (“ACA”), a/k/a Obama Care, does not take effect all at once. (I say “if you don’t already know,” because a recent poll shows that 42% of Americans are unaware that Obama Care is currently the law of the land).

Title I of the Act, which is considered one of the most controversial parts of the Act, does not take effect until next year. Once it takes effect, employers may not make employment decisions based on an employee’s health care decisions. Employers will, of course, make decisions that impact employees negatively, because the ACA will increase employers’ costs and responsibilities associated with health care. This is why employees need to be aware of their new rights.

You have probably heard about the many employers who have started cutting employee hours to evade having to comply with Obama Care. If you’re one of them, you’re out of luck. The law doesn’t protect you yet.

Starting on January 1, 2014, an employer may not retaliate against you based upon your health care selections. Specifically, an employer cannot terminate, demote, discipline, intimidate, threaten, deny benefits or promotion, reduce pay or hours, blacklist, or fail to hire an employee based on the fact that the employee:

  • Provided information relating to any violation of Title I of the ACA, or any act that he or she reasonably believed to be a violation of Title I of the ACA to the employer, the Federal Government, or the attorney general of a state;
  • Testified, assisted, or participated in a proceeding concerning a violation of Title I of the ACA, or is about to do so;
  • Objected to or refused to participate in any activity that he or she reasonably believed to be in violation of Title I of the ACA; or
  • Received a credit under section 36B of the Internal Revenue Code of 1986 or a cost sharing reduction under section 1402 of the ACA.

If an employer retaliates against you for engaging in any of these activities after January 1, 2014, you may file a complaint with the Occupational Health and Safety Administration(“OSHA”). OSHA has a broad range of powers to help employees combat the “evildoer” employers, including the powers of investigation, enforcement, negotiation, settlement, and the ability to award damages. The employee’s first, and critical step, is to file a claim with OSHA within 180 days from the date of retaliation.

Unlike most employment discrimination cases, the standard for proving retaliation in these cases is much more employee-friendly. You only need to demonstrate you had a reasonable belief that the employer was retaliating against you. Further, you will only need to provide evidence that your health care decision was a factor in the retaliation, not the only factor in retaliation. Hopefully, employers will have a much more difficult time defending against these types of discrimination cases. With any luck, this will deter them from violating the ACA in the first place.

This article was originally printed on Screw You Guys, I’m Going Home on May 10, 2013.  Reprinted with permission.

About the Author: Ryan Price is an Associate Attorney at Donna M. Ballman, P.A., Employment Advocacy Attorneys.

28-Year Inspection Gap at Deadly Texas Fertilizer Plant ‘Stunning Indictment’ of OSHA’s Underfunding

Wednesday, April 24th, 2013

Image: Mike HallThe West, Texas, fertilizer plant, where a fire and explosion last week claimed at least 14 lives—including 11 firefighters and EMTs—and injured more than 200, was last inspected by the Occupational Safety and Health Administration (OSHA) in 1985.

In 2011, the West Fertilizer Co. filed an emergency response plan with the U.S. Environmental Protection Agency (EPA) that said there was no risk of fire or explosion, despite the fact that as much as 54,000 pounds of flammable and toxic anhydrous ammonia could be stored on the site.

While the plant reported that it was storing up to 270 tons of highly explosive ammonium nitrate to state authorities—Oklahoma City bomber Timothy McVeigh needed just two tons to blow up the federal building and kill 168 people—it did not report that fact to the U.S. Department of Homeland Security.

In addition, several other federal and state agencies had pieces of the regulatory responsibility to protect the workers and community. The plant was surrounded by homes, a senior citizen housing project and a nearby school. But as Bryce Covert of Think Progress writes:

Many of these agencies have previously cited and/or fined the company. But they aren’t required to coordinate with each other, and small distributors like the one that exploded are part of a system that focuses more on larger plants.

While those state and federal agencies may inspect certain segments of a plant’s operations—emissions, for example—OSHA is the agency with the broadest mandate and authority to inspect a plant’s entire operations, enforce safety and health laws and, if need be, shut it down. But as the 2012 AFL-CIO report Death on the Job notes, OSHA is so understaffed and underfunded that federal inspectors can inspect each workplace on average of one each 131 years.

There are some 2,200 OSHA inspectors for the country’s 8 million workplaces and 130 million workers. In Texas, OSHA conducted 4,448 inspections in the past fiscal year, a pace that would mean it would visit every workplace in 126 years, according to Death on the Job.

In addition, says AFL-CIO Safety and Health Director Peg Seminario, the West Fertilizer plant had just seven employees and “these kind of workplaces are not typically inspected by OSHA.”

What people don’t understand is how limited resources are to oversee workplace safety and health.

BlueGreen Alliance Executive Director David Foster calls the 35-year gap, since the last inspection at the West Fertilizer plant, “a stunning indictment” of OSHA’s underfunding.

While the Obama administration has increased funding for OSHA after nearly a decade of cuts under the Bush administration, the Republican sequester now in place “means fewer inspectors to monitor facilities like the West Fertilizer Company,” says Keith Wrightson, worker safety and health advocate for Public Citizen.

Small budgets also make it even harder for the agency to issue new safety standards. The agency’s budget is similar to what it was several decades ago, but the size of the economy—and the number and complexity of workplaces to inspect—has grown tremendously.

Tom O’Connor, executive director of the National Council for Occupational Safety and Health, says, “This tragic explosion points to the need for more resources allocated to OSHA.”

With adequate funding for more OSHA inspectors, more potentially dangerous sites— like this fertilizer manufacturing plant—can be inspected and hazards abated.

But while workplace safety advocates have pushed for stronger health and safety standards—including chemical safety standards for facilities such as West Fertilizer, Covert writes:

Even with all of the evidence that the plant fell through a variety of regulatory cracks, an industry-backed bill with ties to the Koch brothers with the support of 11 congressmen would reduce the EPA’s powers to regulate major chemical sites.

For a more detailed look at the regulatory history of the West Fertilizer plant, see this Huffington Post report by Chris Kirkham and Ben Hallman.

This article was originally posted on the AFL-CIO on April 23, 2013. Reprinted with Permission.

About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. He came to the AFL- CIO in 1989 and have written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.

OSHA Declines to Issue Rule Protecting Workers From Heat

Thursday, July 12th, 2012

mike elkAs high temperature records are broken across the United States, health and public safety advocates are calling on the Occupational Safety and Health Administration (OSHA) to finally issue a rule protecting workers from extreme heat. In 1972, the National Institute for Occupational Safety and Health (NIOSH) recommended a heat standard, but OSHA has still failed to implement it. With global warming likely to make heat related deaths more common, public safety advocates say OSAH must act immediately.

“Some farm workers and construction workers work for hours on end and there are no accommodations for rest breaks. This is what commonly leads to heat deaths” says Dr. Sammy Almashat, a researcher with Public Citizen’s Health Research Group. “We are asking for rest breaks in proportion to the temperature outside as well as employers being required to provide workers with a certain amount of water every hour. This does not require some sort of a technological breakthrough. It’s very easy and inexpensive.”

The failure of OSHA to adopt a heat standard has left many workers unprotected. According to Public Citizen, 563 workers have died from heat-related injuries and 46,000 have suffered serious injuries in the last 20 years.

“These deaths are completely preventable with just a few, inexpensive interventions, some of which have already been implemented in several states,” says Dr. Thomas Bernard, who reviewed a proposed NIOSH heat standard back in 1986. “The time is long overdue for a federal heat stress standard that will protect workers from dangerous heat exposure.”

In a response to a petition launched by Public Citizen, United Electrical Workers, and Farmworker Justice calling on OSHA to implement an Emergency Temporary Standard (ETS) for extreme heat, Assistant Secretary of Labor for OSHA David Michaels wrote that “OSHA agrees exposure to extreme heat can lead to death; however workers with adverse health effects from heat exposure experience dehydration, cramps, and exhaustion, and other affects and are able to recover fairly quickly when the appropriate measures are taken.” Michaels then continued:

As you mentioned in your petition, the Morbidity and Mortality Weekly Report (MMWR) stated that the annual rate of heat-related deaths among crop workers from 1992 to 2006 was 0.39 per 100,000 workers. While OSHA acknowledges that these deaths are most likely underreported, and therefore the true mortality rate is likely higher, the mortality rate reported in the MMWR does not exceed those of other hazards OSHA has deemed to be “significant” (e.g. benzene) and therefore, would likely not meet the legal requirement of “grave.”

Michaels then noted that “if OSHA were to determine that a grave danger was present, OSHA must have adequate evidence that an ETS is necessary because no existing OSHA requirements can substantially reduce the grave danger. Additionally, OSHA must show that the ETS would be technologically and economically feasible.”

Almashat says it is fairly easy to implement to prevent heat deaths, noting that the Pentagon has a heat standard in place to prevent heat deaths among soldiers. Almashat also points to a 2008 study by the Washington state Department of Labor and Industries, which showed a net economic benefit for companies in terms of eliminating lost productivity by implementing heat protection rules.

Michaels says that while OSHA is not issuing a rule to force employers to adopt a heat standard it has launched an education and outreach campaign to inform employers of the dangers of extreme heat. But Almashat argues that this isn’t nearly enough.

“Employers aren’t held for accountable for complying with the recommendations of this campaign. There needs to be a standard,” Almashat says. “The federal government isn’t dragging its feet because it’s not feasible or the science isn’t there. This is a case where they are deliberately dragging their feet on a standard in order to placate industry.”

This blog originally appeared in Working In These Times on July 11, 2012. Reprinted with permission.

About the Author: Mike Elk is an In These Times Staff Writer and a regular contributor to the labor blog Working In These Times. He can be reached at [email protected]

When Safety Becomes Voluntary: Workplace Self-Policing Program Under Scrutiny

Wednesday, July 11th, 2012

Michelle ChenWhat’s the value of a worker’s life? According to the calculus of corporate efficiency, it’s often still cheaper to put workers at risk than to spend money to protect them. And the federal government generously rewards those who have perfected this cost-containment strategy in industries where workplace hazards are just part of business as usual.

For years, the federal Occupational Safety and Health Administration (OSHA) has granted many companies a pass on government oversight with the Voluntary Protection Program (VPP). Touting big-name members like Coca Cola and ExxonMobil, the program works like a sort of gold star for employers with good safety records, which OSHA believes are capable of regulating themselves. As In These Times has reported previously, many companies granted this status can basically enjoy years of relief from regular federal evaluation.

To ordinary citizens this may seem like a fox guarding a hen house packed with dynamite, but many employers champion the VPP as a way of “partnering” with government to avoid onerous state oversight. Congress recently reviewed the program at a hearing of the House Subcommittee on Workforce Protections, which examined the VPP in light of recent reports about horrid workplace accidents, along with criticisms that the initiative undermines both labor standards and the government’s role in protecting the public from industrial exploitation.

Rena Steinzor, a University of Maryland law professor with the think tank Center for Progressive Reform, told ITT, “What the voluntary program does, let’s make no mistake about it, is it allows people to self-regulate. Basically, if you have someone who can fill out the paperwork, you’re off the hook.”

Evidently, not even the death of a worker is enough to persuade the government to revoke a company’s privileged status. According to a 2011 report by the Center for Public Integrity’s iWatch News:

Workers at plants billed as the nation’s safest have died in preventable explosions, chemical releases and crane accidents. They have been pulled into machinery or asphyxiated. Investigators, called in because of deaths, have uncovered underlying safety problems — failure to follow recognized safety practices, inadequate inspections and training, lack of proper protective gear, unguarded machinery, improper handling of hazardous chemicals. Yet these companies have rarely faced heavy fines or expulsion from the program. In death cases in which OSHA found at least one violation, VPP companies ultimately paid an average of about $8,000 in fines. And at least 65 percent of sites where a worker has died since 2000 remain in VPP today.

The Reagan-Era program has ballooned in recent years, tripling the number of worksites covered between 2000 and 2008. The ideological foundation of the program reflects a general hostility to safety and environmental regulation under the Bush administration.

Although we’re several generations removed from the workplace atrocities of the early industrial age, workers becoming ill or dying from their jobs remains a routine aspect of working life in the U.S. Even outside of special deals with OSHA like the VPP, a lack of resources for inspections and enforcement means that many companies escape oversight by default.

Keith Wrightson, a Worker Safety and Health Advocate with Public Citizen, told ITT, “VPP takes the OSHA inspector out of the picture.” When protection is “voluntary” on the part of bosses, employees have little reason to volunteer to report a workplace violation if it might get them fired. In general, he said, “OSHA inspections are nil. Why do we want to further dissolve what authority it does have over the workplace?”

From the employer’s standpoint, Wrightson noted, “If there’s fewer injuries on the job then the workers’ comp rates don’t rise. Your health insurance costs do not rise and your liability insurance does not rise.” But in the political debate, he said, “we don’t see those facts at the forefront. … The idea of VPP is a free market, where nobody should regulate, nobody should look, it’s laissez faire, and it’s not good.”

But EHS Today reported that the House committee hearing did at least review new research showing that state workplace monitoring can protect workers and save companies money at the same time:

The study found that within high-hazard industries in California, inspected workplaces reduced their injury claims by 9.4 percent and saved 26 percent on workers’ compensation costs in the 4 years following the inspection, compared to a similar set of uninspected workplaces. On average, inspected firms saved an estimated $355,000 in injury claims and compensation for paid lost work over that period. What’s more, there was no discernible impact on the companies’ profits.

So if profits aren’t hurt by inspections, corporations appear to reject government oversight simply on principle.

Steinzor sees a blatant imbalance in the way the government weighs health and safety needs against the profits of its corporate partners. “I think this is a class issue,” she said. “And it’s shameful that the content and implementation of the nation’s laws on occupational safety and the environment show systematic neglect of working-class people’s lives in heavy industrial jobs, and far more concern for the well-being of yuppies in the exurbs.”

In a system that tends to make the law comply with corporations rather than the other way around, “voluntary protection” seems to do exactly what the phrase implies: to make workers’ rights optional.

This blog originally appeared in Working In These Times on July 10, 2012. Reprinted with permission.

About the author: Michelle Chen work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Colorlines.com. She can be reached at michellechen @ inthesetimes.com.

Your Rights Job Survival The Issues Features Resources About This Blog