Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘OSHA’

Number of workplace safety inspectors fall under Trump

Tuesday, June 18th, 2019

Rebecca RaineyDespite assurances from Labor Secretary Alexander Acosta that he will boost the number of OSHA compliance officers this fiscal year, new data shows the number of inspectors has declined.

According to statistics that POLITICO obtained through the Freedom of Information Act, the number of compliance safety and health officers tasked with conducting workplace inspections at the agency had fallen in April to 870. That’s down from the 875 safety inspectors that OSHA reported in January (in response to a FOIA request from the left-leaning National Employment Law Project).

In addition, data provided to POLITICO from OSHA reveals that since January the agency has lost two area directors responsible for training and supervising safety and health inspectors.

During the same month that OSHA recorded the 7-person decline, Acosta testified before a House appropriations panel that OSHA “expects to have a significant increase in inspectors in FY 2019.” The fiscal year runs from Oct 1 through September 30.

At that April hearing, Acosta noted that OSHA hired 76 new inspectors in FY 2018.

“These numbers are stunning,” said Debbie Berkowitz, a former OSHA policy adviser now with NELP. “The agency now has the lowest number of inspectors in its entire history—it will now take over 160 years for the agency to inspect every workplace under its jurisdiction just once. This does not bode well for workers.”

The number of OSHA inspectors fluctuated throughout the Obama administration, rising to 1,059 inspectors from 2009 to 2011, then declining to 943 from 2011 to 2015, then rising again in 2016 to 952 inspectors.

Democrats and safety advocates blame the decline under Trump on retirements and on the federal hiring freeze ordered in early 2017

“This is a sign of erosion in OSHA’s ability to inspect workplaces,” Peg Seminario, director of health and safety at the AFL-CIO, told POLITICO. “Acosta has committed to strong enforcement, but their ability to do so is being hobbled and crippled by losing experienced staff.”

In total, OSHA’s compliance safety and health officers reached 949 in April, but that figure also includes 79 area directors, who do not conduct workplace inspections. According to January numbers obtained by advocates, the agency had 81 area directors on board at the time.

The Labor Department’s budget request for OSHA for fiscal year 2020 included more than $3.7 million to hire 30 additional compliance officers

Asked to comment on the decline in safety inspectors, a DOL spokesperson said that OSHA “has taken several steps to increase its federal enforcement staffing levels.” In 2017, the spokesperson said, Acosta granted OSHA approval to fill all its funded inspector positions.

“OSHA has also begun recruiting for a larger number of positions than available vacancies,” the spokesperson said, “to ensure there is a continuous pool of [compliance safety health officer] applicants for selection when future vacancies occur.”

Despite the decline in inspectors, the number of OSHA inspections rose in fiscal years 2017 and 2018 to above 32,000. But a March NELP report said that in both fiscal years the agency cut back on the number of more complex, resource-intensive, and “high-impact” safety and health inspections.

In making this calculation, NELP used the same metric created by OSHA under President Barack Obama. In 2016, OSHA stopped measuring its performance by the number of total inspections and instead started counting by weighted “enforcement units” to better assess the quantity of enforcement activity. Then-OSHA chief David Michaels concluded that a raw inspection count was misleading because one-day inspections were equated with more complicated five-month inspections.

According to NELP’s March report, in FY 2018 OSHA enforcement dropped by 352 enforcement units, to 41,478.

This article was originally published at Politico on June 17, 2019. Reprinted with permission.

About the Author: Rebecca Rainey is an employment and immigration reporter with POLITICO Pro and the author of the Morning Shift newsletter.

Prior to joining POLITICO in August 2018, Rainey covered the Occupational Safety and Health administration and regulatory reform on Capitol Hill. Her work has been published by The Washington Post and the Associated Press, among other outlets.

Rainey holds a bachelor’s degree from the Philip Merrill College of Journalism at the University of Maryland.

She was born and raised on the eastern shore of Maryland and grew up 30 minutes from the beach. She loves to camp, hike and be by the water whenever she can.

Workplace safety enforcement plummets under Trump ... but fatality investigations rise

Thursday, March 14th, 2019

The Occupational Safety and Health Administration did not have enough workplace safety inspectors before Donald Trump arrived on the scene, and as with just about everything else, it’s gotten worse in Trump’s two-plus years in office. The number of inspectors has fallen to a record low in the history of the agency, and a new analysis by the National Employment Law Project shows how bad things have gotten: The number of complicated and high-penalty investigations OSHA does has fallen—but at the same time, fatality investigations have risen.

The Trump administration’s story is that total investigations have risen. But that’s not helpful if what’s happening is that inspectors are being pushed to take on quick and easy cases rather than digging into the complicated or difficult ones. That’s just what’s happening, NELP’s Debbie Berkowitz, herself a former OSHA official, writes. “For example, when inspectors go onto a construction site, they can inspect multiple subcontractors all at once, but count each one as a separate inspection. They can get through these sites in a few hours, and count four to five inspections.” At the same time, inspections of concerns like musculoskeletal hazards, worker exposure to dangerous chemicals, explosion risks, and heat exposure have all dropped dramatically.

OSHA is failing to conduct inspections of workplaces that have reported amputations—imagine that you lose a body part on the job and the government doesn’t even come to check out if your boss is running a safe shop. In at least two cases, poultry plants haven’t been inspected even after reporting two amputations or injuries requiring hospitalization in the course of just a few months.

But the big red flag is this: In 2017 there were 837 workplaces inspected because of a work-related death or a catastrophe of more than three workers hospitalized. In 2018, the number rose to 929. The Trump administration is letting workplace safety inspector jobs go empty, it’s focusing on hasty inspections while the number of complicated investigations of serious risks drops, it’s failing to investigate amputations … but the serious thing that is rising is fatality investigations. That is very scary news for America’s workers.

This blog was originally published at Daily Kos on March 14, 2019. Reprinted with permission. 

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

Caring for Our Caregivers: Workplace Violence Hearing Highlights Job-Related Assaults for Health Care and Social Service Workers

Friday, March 1st, 2019

Workplace violence is a serious and growing problem for working people in the United States: It causes more than 450 homicides and 28,000 serious injuries each year. Workplace homicide now is responsible for more workplace deaths than equipment, fires and explosions. Two of every three workplace violence injuries are suffered by women.

Health care and social service workers are at greatest risk of violence on the job because of their direct contact with patients and clients. They are five times as likely to suffer a workplace violence injury as workers in other occupations.

Violence against health care and social service workers is foreseeable and preventable but the Trump administration has refused to act. That is why Rep. Joe Courtney (Conn.) introduced legislation last week that would require the federal Occupational Safety and Health Administration (OSHA) to issue a standard to protect these workers. The standard would reduce violence by requiring employers to develop workplace violence prevention programs that identify and control hazards, improve reporting and training, evaluate procedures and strengthen whistlebower protections for those who speak up, which lead to safer staffing levels, improved lighting and better surveillance systems.

Today, the U.S. House of Representatives Committee on Education and Labor, Subcommittee on Workforce Protections, held a hearing to highlight this severe and growing problem and the need for an OSHA standard to protect working people. Patt, an AFT member from Wisconsin, testified about her traumatic experience of assault as a registered nurse. She and her colleagues had tried to speak to management and press for improvements, but their voices were not heard. Then she was attacked by a teenage patient with a history of aggression at a county mental health facility. He kicked her in the throat, collapsing her trachea, requiring intubation and surgery. She suffers severe post-traumatic stress disorder and can no longer work in her dream job as a nurse. It was not a random event, but a predictable scenario that could have been prevented with a clear plan and better-trained staff.

Watch the hearing.

Here are other union members’ experiences of violence on the job that could have been prevented with an enforceable OSHA standard:

Helene: An AFT member and psychiatric nurse in Connecticut for 16 years in an acute care hospital who attempted to hand a patient his pain medication when he punched her in her jaw, knocking her to the floor and breaking her pelvis. Helene was unable to return to work for six and a half months, had to go through rehabilitation and physical therapy, and suffers from post-traumatic stress disorder. This patient had a history of violence, including previously attacking a social worker, but there was no system in place to alert her.

Brandy: A National Nurses United (NNU) member and registered nurse in California for 18 years in general pediatrics who was assigned to a 14-year-old patient with a diagnosis of aggressive behavior. When Brandy entered the patient’s room, the patient had his mother pressed against the closet door with his hands around her neck. Brandy called for security and additional staff assistance. They were able to safely remove the patient’s mother, but the patient threw a chair at Brandy, who was trapped between a wall and a bed. Brandy suffers from tendonitis in her right elbow, which makes it difficult to do simple everyday tasks such as opening jars, typing and hanging bags of fluids at work. Appropriate violence-prevention controls include ensuring that large furniture and other items that can be used as weapons are affixed to the floor in rooms with aggressive patients.

Eric: An AFSCME member and security counselor at a Minnesota hospital who has administered treatment to the mentally ill for nearly a decade. Eric was assigned to monitor a highly assaultive patient who continually attacked his fellow patients. The patient then turned his assaultive behavior on Eric and punched him in the right eye, causing him to instantly lose sight in the impacted eye. Eric managed to restrain the patient until his co-workers arrived to assist. Eric was rushed to the emergency room via ambulance where they discovered he had a blow-out fracture of his orbital bone and a popped sinus. He received 17 stitches, and his eye socket has never fully recovered. The hospital did not have a comprehensive workplace violence prevention program that would have prevented this.

John: A United Steelworkers (USW) member and certified nursing assistant in California for 18 years who tried to change a male veteran’s wet bed when the patient became agitated and attacked John, breaking his arm. He was out of work for four weeks. John didn’t know the patient was prone to violence. At his facility, workplace violence comes from patients, visitors and other employees. There is at least one incident every week, ranging from slapping to breaking arms or punching. After John’s incident, the employer began requiring a note on the patients’ charts when they are prone to agitation or violence. Sometime later, the employer also began using red blankets on the beds to denote a combative patient so all employees would know when they interacted with the patient.

This blog was originally published by the AFL-CIO on February 27, 2019. Reprinted with permission. 

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

Protecting America’s Workers Act Introduced. Would Strengthen OSHA and Workers’ Rights

Friday, February 8th, 2019

A new and improved Protecting America’s Workers Act (PAWA) has been introduced into the House of Representatives by Congressman Joe Courtney (D-CT). Similar versions of this bill has been introduced every year for over a decade.  The bill number is H.R.1074 and a copy of it can soon be found here. (In the meantime, here is a PDF and a Section-by-Section analysis.)

As with past PAWA bills, this version, which has 27 co-sponsors, extends OSHA coverage to public sector employees in those states where they’re not currently covered (as well as federal employees), strengthens anti-retaliation protections for workers, requires the abatement of hazards during contests by employers and toughens criminal penalties.

In addition, this year’s bill also includes provisions to codify OSHA’s severe injury and electronic injury reporting requirements (including the detailed reporting by large employers recently withdrawn by OSHA). It reverses the revocation of the “Volks Rule” which was repealed by Congress and the President under the Congressional Review Act at the beginning of the Trump administration.

PAWA significantly expands workers’ rights to participate in improving health and safety in their workplaces, and enhances the ability of OSHA to effectively enforce safe working conditions. 

The bill significantly expands workers’ rights to participate in improving health and safety in their workplaces, and enhances the ability of OSHA to effectively enforce safe working conditions.

Courtney introduced the bill on the anniversary of the 2010 Kleen Energy power plant explosion that killed 5 workers in Middletown, Connecticut.  According to Courtney,

Today, on the ninth anniversary of the accident, it’s appropriate that my colleagues and I reintroduce this legislation to make critical, decades-overdue updates to OSHA. Every day, 14 employees go to work and never come home to their families due to fatal on-the-job injuries. The OSHAct made great strides in protecting American workers, but since it was enacted the American workplace has modernized and diversified. The law should keep up with the realities that workers face on the job today. Our bill is focused on updates and compliance, not on petty, punitive measures against employers, and will ensure that today’s workforce is empowered and protected by our nation’s chief worker safety law.

What’s In PAWA?

If passed, PAWA 2019 would:

  • Expand OSHA coverage to millions of state and local government employees in the 24 states where they’re not currently covered and broaden OSHA coverage to include federal employees.   
  • Authorize felony penalties against employers who knowingly commit OSHA violations that result in death or serious bodily injury and extend such penalties to corporate officers and directors. Under the current law, criminal penalties for the willful death of a worker are only misdemeanors. In addition, knowing violations which cause or contribute to the death of a worker would have a maximum fine of $250,000 for individuals and $500,000 for organizations, or a 10-year prison term, or both.  Death of a worker would not be the only violation that could send an employer to jail. Knowing violations which cause “serious bodily harm” are subject to maximum fine of $250,000 for individuals and $500,000 for organizations or a 5-year prison term, or both.
  • Codify the Susan Harwood Training Grant Program to provide grant funding for training and education programs for workers and employers. President Trump has attempted to eliminate the program in his last two budgets.
  • Reinstate the “Volks Rule,” making it an employer’s ongoing obligation to maintain accurate records of work-related illness and injuries. This reverses a Congressional Review Act resolution that eliminated OSHA’s authority to issue citations for recordkeeping violations that occurred within the 5 year record retention period and undermined OSHA’s ability to enforce against employers who violate requirements to record workplace injuries and illnesses.
  • Improve whistleblower protections for workers who call attention to unsafe working conditions, including extending the time allowed to file a whistleblower complaint from 30 days to 180 days.   
  • Expand workers’ right to contest citations and penalties. An employee or employee representative may challenge the severity of a citation (e.g. willful, serious, repeated, etc.) and/or the size of the proposed penalty. Currently employees and their representatives are only allowed to contest the length of the abatement period.
  • Clarify that an “authorized employee representative” under the OSHAct does not just refer to an employee of the employer, or a union representative, but rather “an individual or organization designated by one or more employees of the employer.” OSHA had clarified this change by interpretation during the Obama administration, but that interpretation was withdrawn under the Trump administration.
  • Ensure worker safety is protected in a timely manner by mandating that employers correct hazardous conditions while a citation is being contested.  Currently, the employer does not have to correct a violation if the employer challenges the citation, leaving workers in harm’s way.   Currently, OSHA is often forced to significantly reduce or eliminate penalties or downgrade citations in order to secure timely abatement of hazards. Employers would have a right to seek a temporary stay of OSHA’s abatement order through an expedited proceeding before a Review Commission Administrative Law Judge.
  • Improve protections for employees currently covered by other agencies, such as the FAA and employees of the Department of Energy’s nuclear facilities by enabling OSHA to determine the adequacy of those agencies’ workplace safety and health programs.  Currently the agency only only has to state
  • Update obsolete consensus standards within two years that were incorporated by reference when OSHA was first enacted in 1970.   There are approximately 200 consensus standards that cover general industry and maritime that were initially adopted in the early 1970s and for which lengthy notice and comment rulemaking was not required.
  • Deter high gravity violations by providing authority for increased civil monetary penalties for willful and serious violations that cause death or serious bodily injury.   
  • Require employers to report injury and illness records to OSHA to provide the agency with data to effectively target unsafe workplaces.   This would codify OSHA’s Severe Injury Reporting rule (which now exists as a regulation), as well as the “electronic recordkeeping” regulation that OSHA partially rolled back last week. 
  • Require OSHA to investigate all cases of death and serious injuries that occur within a place of employment.   
  • Establish rights for families of workers who were killed on the job by giving families the right to meet with OSHA investigators, receive copies of citations, and to have an opportunity to make a statement before any settlement negotiations.   
  • Improve protections for workers in state plans by allowing federal OSHA a more expedited procedure to take over enforcement in those states where the plan fails to meet minimum requirements needed to protect workers’ safety and health. GAO would be required to conduct a study to determine whether OSHA oversight of state plans, and state plan funding is adequate.
This article was originally published at Confined Space on February 8, 2019. 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).

Undermining Worker Safety — Despite Laws and Shutdowns

Monday, February 4th, 2019

Regulatory doo doo — to use the technical term — seems to be where the Department of Labor is finding itself these days.  And Democrats in Congress along with the Department of Labor’s Inspector General are not amused.

At the request of Senator Elizabeth Warren (D-MA) and Congresspersons Bobby Scott (D-VA), Mark Takano (D-CA), Rosa DeLauro (D-CT) and Lucille Roybal-Allard (D-CA), DOL Inspector General Scott Dahl has agreed to Audit the Department of Labor’s regulator process. The main focus will be on the Wage and Hour Division’s proposal to allow 16- and 17-year-olds to operate power-driven patient lifts in nursing homes without supervision, as well as OSHA’s recent decision to roll back parts of the agency’s electronic recordkeeping regulation.

Regulations (and OSHA standards) are important. Congress passes laws like the Occupational Safety and Health Act or the Mine Safety and Health Act or the Clean Water Act, which give agencies a general mandate to protect workers and the environment. But regulations put meat on the bones of the laws. The OSHAct gives employers the legal responsibility to maintain safe workplaces and gived OSHA the authority to set standards and cite employers who violate those standard. And it’s the regulatory process that enables OSHA to issue those specific standards — like those protecting workers from falls, amputations, silica or asbestos exposure.

Rolling back “burdensome” regulations (along with cutting taxes and appointing more conservative federal judges) are the main reasons that otherwise more-or-less sane Republicans continue to support an ignorant, racist, malignant narcissist in the White House.

The business community and Republicans in Congress generally hate regulations, which is why you almost never hear them mention the word “regulation” without the words “job-killing” preceding it. In fact, rolling back “burdensome” regulations (along with cutting taxes and appointing more conservative federal judges) are the main reasons that otherwise more-or-less sane Republicans continue to support an ignorant, racist, malignant narcissist in the White House.

And there’s a process for issuing regulations and standards.  All government regulatory activity falls under the Administrative Procedure Act which ensures that agencies follow some basic steps when they issue new regulations or change existing regulations and lays out the basis for regulatory actions in the public record. New regulations or regulatory changes may not be “arbitrary, capricious, an abuse of discretion” and must be based on evidence on the record. The Occupational Safety and Health Act has many additional rules for issuing OSHA standards.  Regulations that were not developed (or rolled back) according to proper administrative procedure can be struck down by the courts.

In addition, the Data Quality Act requires the Office of Management and Budget (OMB) to issue government-wide guidelines that “provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies.”

The legislators’ letter asked the Labor Department’s Inspector General (OIG) to investigate whether DOL had deviated from agency regulatory and data quality requirements when it issued the patient lift proposal. According to Deborah Berkowitz at the National Employment Law Project

In order to support this proposal, the Labor Department cited a ‘survey’ of Massachusetts vocational programs that purportedly demonstrated that the current policy ‘restricts’ young teens from being hired to work in nursing homes. Although the Department has ignored repeated requests from Congress and advocates to provide the survey for public review and comment, NELP has obtained a copy.

It became immediately clear why the Department wouldn’t produce the document. This seven-year-old survey, conducted using Survey Monkey, compiled responses from a scant 22 vocational programs in Massachusetts. Half the respondents did not even know what the policy was in the first instance.

The bottom line is that in this administration, when it comes to undermining worker safety and health, neither shutdowns, nor furloughs, nor well-established federal laws governing regulation can stop or even slow the priorities of the business community.

And as Suzy Khimm at NBC News points out, the child labor proposal is not the only area in which DOL is having problems:

The Labor Department is facing legal challenges over other deregulatory actions affecting workers. Last week, the department undid an Obama-era regulation requiring certain employers to submit detailed reports of workplace injuries electronically, arguing that it risked violating workers’ privacy. Last year, the department made it easier for small businesses and self-employed people to buy health insurance that does not comply with the Affordable Care Act. Both changes have spurred lawsuits alleging that officials failed to follow legally required procedures for rule-making.

Dahl is already investigating the Labor Department’s handling of a proposal to allow restaurant managers and owners to take workers’ tips and place them in a tip-sharing pool that includes bosses. Bloomberg Law reported last year that the administration hid its own projection that the change would allow management to skim $640 million in gratuities. (The administration later backed off the change.)

Meanwhile, the White House Office of Information and Regulatory Affairs (OIRA) has come under criticism not only for how agencies regulate, but when the regulate. As we’ve noted several times before, OSHA — and apparently the White House — were in such a hurry to roll back OSHA’s electronic recordkeeping rule that they managed to rush it out right in the middle of the government shutdown.  As House Education and Labor Committee Chair Bobby Scott said in a statement

“It is notable that despite the many important issues being neglected during this partial government shutdown, the administration found time to finalize a rule that shields employers from accountability for the health and safety of their employees. President Trump pledged to defend the American worker, but this is yet another decision that violates that promise.”

OIRA decided that it was allowed to move regulatory actions forward during the shutdown as long as the regulatory actions came from a funded agency (like the Department of Labor).  Some find that interpretation rather dubious. Quoted in Government Executive, Sam Berger, an attorney who worked for OMB during the 2013 shutdown now with the Center for American Progress,

pointed to the shutdown procedure standard being used in the Federal Register, as published in a bulletin by the National Archives and Records Administration. Under the Jan. 14 Justice Department guidance, he said in an email to Government Executive, “funded agencies [must show] delaying publication until the end of the [shutdown] would prevent or significantly damage the execution of funded functions at the agency.”

For OIRA, he said, the standard “is the same for any part of government that isn’t funded, but that works with funded agencies. If the rule is excepted (for example, necessary to protect life and property) then OIRA can bring staff on to review,” he added, arguing that OIRA can’t justify bringing back furloughed employees to process the OSHA rule. If the agency is funded (as is the Labor Department), “then OIRA can only bring staff on if not moving forward with the rule during the shutdown would prevent or undermine the funded function.”

The bottom line is that in this administration, when it comes to undermining worker safety and health, neither shutdowns, nor furloughs, nor well-established federal laws governing regulation can stop or even slow the priorities of the business community.

This blog was originally published at Confined Space on February 1, 2019. Reprinted with permission. 
About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and I spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

OSHA Announces Rollback of Recordkeeping Requirements

Wednesday, January 30th, 2019

In its first completed rollback of a previously issued regulation in the Trump administration*, the Occupational Safety and Health Administration today announced its final recordkeeping regulation that eliminates the requirement that certain employers send in to OSHA detailed information about injuries and illnesses that employers already collect.  The Office of Information and Regulatory Affairs announced that it had rushed to clear the rule last week. The full 104 page text of the new rule and the preamble can be found here.

The main excuse OSHA uses for the rollback is “to protect worker privacy.” Ignoring the fact that employers were not required to send any confidential information to OSHA in the first place, the agency’s press release argues that

By preventing routine government collection of information that may be quite sensitive, including descriptions of workers’ injuries and body parts affected, OSHA is avoiding the risk that such information might be publicly disclosed under the Freedom of Information Act (FOIA). This rule will better protect personally identifiable information or data that could be re-identified with a particular worker by removing the requirement for covered employers to submit their information from Forms 300 and 301.

The new rule does not affect the current requirement that employer send in to OSHA the summary of injuries and illnesses (OSHA Form 300A), although the agency makes clear that they do not intend to release the summary information to the public for at least 4 years because they allege that the data is not subject to the Freedom of Information Act which would normally require public disclosure. OSHA’s reason is that “disclosure of 300A data through FOIA may jeopardize OSHA’s enforcement efforts by enabling employers to identify industry trends and anticipate the inspection of their particular workplaces.” [emphasis added]

This is simply the business community’s attempt to ensure that the public have as little information as possible about injuries and illnesses — and why they happen — in American workplaces.

Regulatory experts have a highly technical term for such explanations: “lame.”

First, an employer’s ability to anticipate an inspection is actually a good thing because it may encourage the employer to fix unsafe conditions. Second, in previous enforcement programs using similar data, OSHA actually warns high risk employers that they are on a focused inspection list, and encourages them to use OSHA’s compliance assistance resources to eliminate unsafe conditions before they are inspected.  In other words, public disclosure of such information is actually a feature of this program, not a bug.

When this regulation was initially issued under the Obama administration, OSHA intended not just to make the information available to interested parties, but to post it on the agency’s website so that potential workers would be able to judge the relative safety of their employers, and employers could use the information to benchmark their safety record against similar employers.

OSHA received 1880 comments on the rollback proposal which was rushed through OSHA and OIRA to ensure its completion before a possibly unfavorable court decision.

Will the Roll-back Regulation Stand Up in Court?

Corks are undoubtedly popping at the Chamber of Commerce this morning, although they wanted OSHA to repeal the entire regulation, including collection of the 300A summary and the language prohibiting employers from retaliating against workers for reporting injuries and illnesses.

Their celebration may be short lived, however. Just as night follows day, lawsuits will follow this announcement.  And statistically, a lawsuit is likely to be successful in this administration. The New York Times today published an article today detailing how the Trump administration has chronically ignored the Administrative Procedure Act which governs agency rulemaking. The article notes that:

An analysis by the Institute for Policy Integrity at New York University School of Law shows that more than 90 percent of court challenges to major Trump deregulatory actions have been successful so far. By the institute’s count, 30 big rules have been challenged, and the courts have found for the litigants 28 times…In a typical administration, the government wins on such challenges around 70 percent of the time, said Richard Revesz, a law professor at N.Y.U. who specializes in environmental law. “This is truly aberrational,” he said.

Information is Power

The reasoning used by OSHA seems similar to the weak reasoning used in the agency’s proposal. (You can read my analysis of the proposal here.)

But in short, what we have here is the business community’s continuing effort to ensure that the public has as little information as possible about workplace injuries and illnesses — and why they happen — in American workplaces.  Information is power. And the more power that the Trump administration and its business supporters can keep from workers and the public, the better.

This blog was originally published at Confined Space on January 24, 2019. 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).

2018: The Workplace Safety and Health Year in Review

Thursday, January 3rd, 2019

As we sit here mired in yet another pointless government shutdown stranding tens of thousand of workers without paychecks, we pause to reflect over the past year in workplace safety and health. The madness in Washington DC continues, and while we can’t make any guarantees for the White House or the Senate, things are at least looking up in the House of Representatives.

Meanwhile, the indefatigable Confined Space team (of one) has posted almost 250 times over the past year, talking about the carnage in American workplaces, but also the victories of unions, activists and dedicated government officials. I can’t honestly say I did it ALL by myself. I was aided by the many of you who sent me articles and story ideas that I never would have noted, and those of you who give me the inspiration to go on when I’d really rather be binge-watching some some addictive Netflix series, reading a book or riding my bike. (Actually, I manage to do enough of that as well.)

The real story, of course, continues to be the more than five thousand workers who go to work and never come home, the tens of thousands who die each year from occupational diseases like black lung, silica-related disease and work-related cancers, and the millions of workers who are seriously injured every year in preventable incidents.  The struggle continues as we hope that the lessons of 2018 will help make 2019 a better one for this nation’s working people. 

  1. A New and Improved Congress (or at least the House): The long awaited Blue Wave hit the House of Representatives full force last November, bringing with it real oversight hearings, better budgets and legislation: Donald Trump — along with the Department of Labor and OSHA — don’t know what’s about to hit them come the new Democratically controlled congress and its ability to exercise its oversight function to ensure that Labor Department agencies actually work to fulfill the mandate that Congress has given them.  In a symbolic move, the House has already changed the committee name back to the Committee on Education and Labor, instead of the rather anodyne in impotent “workforce.” But real work is on deck. Workplace safety and health hearings are already being planned, as well as legislation to move improve worker protections. While it’s unlikely that any pro-worker legislation will pass the Senate or be signed by the President, we can expect new ideas and new energy: Rumor has it that a record number of new Democratic House members want to be on the Education and Labor Committee. Something to look forward to.
  2. A Headless Agency: By the end of January, OSHA will move into its third year without an Assistant Secretary — a new record in the 48-year history of the job-protection agency. The confirmation of Trump nominee Scott Mugno remains mired down in a fight between HELP Committee Ranking Member Patty Murray (D-WA) and Republicans who don’t want to confirm Democratic nominees for the National Labor Relations Board (NLRB) or the Equal Employment Opportunity Commission (EEOC.) The lack of an Assistant Secretary hits particularly hard as other OSHA veterans like Region 8 Administrator Greg Baxter and long-time Director of Enforcement Tom Galassi also retire.  Meanwhile, Deputy Assistant Secretary Loren Sweatt continues to labor on, almost alone in the once hyper-active Assistant Secretary’s office — no doubt looking forward to testifying at OSHA oversight hearings this year.
  3. Inspectors down, enforcement units down, penalties down: The number of OSHA inspectors has hit an all-time low according to data compiled by Bloomberg Environment Reporter Bruce Rolfsen in November. “The agency ended fiscal 2018 with 753 inspectors, compared to 860 at end of fiscal 2014, the personnel data, obtained through a Freedom of Information Act request, show.” And that means fewer serious injuries being investigated.  And last June, The National Employment Law Project (NELP) issued a report showing that worksite enforcement activity by the Occupational Safety and Health Administration is declining under the Trump administration. Secretary of Labor Alex Acosta likes to boast that OSHA conducted slightly more inspections in the last two fiscal years than they did in the last year of the Obama administration, but NELP points out that in FY 2017 OSHA changed the way it counts inspections. Instead of just counting the number of inspections conducted, OSHA moved to counting Enforcement Units. And those numbers under Acosta don’t look quite as good as they did under Obama. Things also don’t look too good for workers in at least one state plan state, Kentucky, which suggests that OSHA’s oversight over state plans (which run almost half the country’s OSHA programs) may be weakening as well.
  4. Return of Black Lung: After almost being eradicated in the late 1990s, black lung is back, with a vengeance. Epidemiologists at the National Institute for Occupational Safety and Health say they’ve identified the largest cluster of advanced black lung disease ever reported, according to an NPR story by Howard Berkes last January. The cause is not just coal dust, but also silica exposure, caused by cutting through more quartz rock as the coal seams get smaller.  Berkes recently filled out the story alleging that the failure of regulatory agencies to understand what was happening and respond are largely to blame for the new epidemic. Meanwhile, making things worse, the state of Kentucky is killing the messenger by no longer allowing radiologists to diagnose black lung. Only pulmonologists will be allowed to review black lung cases, but there are only six pulmonologists in Kentucky that have the federal certification to read black lung X-rays and four of them routinely are hired by coal companies or their insurers.
  5. Brett Kavanaugh: Republicans confirmed a Supreme Court justice who, in addition to his questionable behavior around women, displayed shockingly little knowledge of the Occupational Safety and Health Act, and even less understanding of workers’ struggle to survive in the workplace. After a Orca (aka “Killer Whale”) dismembered and drowned a SeaWorld trainer, Kavanaugh dissented in a court case challenging the resulting OSHA citation. Kavanaugh wrote that OSHA had paternalistically interfered in a worker’s right to risk his or her life in a hazardous workplace, that OSHA had violated its long-standing precedent not to get involved in sports or entertainment, that the agency had no authority to regulate in the sports or entertainment industries and that Congress — and only Congress — could give OSHA that authority. While none of this was true, Kavanaugh nevertheless doubled down on these assertions during his Senate confirmation hearing. Kavanaugh’s opinion related to other workers’ rights issues were not much better.  Nevertheless, today he sits on the Supreme Court.
  6. Regulatory Rollback: OSHA is struggling valiantly to roll back regulations that protect workers and slow down those under way, to fulfill the visions of Donald Trump, Republicans in Congress, and Corporate America. Happily, the curse of OSHA — how impossibly long it takes to issue any single health and safety standard — has become a blessing for workers because it takes almost as long to repeal a standard as it takes to issue a new one.  Nevertheless, OSHA is in the process of attempting to weaken beryllium protections for construction and maritime workers, and striving to roll back a major section of the “electronic recordkeeping” regulation.The good news is that the courts not only upheld OSHA’s silica standard, but also told the agency to add more worker protections or at least explain its decision not to.

    While the road to roll back regulations is long and difficult, the agency’s chance of stopping any significant new workers protections from being finalized is much better. Standards to protect workers from infectious diseases and chemical plant hazards languish on the agency’s “long-term agenda,” while other standards are unlikely to see the light of day anytime in the near future because of Trump’s “one-in, two-out” regulatory budget. 

    Other agencies, such as the Department of Agriculture, also contribute to increase hazards for workers by allowing poultry processing facilities to increase line speeds. And EPA is close to repealing Obama era chemical plant safety protections, and the Department of Labor’s Wage and Hour division is in the process of allowing 16-year-olds to operate potentially hazardous patient lifts.  Bad news not only to workers, but to residents living near chemical plants — and granny in the nursing home.

  7. Methylene Chloride:  The Obama administration had proposed to ban the use of Methylene Chloride due to the deaths of numerous workers and citizens who weren’t aware of the highly hazardous properties of the solvent in enclosed spaces.

    Obama’s EPA, under former EPA Administrator Scott Pruitt, agreed with chemical manufacturers, and decided that a ban wasn’t a very good job. Obviously, if consumers and workers couldn’t read between the lines of the ineffective warnings on the containers, they deserved to die.  After some hard questioning at Congressional hearing, and meeting with family members of the victims of methylene chloride, Pruitt reversed himself and sent the ban to the White House for review. Although the ban has not yet emerged from the dark, dank dungeons of the White House, family members and other organizations like the Natural Resources Defense Council, the Environmental Defense Fund Green Chemistry and Commerce Councils, and Safer Chemicals, Healthy Families, aren’t waiting around. They have succeeded in pressuring retailers like Lowes, Home Depot, WalMart, Sherwin Williams, Home Hardware and True Value to stop selling the product. Organizing and citizen action works, even in Trump times.
  8. The Fate of the Labor Movement: A strong labor movement is good for workers and good for workplace safety. This year has seen ups and downs for the fate of American labor movement.  On the down side, in June, the Supreme Court handed down its Janus decision fulfilling the dreams of corporate America in its quest to weaken not just public employee unions, but the labor movement in general. But public employee unions are not going gentle into that good night. They are fighting back, convincing their members that union membership is the best bargain they’ll find.  And, as labor reporter Steve Greenhouse describes, 2018 saw “a startling surge of strikes in both the private and public sectors” — tens of thousands of teachers in West Virginia, Arizona, Colorado, Kentucky, and North Carolina went on strike and hotel workers struck in Chicago, Boston, Detroit, Honolulu, and San Francisco. And “15,000 patient-care workers, including radiology technicians, respiratory therapists, and pharmacy workers, held a three-day strike against the University of California’s medical centers in Los Angeles, San Francisco, San Diego, Irvine, and Davis. An additional 24,000 union members, including truck drivers, gardeners, and cooks, struck in sympathy.” Even 20,000 Google workers walked out to protest how the company handled sexual harassment accusations against top managers.

    The other bad union news was the elimination of the health and safety offices in the Service Employees International Union and the American Federation of Teachers, continuing the general reduction of health and safety staff still working in American labor unions — not a good thing for the health and safety of American workers, organized or unorganized. 
  9. Journalism: American workers continue to suffer and die in obscurity and the agencies tasked to protect them remain seriously underfunded and legally handicapped. The only hope for many of these workers lies with the excellent investigative pieces published by this country’s dwindling corps of investigative journalists, especially those who focus on labor and health & safety issues. Longtime labor Charleston Gazette-Mail labor reporter Ken Ward received a McArthur Genius Award for his reporting about labor and environmental issues in West Virginia. Ward is teaming up with ProPublica for more hard-hitting pieces in the future.  Retiring National Public Radio reporter Howard Berkes has produced two powerful investigative pieces on the return of black lung disease among the nation’s coal miners. (Here and here.) He will be missed. Veteran investigative reporter Jim Morris at the Center for Public Integrity continues his excellent work, most recently with a story on the deaths of oil field workers and problems at Kentucky OSHAJamie Satterfield at the Knoxville News Sentinel published a hard-hitting piece on the health problems suffered by workers who cleaned up the massive coal-ash spill at the Tennessee Valley Authority Kingston Fossil Fuel Power Plant. 

    You can listen to an interview with Satterfield hereAntonia Juhasz of Pacific Standard about the workers working and dying on the Dakota Access Pipeline and how difficult it is for OSHA to enforce safe working conditions.   Will Evans of Reveal and the Center for Investigative Reporting has focused relentlessly on electric car maker Tesla and documented how the company put style and speed over safety, was hiding injuries and ignoring the concerns of its own safety professionals.  Eli Wolfe of Fair Warning wrote a devastating piece about worker deaths on small farms and how Congress prohibits OSHA from investigating incidents on farms that comprise about 93 percent of U.S. farms with outside employees, employing more than 1.2 million workers. ProPublica’s Kara Feldman penned an investigative piece into the death of Mouctar Diallo, age 21, a Guinean immigrant crushed to death in 2017 by a 40 ton garbage truck, and the plight of New York’s unorganized and mostly immigrant garbage collectors. Chemical and Engineering News reporter Jeff Johnson keeps us up-to-date on goings-on at the Chemical Safety Board here and here. And Kartikay Mehrotra, Peter Waldman and Jonathan Levin of Bloomberg News have written a long piece on how the growing threat of deportation is causing immigrant workers endure abuses in jobs Americans don’t want. 

    And I just want to give a shout-out to some of my favorite labor/OSH/environment reporters:  Labor reporter Steve Greenhouse who continues his eloquent defense of workers even (or especially) after his retirement from the New York Times.  And then there’s Juliette Eilperin and the team at the Washington Post, David Kay Johnston who follows worker issues at DC ReportSuzy Khimm at NBC, Mike Elk of Payday Report, Wooty Sixel at the Houston Chronicle, and . And honorable mention of those who labor for labor at various news bureaus: Rebecca Rainey who has graduated from Inside OSHA to heading up the team at Politico’s Morning Shift. Rebecca’s replacement at Inside OSHA, Ariana Figueroa, and, of course the Bloomberg labor/OSHA team: Josh Eidelson, Sam Pearson, Bruce Rolfson, Peter Waldman.And while they’re not exactly journalists, this is probably a good place to recognize those academics and public interest people (some of whom are former colleagues) who are continuing the battle for worker justice by providing the research and perspective that go into many of the above pieces. My old OSHA colleagues David Michaels, now at George Washington University and Debbie Berkowitz, now working at the National Employment Law Project, both of whom write prolifically in defense of workers’ right to a safe workplace. And, of course, Sharon Block, Executive Director, Labor and Worklife Program at Harvard Law School who writes frequently in OnLabor (along with many colleagues), Shanna Devine at Public CitizenKatie Tracy of the Center for Progressive Reform and former Labor Deputy Secretary, rising pundit and my favorite Twitter contributor Chris Lu.

    And finally, while it’s not exactly great journalism, my appearance on MSNBC last January marked the longest cable television coverage of OSHA issues all year.

  10. The Bottomless Swamp: This year happily saw the resignation of two of the Trump administration’s leading swamp monsters: Scott Pruitt and Ryan Zinke — as well as the resignation and firing of a record number of other high administration officials either because they could no longer look themselves in the mirror in the morning, or because Trump tired of whatever residual residue of integrity they had left. Are things better now. Not so’s you’d notice. 

    As New York Times reporter Eric Lipton tweeted, “As of Thursday, DOD will be run by a former senior Boeing executive. EPA is run by a former coal lobbyist. HHS is run by a former pharmaceutical lobbyist. And Interior will be run by a former oil-industry lobbyist. Welcome to 2019.”  Meanwhile, even the Mr. Clean of the Trump Administration, Labor Secretary Alex Acosta had a bit of a bumpy road in 2018 as the Miami Herald detailed how he gave Palm Beach multimillionaire sex abuser Jeffrey Epstein a legal break when Acosta was Miami’s top federal prosecutor. What will this mean for the comparatively moderate Acosta? Who knows? But even if he survives as Labor Secretary, his chance of ever seeing a coveted federal judicial appointment seems all but vanished.  Oh well, we could have worse Labor Secretaries.

This article was originally published at Confined Space on January 3, 2019. 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).

Mugno or not to Mugno: The Senate Must Decide

Tuesday, December 11th, 2018

As the sun sets on the 115th Congress and the mid-point of this term of the Trump administration, the sun also seems to be setting on any chance of seeing an Assistant Secretary for OSHA in the foreseeable future.

Or maybe not….

You may recall that former FedEx Ground safety director and Chamber of Commerce favorite Scott Mugno was nominated by President Trump in October 2017, has survived a Senate confirmation hearing and has been approved by the Senate Health, Education, Labor and Pension (HELP) committee (twice) on party-line votes. But Mugno’s nomination has never come to a final vote on the floor of the Senate.

Politico’s Morning Shift reminded us last week that the nomination of Mugno, as well as the nominations of Cheryl Stanton for the agency’s Wage and Hour Division, William Beach at the Bureau of Labor Statistics, and Gordon Hartogensis with the Pension Benefit Guaranty Corporation continue to be mired in a fight over the confirmation of two Democratic favorites: Mark Gaston Pearce to be reconfirmed for a seat on the National Labor Relations Board, and Chai Feldblum to be reconfirmed for a seat on the Equal Employment Opportunity Commission. (There are two other DOL nominees out there as well: John Pallasch for assistant secretary for employment and training was cleared by the Senate Committee last week, and Bryan Jarrett for assistant secretary for policy has not yet had a hearing. )

The business community (e.g. Chamber of Commerce and others) and their Republican cohorts in the Senate hate, Hate, HATE the idea of confirming Pearce and Feldblum more than they love the idea of having someone head the other labor agencies. The Chamber opposes Pearce because he “engineered some of the most harmful decisions and regulations in the Board’s history.”  And even though he was only on the Board from 2010 to 2018, he somehow managed to reverse “more than 4,550 years of precedent,” causing King Tut to roll over in his sarcophagus. According to Bloomberg Law, the Republicans fear that Pearce will slow down their efforts to roll back worker protections that were strengthened under Obama. But their real worry is that if Trump is defeated in 2020, Pearce would be the likely candidate to become NLRB Chair — with the downfall of Western Civilization shortly to follow.

Chai Feldblum served as EEOC chair throughout the Obama administration and has been renominated by Trump.  Her main sin is being an “open” lesbian and gay rights activist which is more important than the fact that she is a graduate of Harvard Law, clerked for Supreme Court Justice Harry Blackmun, and is a Georgetown Law School professor.  Utah Senator Mike Lee is particularly incensed with Feldblum’s nomination, calling her a “threat to religious liberty and the institution of marriage.”

Senator Patty Murray, ranking member of the HELP committee reemphasized last week that Democrats would continue to block the Labor Department nominees until the Senate confirms Pearce and Feldblum.

Why did Trump renominate these candidates who threaten the American way of life?

Because the party controlled by the President gets three appointees to these Boards, while the minority party gets two. Traditionally, the parties get to put up their own candidates who are then nominated by the President. In other words, they’re traditionally a package. Technically, the Democrats can’t block the DOL nominees because the Republicans eliminated their ability to require 60 votes, but Democrats can force Senate Leader Mitch McConnell to consider the confirmation of each candidate separately (instead of as a package), which would take up an enormous amount of scarce Senate floor time that McConnell would rather use to confirm Trump’s judges and higher level nominees. If the nominees aren’t confirmed in the next couple of weeks before this session of Congress ends, the entire nomination process starts all over again.

So what will happen? Will the dam break next week? Rumors of high level talks between the Democrats, McConnell and the White House have been flying, but if I had a nickel for every time a deal was reported to be imminent…

This blog was originally published at Confined Space on December 6, 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).

New Bill Seeks to Protect Health Care and Social Service Workers from Workplace Violence

Monday, November 19th, 2018

Workplace violence is a serious and growing problem for health care and social service workers. Nurses, emergency room doctors, social workers, psychiatric facility aides, and other health care and social service workers frequently face violence that leads to serious, life-altering injuries, loss of productivity and death. In 2016, working people petitioned the Occupational Safety and Health Administration for a workplace violence standard and, in 2017, OSHA granted that petition; yet there has been no action by the Trump administration to develop a national standard to protect workers from violence.

Some key facts about workplace violence:

  • It is responsible for more than 850 worker deaths and 28,000 serious injuries each year and is on the rise.
  • One of every six workplace deaths each year are from workplace violence.
  • It is now the second leading cause of death on the job.
  • Health care and social service workers are at greatest risk: They are nearly five times more likely than other workers to suffer a workplace violence injury.
  • Last year, workplace homicides doubled for health care and social service workers.
  • Two of every three workplace violence events are suffered by women.
  • Workplace violence is foreseeable and preventable.

Today, Reps. Joe Courtney (Conn.) and Bobby Scott (Va.) introduced legislation aimed at protecting health care and social service workers from workplace violence. In a letter supporting the legislation, Courtney said:

To address these rising rates of violence, I am introducing the Workplace Violence Prevention for Health Care and Social Service Workers Act. This legislation will require the Occupational Health and Safety Administration (OSHA) to issue a workplace violence prevention standard requiring employers in the health care and social service sectors to develop and implement a plan to protect their employees from workplace violence. These plans will be tailored to the specific workplace and employee population, but may include training on de-escalation techniques, personal alarm devices, surveillance and monitoring systems, or other strategies identified by the employers and employees to keep workers safe. While OSHA has already issued voluntary guidance to employers on how to prevent violence in these workplaces, data from [the Bureau of Labor Statistics] as well as personal testimony from workers about continuing violence shows that voluntary guidance is not sufficient. An enforceable standard is required to prevent the types of violence that are prevalent in too many of our hospitals, nursing homes and social service settings.

This blog was originally published by the AFL-CIO on November 19, 2018. Reprinted with permission. 

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist. Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars

The Other Victims of California’s Fires: Workers Inhaling Toxic Fumes

Wednesday, November 14th, 2018

With the death toll now standing at 42 and with some 7,200 structures destroyed, officials are now calling the wildfire in Paradise, CA (dubbed the “Camp Fire”) the deadliest and most destructive in California’s recent history. Two other massive fires—dubbed the Hill Fire and Woolsey Fire are simultaneously scorching Southern California.

As frontline firefighters—including many prison laborers—continue to battle the blaze while healthcare providers work around the clock treating fire victims, millions of other workers far away from the inferno are feeling a secondary impact: toxic smoke.

In the San Francisco Bay Area, over 160 miles away from the Camp Fire, air quality dramatically declined almost immediately after the fires broke out. Over the past week, AirNow, a government website reporting real-time air quality data has shown the Bay Area hovering between 150-200 on the federal Air Quality Index (AQI), surpassing 200 (or “very unhealthy” levels) in parts of the Bay. The higher the AQI value, the more polluted the skies are and the more concern there is for public health.

This week, the Bay Area also saw the second highest amount of fine particulate matter in the air ever recorded. This substance is not only made up of smoke from charred forests, but could contain everything that gets incinerated when residences go up in flames: cars, fuel, batteries, light bulbs, cleaning products, plastics, upholstery and more.

Public health officials have been advising residents of affected areas to stay indoors to avoid the unhealthy air that can lead to headaches, dizziness, shortness of breath, coughing, wheezing, eye irritation and worse.

However, for many workers who work outdoors for a living, that’s easier said than done.

While many white collar workers don protective masks to commute to office jobs where recirculated air conditioning provides some measure of protection from the smoky skies, hundreds of thousands of farmworkers, day laborers, landscapers, construction workers, public works employees and others have no choice but to work through the harmful haze—at great detriment to their health.

Many of these workers hail from neighborhoods and worksites already facing increased levels of toxins. Compounding the situation, these are also often the very same workers who are least protected by worker health and safety regulations.

“It’s been horrible,” says Kywanna Reed, who has been working 10-hour days outside this week as a traffic controller. “I wake up with headaches. I go to sleep with headaches. I have a headache right now, and a bag of headache medicine in the truck. My whole respiratory system is messed up. My coworker had a nosebleed and went home sick.”

Reed said her employer, American Construction & Supply Inc., did not provide masks to employees.

“Employers should pass out masks and you could choose to wear them or not,” says Reed, “But right now, they’re not doing anything.”

Other workers, however, say their employers are providing masks while verbally encouraging workers to protect themselves.

Cesar Fragoso, who works as a landscaper for Planting Justice, said the non-profit nursery in East Oakland passed out masks to employees.

“I work outside every day, weeding and transplanting plants. I can feel the smoke in my nose. My eyes started itching. I’ve been coughing. The masks help, but it’s tragic that we have to go through this in order for people to acknowledge what we are doing to the environment,” says Fragoso.

A 2017 news release from the California Division of Occupational Safety and Health (Cal/OSHA) advises that “Employers with operations exposed to wildfire smoke must consider taking appropriate measures as part of their Injury and Illness Prevention Program under Title 8 section 3203 of the California Code of Regulations and as required under section 5141 (Control of Harmful Exposure to Employees).”

Those measures include “using a filtered ventilation system in indoor work areas,” “limiting the time that employees work outdoors” and “providing workers with respiratory protective equipment.”

However, as worker advocates note, holding employers accountable for taking such measures can be a challenge.

“Even though people we know from Cal/OSHA have made a tremendous effort, their presence in the field is so limited that it is really hard for them to do any kind of enforcement or implementation,” says Dinorah Barton-Antonio of the Labor and Occupational Health Program at UC Berkeley.

Other workers say they wouldn’t use a mask even it was provided, citing the already highly dangerous nature of their industries. Sixty-three-year-old carpenter Ruel Bernard smelled the smoke and started sneezing this week as he hung siding at a residential construction site, but chose not to wear a mask.

“Us older generation of construction workers, our bodies have been toxic waste dumps from the get-go. I started working in New York in 1971, breaking down plastic walls, climbing around in attics filled with insulation and dust. Every day I hurt myself at work, so at some point you’re just like ‘Fuck it,’” explains Bernard. “I know that’s a dinosaur, macho attitude. But that attitude helps us survive in this industry.”

The idea that the smoke from the wildfires is just one ingredient in an already toxic soup of working conditions resonates in farmworker communities.

Lucas Zucker is the Policy Director at Central Coast United for a Sustainable Economy (CAUSE), which works with immigrant farmworkers in Ventura and Santa Barbara Counties. During last summer’s wildfires, CAUSE distributed N95 masks to workers in the field.

“Farm work is already dangerous on the day-to-day. This area has some of the highest use of toxic pesticides,” notes Zucker. “But then with the wildfires, the ag industry pushes to harvest their crop quickly to prevent damage to crops like strawberries and avocados. So we actually see an increase in production, with obvious implications for human health. Whereas a white collar worker might be able to take time off and have that paid, for farmworkers who get paid piece rate it’s hard for them to take that time off if they’re already living paycheck to paycheck.”

While much of the conversation in the Bay Area about protection from the smoke has focused on masks, some workers point to having power on the job—whether that be in the form of a union contract or worker ownership—as one of the largest factors in ensuring worker health and safety.

“We have a union here. It helps us get through things like this because I feel like we have some camaraderie and I can take steps to take care of myself without worrying that I’ll lose my job,” says Daniel DeBolt, who works as a deckhand on the ferry boats that shuttle tourists and commuters from Oakland to San Francisco and who has been experiencing headaches and fatigue all week.

Worker power on the job was also key for Dante Ortiz from Root Volume, a worker-owned landscaping cooperative.

“In 20 years of building gardens in wildfire-prone areas like Colorado and California, I’d never had a day where we had to pull out because of air quality, but that happened last Friday. We were doing heavy excavation, trenching for retaining walls. It’s hard work. You’re breathing heavily, which is the worst thing you could be doing,” says Ortiz. “So we all decided it was time to get out of there. Being in a worker cooperative gave us the agency to make that decision for ourselves.”

However, other workers like day laborers don’t have stable employment or consistent employers.

According to Gabriela Galicia, the Executive Director of the Street Level Health Project in Oakland, CA, “Workers stand on the corner for up to eight hours a day waiting for work. Many corners are already near toxic fumes, and now workers are out in the smoke too.”

Galicia notes that many workers are already thinking about heading north in search of work rebuilding fire-devastated communities, which carries its own risks to workers’ rights and their health. Worker exploitation and wage theft has marred reconstruction in post-disaster recovery efforts across the country.

“We’ve seen too many natural disasters where day laborers have been taken advantage of,” says Galicia. “They are human beings. They’re helping to rebuild. Treat them with dignity.”

As human-driven climate change intensifies and more of California becomes engulfed in flames, workers wonder whether toiling in toxic air is becoming “the new normal”—or if there can be a just transition to a new way of relating to land and labor.

CAUSE’s Lucas Zucker explains, “Ultimately, we need state or federal disaster aid that can fill in the gaps for workers exposed to disaster or toxic conditions so that they don’t have to make that horrible choice between putting food on their family’s table or being exposed to toxic conditions.”

This article was originally published at In These Times on November 13, 2018. Reprinted with permission. 

About the Author: Brooke Anderson is an Oakland, California-based organizer and photojournalist. She has spent 20 years building movements for social, economic, racial and ecological justice. She is a proud union member of the Pacific Media Workers Guild, CWA 39521, AFL-CIO.
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