OSHA's Sharper Teeth

The Obama administration injects new power into the occupational-safety agency as employers find themselves on the defensive. Critics say the new director is a "junk science" advocate.

Wednesday, June 16, 2010
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While critics on both the right and left have taken on the Obama administration for purportedly wobbling on issues ranging from financial regulation to Afghanistan, worker safety seems one area that the new team in Washington has charted a definite course correction from the past eight years.

Late last year, the Senate quickly confirmed David Michaels as the new director of the U.S. Department of Labor's Occupational Safety and Health Administration.

Labor advocates cheered. Some business leaders -- who fear a costly new era of regulation is upon them -- jeered.

Peg Seminario, director of safety and health for the AFL-CIO in Washington, says the Michaels appointment represents an important step forward after eight years of what she terms "neglect, inaction and, in some cases, hostility."

"OSHA is getting back to the job of protecting workers, and the administration has made it clear that it intends to address major safety and health problems," she says.

Michaels came to OSHA from George Washington University, where he was interim chairman of its School of Public Health and Health Services.

President Obama, earlier this year, proposed a $573 million 2011 fiscal-year budget for OSHA, an increase of $14 million over the previous fiscal year. The extra funds would pay for 125 new inspectors and shift 35 compliance officers to enforcement activities.

Yet, in a live Web chat on Feb. 1 to discuss the 2011 budget, U.S. Secretary of Labor Hilda L. Solis proposed significant reductions in the Voluntary Protection Program, despite its accomplishments in facilitating voluntary safety-regulation compliance by employers.

However, a Government Accountability Office report identifying oversight and internal-control problems in the VPP could have played a role in its fate.

"We need to decide whether we will spend our limited resources on supporting those companies that really get it, and who are doing a great job at protecting their employees," she said during the chat. "Or do we spend our scarce resources on companies that disregard workplace safety and allow workers to die in situations that could easily have been prevented?"

During the same Web chat, Michaels said OSHA would work with stakeholders to identify new or alternative funding sources for the VPP.

More funding could bring OSHA's reputation closer to the threshold associated with the Environmental Protection Agency, according to Cynthia Roth, CEO of Syosset, N.Y.-based Ergonomics Technologies Corp.

"When the EPA comes calling, employers, listen. They don't fool around," she says. "While I don't think OSHA will reach that level of strength, I do believe greater enforcement capabilities, new regulations and rulemaking will be an aspect of life going forward for businesses."

Business leaders have expressed concern about the new emphasis on enforcement as opposed to voluntary compliance, embodied by the VPP.

Marc Freedman, director of labor-law policy at the U.S. Chamber of Commerce in Washington, says the administration's increased OSHA enforcement efforts come as no surprise, given Obama's rhetoric as a candidate during the 2008 campaign.

"Our concern is how these people are used, and how knowledgeable and well-trained they are with respect to being able to look at workplaces and understanding what works as to how employers are protecting their employees," says Freedman.

Jeri Kubicki, vice president of human resources for the Washington-based National Association of Manufacturers, takes a harder line. OSHA's new leader, she told a Senate panel, has "portrayed employers as 'manufacturers of doubt' only driven to elude regulation."

Kubicki says workplace-safety performance has steadily improved for more than a decade due to the open relationship between employers and the federal government.

"To continue this trend, the trust between employers and OSHA must not be abandoned," she told the panel.

Erasing Workers' Fears

Before OSHA can make any significant improvements in worker safety, employees themselves have to feel comfortable about reporting safety issues on the job. That, however, isn't the case, at least not right now, according to a survey published late last year by the GAO of more than 1,000 occupational-health practitioners.

More than two-thirds of the respondents said workers feared reporting an injury or illness, according to the survey. In addition, one-third of the practitioners said they were pressured by employers to provide insufficient treatment to workers or to hide or downplay work-related injuries or illnesses. Moreover, half the respondents said the reason for the pressure was so the injury would not be reported to OSHA.

AFL-CIO President Richard Trumka says the report corroborates what union-safety activists and rank-and-file employees have long believed was the truth about employers.

"Employer policies that discourage the reporting of injuries," he says, "not only undermine the completeness and accuracy of workplace-injury data; they [also] prevent injured workers from receiving needed medical care and prevent hazardous conditions that injure workers from being identified and corrected."

The GAO report was requested by two Democratic Senate and House members who are sponsors of the Protecting America's Workers Act, which would give OSHA more tools to fight underreporting of injuries and illnesses by employers.

Roth says companies with higher injury and illness rates face higher workers' compensation costs and often encounter difficulty winning government contracts. "Given such consequences, incentives to cheat are always present, and the GAO found that many employers avoid medical treatments or shop around for doctors who provide diagnoses that avoid recordable events," she says.

Linda Johnson, an employment-practices attorney based in Manchester, N.H., says that, regardless of whether tougher worker protections win approval, employers should be prepared for greater scrutiny this year. She notes that targeted industries include nursing homes, slaughterhouses, foundries, concrete-pipe manufacturing, seafood canning and bottled-water manufacturing.

Companies can and should expect government investigators to review employment records for 2007 and 2008, interviews of management and rank-and-file employees by OSHA officials, and walk-around safety-and-health inspections.

Johnson says an array of media reports and academic studies pin the underreporting problem on a number of reasons, including incentive programs that have workplaces festooned with posters proclaiming the number of days without an injury on the job.

"Though well-intentioned, even popular safety programs, which provide awards for a period of time without recordable injuries, can have the effect of putting pressure on workers not to report their injuries," she says.

Meanwhile, getting a more accurate overall picture of the state of occupational health and safety in the workplace remains a top agency priority, and OSHA has designated the following specific hazards for review:

? Airborne infectious diseases: Healthcare-acquired diseases such as tuberculosis and severe acute respiratory syndrome (SARS) are on the rise this year. Most controls are aimed at patient rather than worker protection, which the agency would like to address.

* Crystalline silica: Inhalation of silica can cause lung disease and silicosis. The agency plans to update existing exposure limits and set new rules to protect employees from such dust.

* Combustible dust: Such material can cause catastrophic explosions such as the 2008 Imperial Sugar Refinery explosion. Currently, the agency does not have a comprehensive standard that addresses this hazard.

* Walking-working surfaces: The agency has proposed new rules covering slip, trip and fall hazards, and will establish requirements for personal-protection systems.

Assessing the Appointment

Not only do the new enforcement efforts frighten OSHA critics such as the Manhattan Institute's Center for Legal Policy, a think tank promoting "market-oriented" solutions to public-policy questions, Michaels' career in and of itself has become a flashpoint in the rhetoric surrounding his nomination.

"This is a guy who has bought into every junk-science claim out there that the plaintiff's bar has embraced over the past decade," says James Copland, director of the Center. "And they are putting him in charge of occupational safety and health."

Michaels' critics, nonetheless, failed to get the Senate to conduct an extensive look into his background. White House spokesman Tommy Vietor termed some of the more extreme charges leveled at the new appointee "ridiculous and false."

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"He is a nationally recognized leader in the efforts to ensure the integrity of the science underpinning public health and environmental regulation," Vietor told FOXNews.

For those trying to get what Copland terms "sound science" into not only the courts but the regulatory arena, the Michaels appointment represents a great step back.

Over the past decade, the new director was the chief architect of an initiative to compensate U.S. Department of Energy nuclear weapons workers who developed cancer or lung disease as a result of their exposure to radiation and other life-threatening hazards.

Michaels also has a long history of working to resolve occupational-safety and health hazards, particularly those related to the chemical industry, Roth says. (Read this Q&A with Michaels.)

She also notes that the new director has been a critic of industry scientists and lobbyists who are urged to dispute the findings of studies on the hazards of toxic materials, secondhand smoke and global warming.

"When manufacturers foot the bill for their own 'watchdogs,' the science can be twisted to cast doubt on its validity," Roth says.

So often the issue of what is "junk" or "sound" science comes down to the opinion of a judge or jury. On this issue, Michaels' critics fear he will help reverse the impact of a 1993 court ruling that allowed trial judges to determine the validity of certain expert testimony without a hearing before a jury.

Michaels has written that the impact of the so-called Daubert ruling has meant an increase in successful motions of summary judgment, most of which have come down against the plaintiffs -- who, as a result, have had a difficult time making their cases heard.

More protracted hearings on the value of expert testimony and evidence will only benefit the trial lawyers, a major source of cash for Democratic politicians, critics of the new appointee charge.

All the sound science in the world will not matter if federal officials do not take the proper actions to enforce the existing rules based on science that everyone agrees on.

Since the creation of OSHA during the Nixon years in 1970, workplace safety has had varying degrees of importance attached to it.

While enforcement picked up late in the Ford administration and during the Carter years, it "went into the toilet" during the first Reagan term, according to Seminario.

A number of horrendous events followed -- including a fatal explosion at a major chemical factory in South Charleston, W.Va. -- and the issue of workplace safety returned to the front burner, particularly with the appointment by Reagan of former Labor Secretary William Brock.

Oddly enough, the first Clinton term, with its emphasis on "Reinventing Government," made workplace safety more of a voluntary effort than in previous years.

But when the Clinton administration began to rethink that policy, Seminario says, it had to deal with the election of the Republican Congress in 1994, which wielded budget powers through, not only the amount of dollars allocated, but legislative riders that prohibited certain enforcement activities.

In its waning days, the Clinton administration released more than 1,600 pages of ergonomic rules. The rules became a bone of contention with lawmakers and were withdrawn by the next administration, but the issue could emerge once again with the Obama administration now in charge and favoring more labor equality and better worker protection.

The George W. Bush administration virtually stopped issuing any new regulations.

On the contrary, that administration put enforcement on a kind of retail level, Seminario says, without any strategic plans of targeting industry hazards or trying to change employer practices.

All that has changed once more with the recent appointment of Michaels at OSHA and Solis at the DOL. The $87 million fine issued late last year against BP Products North America -- the largest fine in the history of OSHA -- indicates the agency means business.

"We are sending a strong message throughout the industry that we will not tolerate the endangerment of workers," says Solis.

See also:

Q&A with David Michaels

Ergonomics: The Next Battleground

Safety-Reporting Disincentives

OSHA Protections Enhanced

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