Early indicators of OSHA's future focus (5/28)
As background, White described the administration’s top priorities in its first 110 days: the economy; health care, energy and education reform; and passage of the 2010 budget. “Everything else follows,” said White.
Secretary of Labor Hilda Solis has a “strong history of support for labor cause,” said White. He quoted Solis laying down this marker: “Let me be clear: the Department is back in the enforcement business. It’s time for a new direction in the Department.”
OSHA’s leadership philosophy and direction is less direct, more murky at this point, said White.
Early leading candidates for the OSHA chief job, former NIOSH Director Dr. John Howard and the AFL-CIO’s top safety and health official, Peg Seminario, are out of the running. Jordan Barab, a long-time Washington hand with experience on Capitol Hill, OSHA during the Clinton years, and directing the AFSCME union’s safety and health efforts for 16 years, has been acting OSHA boss since April 13.
In the latest twist, several sources say George Washington University professor and epidemiologist Dr. David Michaels has emerged as the leading candidate. Michaels has government safety and health experience, serving in the Clinton administration as the Department of Energy’s chief safety officer for nuclear weapons facilities.
OSHA’s EMERGING FOCUS White pointed to these early indicators of OSHA’s focus in the coming years:
- A new injury/illness recordkeeping National Emphasis Program was under consideration even before the new leadership came to power;
- Accelerated action on a few standards, tempered by a wariness about over-aggressive standards-setting in the current economic environment;
- A forthcoming General Accountability Office (GAO) voluntary program value study;
- A Department of Labor Inspector General report criticizing OSHA’s Enhanced Enforcement Program;
- A proposed OSHA budget increased by $27 million (plus an as yet undesignated portion of the DOL $80m stimulus money).
FEARLESS FORECASTS White proceeded to step out on the old proverbial limb to make these three fearless forecasts:
- A shift in emphasis from voluntary programs to more aggressive enforcement;
- A focus on promulgating new and revised safety and health standards;
- Legislative reform efforts that give OSHA more “teeth” and a broader reach.
More specifically, White expects initiatives on injury and illness recordkeeping because labor is skeptical of the accuracy of records based on recent studies and mistrust of “incentives.” Also, look for increased scrutiny of employer OSHA 300 logs, medical and first aid reports and workers’ compensation records, with the probability of significant fines at some point for under-reporting.
There will be a shift away from the Bush administration’s emphasis on voluntary programs (VPP, Partnerships, Alliances). There are questions about the cost-effectiveness of VPP in terms of devoting scarce OSHA resources to the program. A shift of resources to standards/ enforcement is already underway.
Look for several new or revised standards, according to White, including Cranes and Derricks, Combustible Dust, Diacatyl, Silica, and Hazard Communication to incorporate the Globally Harmonized System for Classification and Labeling of Chemicals (GHS).
Questions remain, with the agency currently sending mixed signals, about whether ergonomics will be an early standards focus. And how will the new OSHA team approach the seemingly impossible task (due to legalities and lack of any consensus) of updating Permissible Exposure Limits (PELs)?
Promoting, incentivizing and regulating a greater focus on reducing risk in the workplace through implementation of safety and health management systems (perhaps the ANSI Z10 model) could be the focus of administrative, regulatory and perhaps legislative initiatives, according to White.
CONGRESS JUMPS IN White also offered details on the major OSHA bill now before Congress, the Protecting America’s Workers Act of 2009:
- Require inspections of incidents involving 2 or more hospitalizations;
- Increase willful/repeat violation penalty maximum from $70,000 to $120,000; allowing up to $250,000 for fatality;
- Increase serious/fatality violation penalty maximum from $7,000 to $12,000; allowing up to $50,000 for fatality;
- Increase criminal penalties for willful violations causing death, with maximum 10 years in prison;
- Expanding criminal violations to include willfuls resulting in “serious bodily injury;”
- Require the abatement of an alleged serious violation during the pendency of a legal challenge to the citation;
- Explicitly permit criminal sanctions against “any responsible corporate officer;”
- Require OSHA’s recordkeeping rules to prohibit employer practices that “discourage the reporting” of injuries and illnesses.
Ergonomics, a top priority for organized labor, could see Congressional action. The Clinton ergo standard was nullified in 2001 under Congressional Review Act (CRA). Under CRA, OSHA cannot reissue a rule in “substantially the same form.” But the administration could use a provision in CRA that allows Congress to enact specific legislation authorizing reissue of the original rule, said White.
DOES OSHA MATTER? Why bother worrying about OSHA after almost 40 years of policy vacillation and bruising controversies since the agency was created in 1970? White painted a picture of the current mood regarding OSHA beyond the Washington beltway:
- OSHA is out of touch, ineffective, irrelevant;
- It’s good that we’ve stopped “doing OSHA,” i.e, moved beyond compliance with OSHA rules;
- OSHA standards are “hopelessly” outdated, system is “broken;”
- OSHA is too focused on enforcement – counting inspections and citations, with too much emphasis in the field on “gotcha..”
White proceeded to offer these counter arguments:
- An agency as out of philosophical and operational alignment with the rest of world as OSHA ill-serves U.S. business;
- As safety and health professionals, we have an interest in reorienting OSHA to better serve worker safety and health;
- As taxpayers, we should expect our $500 million (admittedly a relative pittance!) to be more effectively spent.