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The rise of city-state health & safety laws

Are you ready for the local consequences?

May 1, 2014
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Smoke-free workplaces are the norm across the nation. It’s not because EHS pros used a federal law such as OSHA to convince their employer that smoking will exceed a PEL or violate a fire prevention standard. City and state laws to restrict smoking created the norm.

City and state laws are on the rise because they address modern concerns in months and days; not the years, decades, or forever it takes the feds to act.

The American Industrial Hygiene Association’s (AIHA) Government Affairs Director Aaron K. Trippler advised EHS pros earlier this year to monitor local safety and health legislation. Mold abatement, safe patient handling, and title protection are some of the city and state regulations that might become law in 2014, according to Trippler.

You are encouraged to monitor local legislation because national EHS organizations are not resourced to do this. There are simply too many bills to follow. Delay in updating the 1976 federal TSCA has led one-half of the U.S. states to introduce nearly 150 bills to address “toxic chemical legislation” in 2014.1

Legislation example

Within the past 18 months California, Maryland, New York City, New Jersey, Philadelphia, and West Virginia passed laws to provide additional safety and health protections for pregnant workers. Former New York City Mayor Michael Bloomberg (I) signed such legislation into law on September 13, 2013 — 309 days after the legislation was introduced. New Jersey Governor Chris Christie (R) signed similar legislation into law on January 21, 2014 — 113 days after its introduction. And West Virginia Governor Earl Ray Tomblin (D) signed similar legislation into law on March 3, 2014 – a mere 57 days from start to finish. Employers who violate NYC’s new law for pregnant workers may be fined up to $250,000, may face jail time, and encounter other penalties.

Trigger questions

These bills should trigger questions. Who’s pushing the new laws? Why are the new laws needed? Is your city or state next for a similar law? What is the impact of this law on your workplace? The rationale for these and other questions come from the external context elements found in ANSI/ASSE/ISO 31000 (Z690.2-2011) Risk Management—Principles and Guidelines.2

Do local politicians understand your interests? What’s on the local political legislative agenda? Although collective voices are most often heard, a single voice can still reach an ear.  But questions and preparation for the rise of city and state laws should not be generated ad hoc but developed through an organization’s formal risk management practices.

Resistance to change

In the examples of chemical restrictions, smoke-free workplaces, and reasonable safety and health accommodations for pregnant workers, science was sufficient decades ago for EHS pros to argue change is needed to control these risks. But many employers stood by the mantra that “federal law does not compel us to change our ways.” And EHS pros, for the most part, couldn’t make the sell for improvements without OSHA or other federal law.  

If employers voluntarily and collectively implement best practices, such as implementing smoke-free workplaces, there would be little or no need for local law. But this rarely happens. For example, the latest (2014) data show that annually more than one-quarter million pregnant workers are denied their requests for safety and health accomodations.3  The rise of city and state laws for pregnant workers is in direct response to employer inaction.

Social media and change

The rise in city and state laws is also fueled by the rise of social media. Social media — online connections — readily bring together people of like minds to affect change.  By traditional means, it took the American Society of Safety Engineers 100 years to get 30,000 members. MomsRising.org, developed in the social media era, reached 30,000 members in about three months and now has more than one million members who may be mobilized to sway legislation. MomsRising is among the more than 100 organizations pushing for city and state pregnant worker laws. 

Local disconnect?

Ironically, at a time when EHS pros should band together locally to influence city or state safety and health legislation, they are dispersed and disconnected. The Toledo (Ohio) Chapter of the ASSE no longer exists, even though there are more ASSE members in the region than ever before. Toledo area EHS pros are too busy or whatever to support a local chapter.

Anticipate the possible

The following scenario is hypothetical but possible. The WV example shows that wheels are greased to quickly move pregnant worker bills into law. Marcy Kaptur, born and raised in Toledo, is the longest serving woman in the U.S. House of Representatives.  She represents Ohio’s 9th congressional district that includes the city of Toledo. Rep. Kaptur is a cosponsor to the proposed federal Pregnant Workers Fairness Act that is a model for city and state law. Could Kaptur help persuade Toledo to join the cities of New York and Philadelphia and pass a law to provide additional safety and health protections for pregnant workers?  

Risk management

Formal risk management requires organizations to consider the effect of uncertainty on achieving objectives. This is a proactive process. Possibilities may be further defined into a probability. For example, how likely is the Kaptur example to actually happen? How likely could the scenario happen in your city or state? 

Formal risk management is more than just asking questions. Your organization must have policy and procedure in place to anticipate and treat risk. This article helps demonstrate that the rise in city and state workplace safety and health laws is probable, not just possible.  The examples provided are not inclusive of all safety and health laws to be anticipated.  You need to brainstorm what other laws may be on the horizon.

Beyond OSHA

The major federal laws from OSHA, EPA and MSHA were born in the 1970s. Many areas of these laws are outdated and no longer effective. There is a low probability that these federal laws will be substantially modernized in the future. EHS pros should consider the rise of city and state laws, even those that are not required in your area, as best practices.

The rise of city and state laws should help reverse the trend for local pros to be disengaged from each other. Think global, act local.


References

1. http://www.saferstates.com/states_in_the_lead/current_legislation.html.

2. http://www.asse.org/shoponline/products/EZ690-PKG.php

3. http://www.nationalpartnership.org/research-library/workplace-fairness/pregnancy-discrimination/listening-to-mothers-experiences-of-expecting-and-new-mothers.pdf

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Recent Articles by Dan Markiewicz, MS, CIH, CSP, CHMM

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