Whistleblower Protection
In passing the OSH Act, Congress understood that workers play a crucial role in ensuring that their workplaces are safe, but also recognized that employees would be less likely to participate in safety or health activities, or to report hazardous conditions to their employer or to OSHA if they feared their employer would fire them or otherwise retaliate against them. For that reason, section 11(c) of the OSH Act prohibits discrimination against employees for exercising their rights under the law. In the decades since the passage of the OSH Act, Congress has enacted several other statutes containing whistleblower protection provisions and has given OSHA responsibility for enforcing most of them. This is a strong acknowledgement that workers are this Nation's eyes and ears, identifying and helping to control not only hazards facing workers at jobsites, but also practices that endanger the public's health, safety, or well-being and the fair and effective functioning of our government.
Whistleblowers serve as a check on the government and business, shining a light on illegal, unethical, or dangerous practices that otherwise may go uncorrected. Whether the safety of our food, environment, transportation systems, or workplaces; or the integrity of our financial systems is at issue, whistleblowers help to ensure that the laws that protect the public's safety, health and well-being are fairly executed. OSHA is a small agency with a big role to fill in protecting whistleblowers. We take our responsibility under all 22 whistleblower statutes very seriously, and protecting whistleblowers has been a priority of this administration.
Over the last several years, we have implemented a number of significant structural and programmatic changes to strengthen our whistleblower program. OSHA has established the Whistleblower Protection Program as a separate Directorate, with its own budget; developed an online form so that employees can file complaints electronically; enhanced training; streamlined investigation procedures; and, with additional resources appropriated by Congress, significantly increased staffing. In addition, by updating our Whistleblower Investigations Manual and establishing a Federal Advisory Committee on Whistleblower Protections, we have been able to improve our enforcement efforts, including enhancing the completeness and consistency of our investigations of complaints filed under the anti-retaliation statutes that OSHA administers.
OSHA Initiatives
EO 13650 Actions to Improve Chemical Facility Safety and Security
Late last year, at a DuPont chemical plant in LaPorte, Texas, 4 workers died -- including two brothers -- as a result of a release of highly toxic methyl mercaptan. Unfortunately, chemical facilities continue to experience serious incidents that not only kill and injure workers at these plants, but also threaten the health and safety of those living nearby. Since 2009, at least 28 significant process safety related incidents have occurred, resulting in over 79 fatalities, multiple injuries, and extensive consequences for work places and communities.
A catastrophic failure of a heat exchanger in Geismar, Louisiana in June 2013, resulted in a fire and explosion that killed two workers. And, of course, there was the tragic explosion at the West Fertilizer Company in West, Texas, which killed 15 people in April of 2013 and destroyed surrounding buildings, including a middle school and a nursing home. The West Fertilizer explosion came only three years after the Deepwater Horizon explosion that killed 11 workers and created the biggest environmental catastrophe in our Nation's history.
These tragedies prompted President Obama, on August 1, 2013, to issue Executive Order (EO) 13650 - Improving Chemical Facility Safety and Security, to enhance the safety and security of chemical facilities and to reduce the risks associated with hazardous chemicals to workers and communities. The EO directed the Environmental Protection Agency (EPA), the Department of Labor (DOL), the Department of Homeland Security (DHS), the Department of Justice (DOJ), the Department of Agriculture (USDA), and the Department of Transportation (DOT) to identify ways to improve operational coordination with State, local, tribal, and territorial partners; to enhance Federal agency coordination and information sharing; to modernize policies, regulations, and standards to enhance safety and security in chemical facilities; and to work with stakeholders to identify best practices to reduce safety and security risks in the production and storage of potentially harmful chemicals.
To accomplish goals set by the President, an interagency working group (National Working Group) was established that includes other Federal departments and agencies involved in the oversight of chemical facility safety and security. Recognizing that stakeholders are essential to managing and mitigating the risks of potential chemical facility hazards, the National Working Group initiated a robust stakeholder outreach effort to assist in identifying successes and best practices.
After conducting a thorough analysis of the current operating environment and existing regulatory programs and obtaining stakeholder feedback, the National Working Group took a number of actions to minimize risks and developed a consolidated Federal Action Plan outlining additional actions to further minimize risks. These actions focus on five principles:
- Strengthening community planning and preparedness;
- Enhancing Federal, State, local, and tribal operational coordination;
- Improving data management;
- Modernizing policies and regulations; and
- Incorporating stakeholder feedback and developing best practices.
The National Working Group has relied heavily on stakeholder input and feedback in the development of the Action Plan, and we continue to keep stakeholders involved in its implementation. Altogether, a dozen public listening sessions were held in addition to meetings with scores of stakeholders from industry, labor and environmental organizations since the report was released. In addition, the EO Executive Committee held a public webinar on November 10, 2014, to update the public on our progress.
In addition, OSHA has made significant progress in updating key programs designed to protect workers.
OSHA issued an RFI in November 2013 seeking public input on possible improvements for its Process Safety Management (PSM) standard and, in June 2015, initiated a Small Business Regulatory Flexibility Review Act (SBREFA) panel to get feedback from small businesses.
OSHA issued new policy memoranda, explaining how it will apply the standard to chemicals without concentrations listed in Appendix A, memorializing its existing interpretation of the term Recognized and Generally Accepted Good Engineering Practices or RAGAGEP, and clarifying the definition of retail facilities.
Both OSHA and EPA are considering new requirements in PSM and RMP for the use of safer technology and alternatives. As an interim measure, the agencies issued a joint alert promoting the use of safer technologies and alternatives. This alert includes information on best practices from industry and is the beginning framework for safer technology and alternatives.
Regional Working Groups (RWGs) were established in all ten Federal Regions under the leadership of regional tri-chairs from DHS, EPA, and OSHA. The RWGs are holding regular meetings to foster relationships with regional and local stakeholders and share best practices.
The Working Group has made progress in furthering Ammonium Nitrate safety and security:
EPA, OSHA, and ATF have updated and re-issued the Chemical Advisory on Safe Storage, Handling, and Management of Ammonium Nitrate, which was originally issued in August 2013. It incorporates stakeholder comments and concerns, as well as the latest practices in Ammonium Nitrate safety.
OSHA issued a letter and additional materials to major stakeholders in the fertilizer industry to emphasize current requirements for Ammonium Nitrate storage.
The Fertilizer Safety and Health Partners Alliance was formed between OSHA and the fertilizer industry, emergency response organizations, and other working group agencies to provide guidance and training resources to better protect the health, safety, and security of chemical facility work.
OSHA also issued guidance to Regional Administrators on enforcement of the Explosives and Blasting Agents Standard and is in the process of developing Regional and Local emphasis programs to more effectively enforce standards for the safe storage of ammonium nitrate.
Severe Injury Reporting Program
On January 1st, OSHA changed the way we do business by requiring employers to report -- in addition to all work related fatalities -- every hospitalization, amputation and loss of an eye. Before 2015, employers were only required to report to OSHA work related fatalities or incidents where three or more workers were hospitalized. Often, when we conducted inspections of the worksites involved in these tragic events, we found that they had previous serious injuries and amputations that we had never known about. These injuries were red flags that there were serious hazards in this workplace that needed to be prevented.
In the first 9 months of this new policy, we have already received more than 8,700 reports. We are triaging every call and initiating inspections in about a third -- but we are engaging with every employer. For those employers that we are not inspecting, we expect them to conduct an investigation and let us know what changes they will make to prevent further injuries. Investigating a worksite incident -- a fatality, injury, illness, or close call -- provides employers and workers the opportunity to identify hazards in their operations and shortcomings in their safety and health programs. Most importantly, it enables employers and workers to investigate incidents, and identify and implement the corrective actions necessary to prevent future incidents.
Incident investigations that focus on identifying and correcting root causes, not on finding fault or blame, also improve workplace morale and increase productivity by demonstrating an employer's commitment to a safe and healthful workplace. By establishing a relationship with all employers who report these severe injuries, and by encouraging them to investigate the incidents in which the worker was hurt, I believe we will make a huge difference.
Our field staff is already using data from the Severe Injury Reporting Program to focus their life-saving activities. For example, the employer at a sawmill in Kittanning, PA notified the Pittsburgh area office that an employee's left index finger had been amputated while he was operating a large circular saw. The Area Office conducted an inspection and found that the 52 inch blade of the saw was not guarded, along with a variety of other issues. To abate the cited hazards, the company has agreed to retain a qualified safety consultant to help develop a safety and health program and to train company managers concerning the applicable OSHA standards. Given the remote location of this company, absent the new reporting requirement, OSHA would likely never have known of the hazards at this workplace.
This is just one of the many success stories we've seen so far as a result of the new reporting rules. But the successes haven't been limited to our field work. We've also reacted quickly to new information to target compliance assistance where it is badly needed. For example, we developed a new fact sheet on hazards from food slicers and meat grinders used in grocery stores, restaurants and delis based on information we saw in initial reports from the new requirements. This is an issue we likely would not have seen without the new reporting requirements and now, because we did see it, there is a resource to help employers protect workers from these hazards.
Reducing Workplace Exposure to Hazardous Chemicals
Each year in the United States, tens of thousands of workers die from exposures to hazardous chemicals that they were exposed to years ago. This is why OSHA has launched several initiatives to protect workers from these hazards.
In March 2012 OSHA aligned its Hazard Communication Standard with the Globally Harmonized System of Classification and Labeling. We did this to provide a common, understandable approach to classifying chemicals and communicating hazard information on labels and safety data sheets worldwide.
OSHA has also begun a dialogue with our stakeholders to help prevent work-related illnesses and better protect the health of America's workers. While many workplace chemicals are harmful, only a few are regulated in the workplace, and for most of those, our standards are dangerously out-of-date. The process through which OSHA issues new exposure limits or updates old ones is inefficient, time consuming and unable to address the thousands of chemicals used in industry that need oversight. As a result, we have issued a Request for Information (RFI) to ask stakeholders to help us identify the best approaches to managing chemical hazards and strategies for updating our permissible exposure limits (PELs). We believe this RFI and the dialogue it will initiate are important steps towards protecting the current and future generations of workers who build and sustain our nation's economy.
We know that the most efficient and effective way to protect workers from hazardous chemicals is by replacing them with safer alternatives. Proactive, preventative approaches that drive the elimination of chemical hazards at the source and promote the development and adoption of safer alternatives must be a part of any chemical management strategy. But, in cases where efforts to control chemical hazards do not carefully consider the impact of substitutes, workers may face new or similar hazards. For example, workers in the furniture industry suffered severe neurological damage where 1-bromopropane was used to reduce exposures to methylene chloride.
To address this problem, in 2013, OSHA launched an online toolkit to help employers and workers find ways to eliminate hazardous chemicals, or substitute them with a safer chemical, material, product, or process. The resource includes information, methods, tools, and guidance on using informed substitution in the workplace. Thanks to our safer chemicals toolkit, employers are able to visit our webpage for help. We've also posted annotated PEL tables so employers can voluntarily adopt exposure limits that are more protective than OSHA's PELs.
Protecting Vulnerable Workers
We are also focusing on protecting day laborers and other vulnerable workers in America who work in high-risk industries. Because of language barriers, literacy, lack of training and other challenges, these workers are often hard to reach, and are also at the greatest risk for injury, illness and death on the job. Latino workers are killed and injured on the job often at higher rates than other workers. While the BLS preliminary data shows a decrease in the rate from 2013 to 2014 for these workers, it is still too high. About 15 Latino workers die on the job every week while often doing the hardest and most dangerous jobs in America.
These vulnerable workers are also the least likely to speak up for their rights. Following the groundbreaking National Action Summit for Latino Worker Health and Safety in Houston in April 2010, OSHA has partnered with consultants, community and faith-based groups, unions, employers, and other government agencies to reach out to vulnerable workers with information about their rights and to enhance their ability to use these rights. We have translated hundreds of publications into multiple languages and created a Spanish language home page on OSHA's Web site.
OSHA also reminds employers to comply with requirements that they must present information about workers' rights, safety and health training materials, information and instructions in a language and level that their workers can understand. I issued a directive to OSHA inspectors to check for this during site visits to be sure that employers are complying.
In addition, through the Susan Harwood Training Grants Program, OSHA awards grants to nonprofit organizations, community colleges and business associations to provide training and education to vulnerable, hard-to-reach workers. Through outreach and the Harwood program, OSHA has for years helped workers control hazards in nail and hair salons, many of whom are Asian-American immigrants. These training grants focus on the recognition and control of safety and health hazards in workplaces. And last year our Harwood Grantees trained nearly 106,000 workers and employers -- an all-time yearly high!
Finally, we continue to focus on protecting vulnerable workers in high-risk industries through partnerships with consulates, community and faith-based groups, unions, employers, and other government agencies.
