Protecting Workers in Oil and Gas Extraction
Hazardous working conditions are taking the lives of a growing number of workers employed in oil and gas extraction. The oil and gas extraction industry has experienced a fatality rate of several times the average of all U.S. industry over the past 20 years. In addition, the BLS 2014 preliminary data show that the number of fatalities in the oil and gas extraction industry increased 27 percent from the previous year. OSHA is utilizing all its tools to assist employers and workers to address hazards in the oil and gas extraction industry, including enforcement and compliance assistance. OSHA has also expanded its Severe Violators Enforcement Program to the upstream oil and gas industry.
Enforcement of the oil and gas industry presents many unique challenges. It is difficult to identify when these worksites are active because they are transitory, time-limited operations, often in very remote locations. And because the oil and gas industry is exempt from many OSHA standards, we must go through the added legal burden of issuing General Duty Clause citations when we identify clearly unsafe working conditions because these operations are often not covered by specific OSHA standards. General Duty Clause citations are more resource-intensive than citations issued for specific standards. And finally, the multi- or joint-employer structure of the industry presents many legal challenges to traditional enforcement.
Because of the difficulties in enforcement in this area, OSHA has conducted an unprecedented amount of compliance assistance in the oil and gas extraction industry. Our compliance assistance tools include work with alliances, the VPP program, and production of safety and health materials and training for employers and workers.
The National Service, Transmission, Exploration & Production Safety (STEPS) Network is an all-volunteer oil and gas industry organization which was founded in 2003 in South Texas by OSHA and industry, in an attempt to reduce injuries and fatalities in that region. STEPS has continued to grow, currently including twenty-two independent regional networks serving twenty producing states. OSHA has signed formal alliances with eight of the networks and, in December 2014, signed a formal alliance with the National STEPS Network and the National Institute for Occupational Safety and Health (NIOSH).
OSHA has taken a variety of compliance assistance actions. For instance, our free on-site consultation program has conducted 260 visits to oil and gas sites over the last four years. We helped develop an Emerging Issues Focus Group for U.S. Onshore Oil and Gas Extraction and a biannual OSHA Oil and Gas Safety and Health Conference. We have supported stand-downs reaching more than 70,000 workers and identifying over 20,000 hazards since the summer of 2013. In addition to the stand-downs, conferences and consultations, we've produced web resources, publications, hazard alerts about silica hazards and tank gauging hazards, and training materials, including assisting in the development of training for workers in the exploration and production industry. Together with NIOSH, OSHA has identified tank gauging, a previously unrecognized cause of death in oil production. The STEPS Network has now posted alarms and guidance that is available to industry.
Clearly, however, as the latest BLS numbers underscore, these unprecedented compliance assistance efforts have not been sufficient, and we are actively looking at ways to increase our effectiveness in preventing injuries and illnesses in the oil and gas industry.
Changing Structure of Work
Another challenge OSHA must face is with the changing structure of employment relationships. OSHA has long addressed situations where more than one employer has a role in preventing injury and illness and we will continue to shape our work to address the realities of the 21st Century workplace. This is not a major challenge in the oil and gas industry only, as mentioned previously -- it's a challenge in almost every industry.
For example, just a few decades ago, temporary work was relatively rare and concentrated in white-collar professions. But in recent years temporary workers are now commonplace in virtually every type of workplace and their numbers have grown dramatically. According to the American Staffing Association, there are almost 3 million temporary workers in the nation's workforce today -- many doing highly hazardous construction and manufacturing jobs.
Unless properly managed, these structural employment changes greatly increase risks of injuries and illnesses among all the workers in these workplaces. We have found that too often employers do not provide temporary workers with the same protections or training as permanent employees. Similarly, many times employers of different workers at the same worksite fail to communicate about the presence of hazards, therefore endangering some or all the workers at the site.
The results can be tragic, as in the case of Lawrence Daquan "Day" Davis, a 21-year-old temporary worker who died his first day on the job. He was crushed to death by a palletizer machine at a Bacardi Bottling facility in August 2012. The company had failed to train temporary employees on utilizing locks and tags to prevent the accidental start-up of machines as well as failing to ensure its own employees utilized procedures to lock or tag out machines.
Our Temporary Worker Initiative has made the hazards facing temporary workers a national concern. We continue to insist that host employers and staffing agencies both protect temporary workers on the job, and provide them the same protections as all other workers.
When OSHA investigates a workplace, we consider different work arrangements and if there are multiple employers that are responsible for protecting workers exposed to hazards. Agency inspectors determine, in every inspection, whether every worker on the site has received the safety training and protections required by law for the job and, if there is joint employment, which employer is responsible, or depending on the circumstances, whether more than one employer should be held accountable.
OSHA has begun working with the American Staffing Association and employers that use staffing agencies, to promote best practices for ensuring that temporary workers are protected from job hazards. Together we are making sure that both host employers and temporary agencies understand their responsibilities for protecting workers. And we are making sure that all workers in the country understand that they have the right to safe workplaces, and that all workers, including temporary workers, have the right to contact OSHA if they face workplace hazards.
Safety and Health Campaigns
Through nationwide safety and health campaigns, we are trying to ensure that all workers understand the workplace hazards they face and know their rights.
Heat Illness Prevention
Every year, dozens of workers die due to working in the heat and thousands become ill. In order to raise awareness about these preventable tragedies we are now in our fifth year of the Campaign to Prevent Heat Illness in Workers. In 2011, we launched a partnership with the National Oceanic and Atmospheric Administration (NOAA) and the National Weather Service to educate employers and workers on the dangers of working in the heat. As a result, important worker safety information is now included in all National Weather Service extreme heat alerts and on NOAA's Heat Watch Page.
We also worked with the National Weather Service to develop a smartphone heat safety app that allows users to calculate risk levels in their area code and learn the protective measures needed to prevent heat illness. More than 250,000 people have downloaded the app so far.
Through these efforts, we have reached over 11 million workers and employees and distributed over 800,000 print resources in over 4,150 national and local informational and training sessions.
Falls continue to be the leading cause of death in construction -- they account for roughly one third of all construction deaths. In 2012, we joined with stakeholders in the industry and labor, and with NIOSH in an unprecedented nationwide outreach effort to prevent these fatal falls.
Since then, OSHA has conducted more than 1,000 workshops, presentations, site visits, radio and TV interviews, and discussions with foreign consulates; produced new low-literacy fact sheets, posters, QuickCards, wallet cards, videos and other resources - many in multiple languages; and produced 10 new fall-prevention videos in English and Spanish, which have been viewed more than 32,000 times on YouTube.
We've worked with employers, workers, industry groups, and civic and faith-based organizations to host city-wide safety stand-downs across the country, where workers and employers voluntarily stop for part of the workday to focus on recognizing hazards and particularly on preventing falls. This year's stand down showed how effective these campaigns can be with thousands of employers and millions of workers participating.
Protecting Healthcare Workers
In hospitals and other healthcare facilities, workers are hurt at rates even higher than in construction and manufacturing. OSHA is responding to the alarmingly high rate of worker injuries and illnesses in hospitals and other healthcare settings by helping hospitals and nursing homes recognize the close link between patient safety and worker safety -- we know that managing for worker safety will protect patients, too.
We are also responding to the danger of workplace violence, which disproportionately threatens workers in the healthcare industry. OSHA released updated guidance for preventing workplace violence in healthcare settings and established procedures for investigating these incidents. As we move forward we will continue to hold employers accountable for developing and implementing policies to prevent assaults on healthcare workers.
Potential Legislative Initiatives to Improve Worker Protection
We cannot fully address the challenges facing OSHA in the 21st Century alone - we need your help as well. Congress passed the OSH Act in 1970 and while it has helped improve working conditions for American workers over the past 44 years, OSHA has identified areas where legislative updates to modernize the Act could have a significant impact in further improving protections for workers.
Civil and Criminal Penalties
The most serious obstacle to effective OSHA enforcement of the law is the very low level of civil penalties allowed under our law, as well as our weak criminal sanctions. The deterrent effects of these penalties are determined by both the magnitude and the likelihood of penalties. However, OSHA's current penalties are not strong enough to provide adequate incentives.
This is apparent when compared to penalties in other statutes. For example, the Environmental Protection Agency can impose a penalty of $270,000 for violations of the Clean Air Act and a penalty of $1 million for attempting to tamper with a public water system. Yet, the maximum civil penalty OSHA may impose when a hard-working man or woman is killed on the job -- even when the death is caused by a willful violation of an OSHA requirement -- is $70,000.
Similarly, the criminal provisions in the OSH Act are weaker than those in virtually every other safety and health and environmental law. The Clean Air Act, the Clean Water Act, and the Resource Conservation and Recovery Act all provide for criminal prosecution for knowing violations of the law, and for knowing endangerment that places a person in imminent danger of death or serious bodily harm, with penalties of up to 15 years in jail. There is no prerequisite in these laws for a death or serious injury to occur. Yet, under the OSH Act, criminal penalties are limited to those cases where a willful violation of an OSHA standard results in the death of a worker and to cases of false statements or misrepresentations. The maximum period of incarceration upon conviction for a violation that costs a worker's life is six months in jail, making these crimes a misdemeanor.
The Protecting America's Workers Act (PAWA) makes much needed increases in both civil and criminal penalties for every type of violation of the OSH Act and would index civil penalties to increases or decreases in the Consumer Price Index (CPI). In addition, PAWA would also amend the criminal provision of the OSH Act to change the requisite mental state from "willfully" to "knowingly." These changes would be consistent with other protective statutes. Harmonizing the language of the OSH Act with that of these other statutes would add clarity to the law. As we have previously testified, OSHA strongly supports these changes in the law. Simply put, OSHA penalties must be increased to provide a real disincentive for employers accepting injuries and worker deaths as a cost of doing business.
OSHA Coverage for Public Employees
In addition to making much needed changes to the OSH Act's penalty provisions, PAWA would cover all public employees. There are currently 26 states and two U.S. territories that are State Plans and therefore cover public employees. Twenty-two State Plans (21 states and one U.S. territory) cover both private and state and local government workplaces. The remaining six State Plans (five states and one U.S. territory) cover state and local government workers only. That leaves 10 million employees in 24 states where State and local government workers are left without the right to a safe workplace. These public employees are highway construction workers who work inches from speeding traffic in the middle of the night, firefighters who risk their lives to protect our homes and families, mental health workers, social service workers and corrections officers who face the threat of workplace violence on a daily basis, and wastewater treatment plant workers who wade through raw sewage and deadly gasses to ensure that the water we drink and use on a daily basis is safe. Public employees need the same right to a safe workplace - to come home in one piece at the end of the day - that private sector employees have enjoyed for more than 40 years.
Strengthening Whistleblower Protection Provisions
In the decades since the OSH Act was passed in 1970, we have learned a great deal from newer anti-retaliation statutes about protecting workers, particularly the statutes passed by the Congress within the last decade. These statutes are more effective at making whole workers who have been retaliated against, and are leading to significant improvements in workplace culture.
To give section 11(c) the teeth it needs to be as effective as newer whistleblower statutes, it must be updated. To this end, OSHA recommends strengthening the procedural requirements of section 11(c) to be consistent with more recent whistleblower statutes, by: (1) providing OSHA with the authority to order immediate preliminary reinstatement of employees that OSHA finds to have suffered illegal termination; (2) modifying the adjudication process to provide a "kick-out" provision which will enable workers to take their disputes to a Federal District Court if the Department fails to reach a conclusion in a timely manner; (3) allowing for a full administrative review of OSHA determinations to the Department of Labor's Office of Administrative Law Judges and Administrative Review Board; (4) extending the statute of limitations for filing complaints; and (5) revising the burden of proof under section 11(c) to conform to the standard utilized in more recently enacted statutes.
We continue to work hard each and every day to ensure employers are protecting their workers from the myriad of safety and health hazards in workplaces across this country. Despite the challenges I have laid out for you today, we have been very successful in making America a safer nation in which to work. Even with our best efforts, every year, still nearly four million workers are injured or made sick at work, and thousands more die from work-related injuries or illnesses.
The financial and social impacts of these injuries and illnesses are huge, with the costs, which should be paid by employers, are borne primarily by the workers and their families, and by taxpayer supported programs. Every one of us has seen how injuries and illnesses can force working families out of the middle class and into poverty, and prevent the families of lower wage workers from ever entering the middle class.
I want to thank you again for inviting me to this hearing to describe to you the efforts we are taking to protect American workers and to discuss how, together, we can do this even more effectively. I look forward to your questions.