Posted with permission from Confined Space, a newsletter of workplace safety and labor issues.
Earlier this week, President Trump submitted his Fiscal Year 2019 budget proposal. This is his second budget proposal, and like the first, although it left OSHA’s budget fairly flat, it once again proposes to slash or eliminate important safety and health programs and agencies. And this is Trump’s second OSHA budget that has been proposed with no Assistant Secretary yet in residence. Scott Mugno’s nomination continues to languish in the Senate.
First, the good news. With one major exception (see below), OSHA’s budget would remain mostly level– with a small $5.1 million (2.4% and 42 full time employees) increase over FY 2017 in the enforcement budget, as well as a small $3 million (4.2%) increase in compliance assistance — mostly to add Compliance Assistance Specialists who had been cut in previous years due to budget limitations, and an addition of eight staff to work exclusively on the Voluntary Protection Programs.
Meanwhile, in addition to trying once again to eliminate the Susan Harwood Training Grant Program and the Chemical Safety Board, the administration’s proposal also eliminates two OSHA Advisory Committees dealing with whistleblower protections and federal employee safety and health.
Harwood and the Chemical Safety Board: Deja Vu All Over Again
In what can only be characterized as the triumph of hope over experience, the Trump administration has yet again proposed the elimination of OSHA’s Susan Harwood Worker Training Program and the independent Chemical Safety Board — two proposals that had about as much lift as a Butterball Turkey when the administration floated these ideas in its FY 2018 budget.
Now this budget is not necessarily bad news for us bloggers. I mean, I don’t have to write any new stories about how terrible the elimination of the Susan Harwood Worker Training Program would be for the safety of workers — especially vulnerable workers like the mostly immigrant day-laborers who have been rebuilding Houston after Hurricane Harvey.
And I don’t have to write much new about how pointless the elimination of the Chemical Safety Board would be for chemical plant safety — and the safety of workers at the plants and communities surrounding the plants.
Because you, good readers, already know all of that. But perhaps more important, Congress already knows that. Certainly both the House and the Senate understand the importance of the Chemical Safety Board as they displayed when the relevant Appropriations bills in both houses voted to keep the CSB fully funded in the 2018 budget after the Trump administration recommended its elimination.
Similarly, after being sentenced to death in the Trump administration’s 2018 budget proposal (and in the House of Representatives’ Labor appropriations bill), the Senate Appropriations committee voted on a bipartisan basis to ignore the Administration’s proposal (and the House bill) and maintain the program.
|CSB and Harwood: There’s no education from the second kick of a mule.|
But these guys aren’t only irresponsible and just plain wrong; they’re also lazy. You’d think that after failing last year to eliminate these programs, they’d at least come up with some new and improved justifications. But no. As in 2018, the 2019 budget erroneously justifies the elimination of the Harwood program on an alleged lack of “evidence that the program is effective.” And they again incorrectly justify the CSB’s elimination on the the ‘relative duplicative nature of its work,” presumably assuming that the CSB duplicates the efforts of OSHA and the Environmental Protection Agency.
The CSB, however, is not discouraged. Being an independent agency, they submitted their own $12.1 million budget request to keep the agency open. The board is currently conducting nine open investigations: Red Mountain Operating, Arkema Inc., Didion Milling Inc., Midland Resource Recovery, Loy Lange Box Co., Packaging Corporation of America, Sunoco Logistics Partners LP, Enterprise Products Partners LP and DuPont.
I’m not going to waste scarce electrons or your valuable time explaining again why these justifications are — to put it mildly — bogus. If you want to re-read what I wrote last here about these proposals, you can start here. (Here is much more on the importance of the Chemical Safety Board and the Harwood Grants.) And I’m sure we’ll be writing more about the importance of these programs in the near future.
There’s a saying that there’s no education from the second kick of a mule. With a little lobbying and common sense, we can only hope that the Trump administration will get to witness that phenomenon with its 2019 workplace safety and health budget.
Compliance Assistance and OSHA’s Voluntary Protection Program
OSHA’s federal compliance assistance budget is slated for a 4.2% increase which will include 8 employees fully dedicated to the Voluntary Protection Program and 24 Compliance Assistance Specialists (CAS). OSHA once had a CAS in every one of its 70 Area Offices, but budget cuts and the hiring freeze had cut those numbers significantly.
VPP, established in 1982 to recognize workplaces with exemplary safety and health management systems, has always been a favorite program of Republican administrations. As we’ve discussed, however, the program has faced significant integrity and funding issues over the past several years. Trump’s OSHA has held two stakeholder meetings to discuss problems with the program and although the outcome of those meetings have never been released by OSHA, the agency is doubling down on VPP growth. According to OSHA’s Congressional Budget Justification, “with the addition of 24 CAS and 8 VPP staff, OSHA anticipates approving 155 new VPP sites and re-approving 395 sites in FY 2019.”
One notable change in the Trump budget from previous budgets is the total omission of a focus in its compliance assistance program on vulnerable workers, such as day laborers, temporary workers and workers with limited English proficiency who often work in high hazard industries and are difficult for OSHA to reach. It is a common myth that the Obama administration focused totally on enforcement to the neglect of compliance assistance. The truth is that the Obama administration conducted a major compliance assistance program, but instead of focusing exclusively on assistance for employers, the Obama administration focused compliance assistance resources on helping vulnerable workers. OSHA’s CBJ doesn’t even mention vulnerable workers or working with labor unions in its Compliance Assistance section, focusing exclusively on broadening “its reach, assistance, and support to small businesses and other employers working to comply with OSHA requirements and protect their workers,” as well as working with more “trade associations, organizations, and employers it engages with directly through its cooperative programs.”
OSHA’s Budget Justification states that it plans to issue three final rules, including one on beryllium, and four proposed rules. As you may recall, OSHA proposed last June to weaken beryllium protections for maritime and construction workers. (The schedule for this is a bit unclear as the CBJ also states that “OSHA anticipates that this rulemaking will proceed fairly quickly with a proposal either late 2018 or very early 2019.” Given that OSHA already issued a proposal in June 2017, it’s unclear whether this statement means they’ll issue a new proposal or it’s just a result of lousy proofreading.)
Other final standards include a minor revision addressing respirator fit-test methods, and a revision of the recordkeeping standard. OSHA has stated for some time that it doesn’t like parts of the Obama administration’s electronic recordkeeping regulation which requires employers to send injury and illness data to OSHA, and to prohibit retaliation against workers for reporting injuries or illnesses. Given that no proposal has yet appeared, it’s possible, but unlikely that a final revised rule will be issued before October 1, 2019, the end of FY 2019.
The only small business (SBREFA) review mentioned is one for a cell tower standard. No mention of a SBREFA panel for workplace violence. SBREFA is the first formal step of the regulatory process.
In addition to numerous guidance products, OSHA plans to use its standards funding to throw a bone to its industry friends by conducting “retrospective reviews to revise and update existing standards in ways that will better protect workers and, where possible, reduce burden on employers.” Don’t expect much there. A thorough review of a standard or regulation takes years and generally confirms that the original standard protected workers more effectively, and at a lower cost than OSHA had originally predicted.
As it did last year, the Trump administration proposes to whack NIOSH, continuing to show its disdain for evidence-based practice that is supported by real research. Trump is again proposing to cut NIOSH job safety research by $135.2 million (40%), and proposes to eliminate educational research centers, agriculture, forestry and fishing research centers and external research programs.
Then it gets weird. Trump is proposing to take NIOSH out of CDC and then possibly combine it at a later date with other parts of the National Institutes of Health. Section 22 of the Occupational Safety and Health Act established the National Institute for Occupational Safety and Health in the Department of Health and Human Services to “conduct research,experiments, and demonstrations relating to occupational safety and health.” NIOSH is currently part of the Centers for Disease Control, which is also part of HHS. How this envisioned reorganization will work with the OSHAct that establishes a separate institute specifically for Occupational Safety and Health remains to be seen. Meanwhile, the World Trade Center Health Program (administered by NIOSH director by law) would remain at CDC.
Fifteen coal miners died on the job in 2017, compared with only 8 in 2016, but Trump apparently sees those troubling numbers as a reason to cut coal enforcement by $3 million. the overall budget for the agency will increase by $2 million, with funding for metal/non-metal enforcement increasing by $2.5 million
Advice? We Don’t Need No Stinkin’ Advice
OSHA has several advisory committees comprised of outside experts intended to advise, consult with and make recommendations to OSHA and DOL leadership about how to improve worker safety and health. The agency currently has five advisory committees: The National Advisory Committee on Occupational Safety and Health (NACOSH), the Maritime Advisory Committee for Occupational Safety and Health (MACOSH), and the Advisory Committee for Construction Safety and Health (ACCSH), the Federal Advisory Council on Occupational Safety and Health (FACOSH) and the Whistleblower Protections Advisory Committee (WPAC.) NACOSH and ACCSH were established by law and the others by the Secretary of Labor and the White House.
Trump wants to eliminate two OSHA Advisory Committees and none have met in over a year
The committees are populated with national experts representing labor, management and public agencies who rotate every few years. Advisory committees traditionally meet two or three times a year, but none have met in the first 13 months of this administration.
Trump’s OSHA budget proposes to eliminate two of the agency’s five advisory committees: FACOSH and WPAC. WPAC is the newest advisory committee and was established in 2012 to help OSHA “improve the fairness, efficiency, effectiveness, and transparency of OSHA’s administration of whistleblower protections.” WPAC was one of the many initiatives undertaken in the Obama administration to improve the operation of OSHA’s troubled Whistleblower Program, including creating a separate directorate and a separate budget item. Achievements of the committee include the publication of the first-ever Recommended Practices for Employers for Addressing and Preventing Retaliation which assists employers in creating workplaces in which employees can voice their concerns without fear of retaliation.
Federal employees are not covered under the Occupational Safety and Health Act, but were provided protections by Executive Order 12196 which requires each federal agency to “Furnish to employees places and conditions of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Executive Order 11612, issued by Richard Nixon, established FACOSH in order to “advice on how to reduce and keep to a minimum the number of injuries and illnesses in the federal workforce and how to encourage each federal Executive Branch department and agency to establish and maintain effective occupational safety and health programs.” Federal OSHA can cite, but not fine federal agencies and has uncovered and corrected a number of serious safety and health problems in the nation’s military bases, hospitals, prisons, hospitals and other federal facilities.
In related news, Trump’s budget
- Cuts EPA’s budget by 34% so that the agency can eliminate “lower priority programs” and refocus on “core activities.” Among the “lower priority programs” that the EPA is proposing to eliminate are those that address the only environmental threat that can literally destroy the earth as we know it — climate change. After all, climate change may be good for us. “Core Activities” that need more funding apparently refer to a swollen security detail for EPA Administrator Scott Pruitt, his high security communications chamber and, of course, his first-class travel to points domestic and foreign.
- Cuts the Centers for Disease Control and Prevention: In the midst of a flu pandemic and the ever-present threat of Ebola and the emergence of other “new” diseases, Trump is proposing to cut back CDC’s budget by $1 billion.
- Cuts National Labor Relations Board by $25.2 million (9%)
- Cuts Employment and Training Services by $1.3 billion (39%)
- Cuts Unemployment Insurance and Employment Services by $45.4 million (13%)
- Cuts Job Corp by $40.7 million (24%)
- Eliminates the Older Worker Program
- Cuts Office of Federal Contract Compliance Programs (OFCCP) by $13.4 million (13%). OFCCP ensures that contractors and subcontractors who do business with the federal government comply with the legal requirement to take affirmative action and not discriminate on the basis of race, color, sex, sexual orientation, gender identity, religion, national origin, disability, or status as a protected veteran.
- Cuts Labor Department’s International by $67.6 million (79%)
- Cuts Women’s Bureau by $7.6 million (68%)
- Proposes $8.5 million (22%) increase for Office of Labor-Management Standards (OLMS) enforcement. OLMS ensures that union elections and finances are conducted legally. Republican administrations traditionally use OLMS to harass unions; hence the increased funding.
This is the beginning of the FY 2019 budget process. FY 2019 begins on October 1, 2018, but the budget will not be passed by then. No Congress in recent memory has finished a budget by the end of the budget year and that prospect is even less likely in an election year.
The next step in the process will be Secretary Acosta’s testimony before the House and Senate appropriations committees. There will then be long deliberations in the House and the Senate, and eventually both Houses of Congress and the President will have to come up with a budget that they agree on. The process is more difficult in the Senate because 60 votes are needed to pass a budget. And as we saw last year, the House budget was much worse than the President’s proposal (although they did vote to maintain the CSB), while the Senate’s OSHA budget was better then the President’s proposal.
And, of course, depending on the outcome of the Congressional elections on November 6, Trump could be facing a Democratic House of Representatives and/or a Democratic Senate, and a Democratic majority in either house of Congress would drastically change the final budget that emerges from this process.
But nothing good in this country happens by itself. It happens because knowledgeable and caring citizens ensure that their Senators and Congressional Representatives understand the importance of these programs in protecting worker safety and health. That’s where you come in. Especially in an election year, it’s important that those running for office understand the daily hazards facing American workers and the role of the OSHA and other government agencies in making sure workers come home safely at the end of the day. And already, just days after release of the President’s budget, opposition to his proposal to eliminate the CSB has begun.
And there will be more.