Posted with permission from Jordan Barab.

OSHA State Plans: love ’em or hate ’em, but we have to live with them.

The Kentucky Center for Investigative Reporting, Ohio Valley ReSource and the Center for Public Integrity have just put out a devastating series of articles and audio reports about serious flaws in Kentucky’s state run OSHA program, and raised serious questions about the ability of many of OSHA’s other twenty-seven state plans to protect workers effectively.

Basing its report on OSHA’s annual audit of Kentucky’s programs, other OSHA special investigations of the program, as well as the journalists’ own investigations, the reports find that:

• Kentucky OSHA failed to properly investigate nearly every single worksite death in two years. The flaws included failing to identify the cause of the accident, not conducting or documenting interviews and overlooking obvious violations.
• Inspector interviews with witnesses were “inadequate” or not adequately documented;
• Causes of incidents and obvious violations ere overlooked, and obvious hazards, including those related to a worker’s death, were not addressed;
• The sloppy investigations left workers “continuously exposed to serious hazards that remain unabated.”
• Kentucky OSHA only investigated complaints that come from employees of a company, ignoring 70 percent of the complaints that came from non-employees.
• Kentucky is inspecting fewer workplaces than it ever has; the 787 inspections it conducted in fiscal year 2017 was the lowest number in at least a decade.

The reports attribute many of the problems with Kentucky OSHA to the pro-business, anti-regulatory administration of Kentucky Governor Matt Bevin, whose companies have had their own share of OSHA problems.

But there are significant structural problems with all state OSHA programs:

• State OSHA programs are underfunded, turnover is high, and they are short of skilled, trained staff
• Federal OSHA does not have the resources or legal means necessary to adequately oversee the state programs

Background of OSHA State Plans

The Occupational Safety and Health Act provides states with the opportunity to run their own programs. The state plans must be “at least as effective as” the federal program. OSHA must approve a state’s program and oversee the program to ensure that its enforcement program, its standard setting process and its resources are “at least as effective” as federal OSHA’s. OSHA funds up to 50% of the state programs.

Funding is provided by Congress in a separate line item in the OSHA budget. That money is allocated among the states using a complex process, and the states are then required to match the amount that the federal government provides, although many states “over match,” providing more than the required 50% match.

Twenty-one states have “full” OSHA state plans which cover all private sector employees and, by law, they are also required to cover public sector employees (who are not covered in “federal” states.) In addition, the Occupational Safety and Health Act allows states to run “public employee-only” state plans, where federal OSHA enforces the law for private sector employees, and the states (with a 50% federal match) run a safety and health program for public sector employees. Five states and the Virgin Islands run public sector state OSHA plans. While several new public-employee only program have been approved over the past 25 years, no state has applied for a full state program since the 1970’s.

Kentucky

While many state programs have problems, Kentucky’s may be among the worst. The reports tell stories of

• Pius “Gene” Hobbs who was run over by a work vehicle that allegedly didn’t have a functioning (or at least audible) backup beeper. A supervisor with KY OSHA joked in an email that he just “zigged when he should have zagged.”  Federal auditors found that KY OSH didn’t do enough to verify whether it worked or not and warned that “KY OSH should ensure that all available evidence is obtained and used to determine the facts at the time of the incident before developing conclusions and findings.”
• The case of Jeffrey Burke who was crushed to death when the jacks failed while he was working on a car of his manager’s daughter — not part of his job as a hotel maintenance worker at a Louisville hotel. Kentucky OSHA determined that the death was basically the employee’s fault, but the KY OSH inspector didn’t interview the manager who ordered the work.
• Nineteen year old Grant Oakley, who was killed on his second day of work when he fell of a forklift he was hitching a ride on and was caught under the wheels. Kentucky OSHA investigated, but “the investigator’s handwritten notes were incomplete and hard to read. It appeared the state’s inspector didn’t question witnesses.” Federal OSHA officials and a county prosecutor that was attempting to pursue criminal charges found that “the work was sloppy, incomplete, and not in compliance with the federal requirements.” Federal OSHA criticized the state for “just taking managements’ word.”

Read all the stories. They’re heartbreaking.

I defy you to get through Delanna Miller’s audio interview about her husband Justin without a box of tissues handy. Justin Miller, just 23 was electrocuted on the job. He had a one-year old son, and Delanna was pregnant with their second child. A federal audit found that Kentucky OSHA should have issued Miller’s employer citations for two safety violations. It issued none. And then, “months later, Miller’s widow found out there had been a nearly identical death that had resulted in citations a few months prior.”

What’s Wrong with OSHA State Plans?

OSHA’s state plans were devised to promote a “laboratory of the states,” to encourage innovation in protecting workers. While the state plans had to be “at least as effective as” the federal program, they could also be more effective. But only a few states, like California and Washington, have taken advantage of that opportunity, developing standards (like ergonomics or workplace violence) that federal OSHA does not have. California also adopted a Process Safety Management standard that is more effective than the federal standard and Washington is working on a similar standard. Many states, such as Oregon, manage to inspect a greater percentage of workplaces under their jurisdiction than OSHA does, but in general, penalties issued by state plans are far lower than federal OSHA’s. Their funding and effectiveness differs widely as well, as Jim Morris from Center for Public Integrity pointed out in one article:

The track records of those programs vary widely. Some are cash-starved and suffer from high staff turnover and investigative lapses as a result. Others are relatively well-funded and stable. Recently released federal audits of the 28 programs (six of which cover only public-sector employees) found significant problems in Arizona, Illinois, Kentucky and Maryland, for example, while praising Iowa, New Jersey, Oregon, Tennessee and Washington.

As I mentioned above, while Kentucky’s OSHA program may be especially troubled. Most of the people running the program are dedicated safety professionals, but even aside from the deregulatory politics dominating in some states, there are critical systemic problems facing OSHA’s state plan programs.

Funding: As mentioned above, funding for the state plans is provided in a distinct line item in OSHA’s budget. Today that number is lower than it was just a few years ago. The current $102.3 million budget for the state plans is a 2 million increase over the previous year, but the state plan budget was $104.4 million in FY 2011. States are required to match the amount provided by the feds, and while many states “over match,” providing more funding than required, fewer and fewer are electing to over match. Kentucky, for example, does not over match. Somehow, funding of state programs is seen by Congress as optional, ignoring the fact that it is the state plans that provide standards, enforcement compliance assistance for almost half of the workers in the country.

The underfunding — and the specific problems in Kentucky — are even more remarkable when one considers where the Senate Majority Leader is from.

On the other side of the funding coin, the federal government doesn’t have adequate resources to adequately oversee all 28 state plans to the extent necessary to ensure that their program are actually “at least as effective” as the federal program.

Turnover: As the articles indicate (and as a 2013 GAO report has confirmed), state plans have problems retaining qualified staff, mainly because they are poorly paid and can earn much more going over to private industry. State inspectors are hired, great expense goes into training them to the point where they can conduct effective, well-documented inspections, and then they go off to the private sector (or sometimes to better paying jobs in federal OSHA).

These employees investigate grisly deaths and dismemberments. They deal with heartbroken families and contentious companies. Entry-level pay for the job, which requires a college degree, starts at $30,000 a year. According to a [Kentucky] state database, even the most experienced officers make about $55,000. And a little experience working for the state can translate to double or triple the state salary in the private sector.

Legal Restrictions: Even where a program is under-performing, federal OSHA’s options are limited. The main tool OSHA has is the death penalty — taking away the state’s approval to run a state program. But not only is that process lengthy and complicated, it would saddle an under-resourced federal Agency with even more obligations. In addition, if the feds take over a state plan, public employees — who are required to be covered by state plans — would lose their right to a safe workplace in those states.

Under the Obama administration, federal OSHA developed other tools to pressure the problematic state programs. When South Carolina decided to give up its whistleblower program, federal OSHA threatened to take over the program, and the business community — fearing the feds marching in — convinced the state government to resurrect the program. When Arizona refused to adopt stricter residential fall protection requirements, the federal government threatened to take over their construction sector. After federal OSHA completed a lengthy legal process to assume control of the construction sector, the state relented at the last minute. And federal OSHA and the suffering Hawaii program agreed to allow federal OSHA to temporarily take over much of that state program. After resolving most of its issues, the Hawaii program returned to full state control last year. Finally, during the Obama administration, OSHA told the troubled Virgin Island public employee program that it would only receive funding after it showed that it had met certain effectiveness milestones required by federal OSHA.

But all of these measures are difficult and resource intensive, and ultimately, if a state refuses to cooperate, OSHA’s only choice is to take over the state plan — an outcome that helps no one — especially the workers that OSHA is supposed to be protecting.

Federal-State Relations: Underlying all of the above problems is a general resistance on the part of the state plans to federal “interference” with their programs. My time at OSHA was filled with conflicts with the state plans as we attempted to ensure that they adopted all Federal Emphasis Programs (successfully) and that they raised their penalty levels to approximate the federal average (less successfully). Many of he states view the federal-state relationship as one of equals, while the law clearly states that the federal government is required to oversee state plan effectiveness.

Of course, like many issues in government, the law is not completely clear. The Occupational Safety and Health Act doesn’t define what “at least as effective as” means, an oversight that has led to many lively debates between state plan states and federal officials over the years.

What is to be done?

The problem with state plans is not an easy one to solve. Obviously, one of the first solutions would be to significantly increase the budget for state plans (and state plan oversight), which would ease the problem of turnover and enable the states to retain more qualified staff. Obviously, more funding would also allow the states to inspect more worksites and allow OSHA to provide more consistent and thorough oversight of the state plans.

Another solution would be to change the Occupational Safety and Health Act to provide quicker and more effective tools for federal OSHA to fix the problems in the state plans without threatening the death penalty.

Take a few minutes to read the stories and/or listen to the interviews. It will be well worth you time.

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