OSHA's Way Forward

From VPP to standards and PELs, there are many reasons why our industry cheers and jeers OSHA. How can the agency do better?

• By Jerry Laws
• Jan 01, 2007

THE glass is decidedly half full when some of the U.S. safety profession's leaders contemplate the Occupational Safety & Health Administration as it enters early middle age. At age 35, the premier federal agency for ensuring workers' safety is obsolete, hamstrung, more competently staffed, and more helpful to its regulated industries, all at once, these experts said in interviews. The bottom line: OSHA accomplishes too little but succeeds at what it does. Similarly, their opinions about OSHA's future role vary widely.

"This is an agency that has become increasingly irrelevant to growing numbers of workers in the economy because the economy has continued to shift into the service sector," said Bill Borwegen, MPH, director of occupational safety and health since 1983 for the 1.8-million-member Service Employees International Union. "The vast majority of injuries and illness today occur in the service sector. Hospitals now have injury and illness rates higher than mining, manufacturing, or construction. And in nursing homes, the rate is close to double the rate for hospitals. We have an epidemic going on in the service sector, and we have an agency that's ill-equipped and doesn't really have the desire to change to work in a service-sector economy. They're still stuck in an industrial mindset."

OSHA's supporters said it is meeting new challenges. "Certainly, the agency is now poised to be more effective in responding and in helping emergency responders in emergencies," said John L. Henshaw, CIH, principal in Sanibel, Fla.'s Henshaw and Associates Inc. and the OSHA administrator from August 2001 to December 2004. He was reflecting on the participation of about 70 OSHA employees during the cleanup of the World Trade Center site in New York City for weeks after Sept. 11, 2001. Fire chiefs at first rebuffed OSHA officers who asked them to have their crews wear protective respirators while working on "the pile," the name given to the WTC towers' debris.

"It was clear to me that they didn't understand who we were or what expertise we had, from a safety and health standpoint. And they'd never trained with us," Henshaw said. "From that point, we decided we've got to let them know who we are and let them know what expertise we bring and help them. And that's what we are doing today. Today, our folks are part of the LEPCs--the local emergency response planning committees. In just about every area office, I believe, we're participating with the firefighters and police in dealing with emergencies. They're getting to know us. We're part of the training scenarios. And the next event, they'll know who we are and what expertise we have."

OSHA's personnel are better trained and encouraged to become certified, and their participation in industry events allows the regulated community to know them and respect their abilities, said Henshaw. "The regulated community and stakeholders see OSHA as a player, a participant in the process, part of the solution. And our folks, OSHA, are seeing that they're accepted. . . . We are not just a regulatory agency, in my mind. We're a safety and health agency. And if you think that way, it allows you to get into emergency response."

John Pendergrass, CIH, CSP, P.E., OSHA's administrator from May 1986 to March 1989, was an industrial hygienist working in 3M's OSH division (now called OH&ESD) when the OSH Act passed in December 1970 and changed the landscape. "I think everyone supported it; I was a supporter of it. However, I don't think we realized what it was going to result in," he said. "Prior to OSHA, the practice of industry hygiene was to prevent occupational illnesses. With the implementation of the act, it became compliance with the rules. A different approach to things, and I don't think most of us really recognized that or realized that was what was going to happen. I'm not excusing myself, either--I was a part of it."

This transformation expanded the scope of practice but "changed the philosophy," Pendergrass said. "If you talk to people today, it's always compliance: 'Am I in compliance?' You can be in compliance and still have health problems. Because the agency has not been able to promulgate standards for everything that exists."

He said from his vantage point, OSHA "has been very, very successful at education, and training, and enforcement, but not the promulgation of regulations. Not because they haven't tried; I think that every administration has tried diligently to promulgate effective regulations. But there have been very few that, first of all, haven't taken an interminable length of time to get through. Lockout/tagout--a very simple procedure, one that had been in existence for years, long before OSHA--17 years to get that standard. And then you wind up in court. There have only been a very few that did not go to court," Pendergrass summed up. "So it becomes a very long process, a very expensive process. It causes a lot of animosity. So why don't we say, 'Let's forget it. Try something else.' "

Henshaw and many other safety veterans of note agree a new rulemaking scheme is essential. "The Congress of the United States has got to look at the whole legislative landscape that they built--they built it back in 1970 when they passed this law--around promulgation of standards. It is almost an impossibility to get a standard out. That isn't something that OSHA can fix," said Alan C. McMillan, who headed OSHA in 1989 during his career with the Labor Department. Today, he's president/CEO of the National Safety Council.

Better Off Without OSHA?
Some prominent and experienced safety professionals look at OSHA's very existence with dismay. "When OSHA came into existence, we put our primary emphasis on the OSHA incident rate, which is a frequency-based thing rather than a severity-based one. And so we put our emphasis on minor stuff, bee stings and paper cuts, so that we count to a large degree those kinds of things as much as we do a fatality. And to me, that's ridiculous," Dan Petersen, the author of several fundamental texts in the field of safety and a practitioner for more than 50 years, said in a November 2005 interview.

Petersen went to work as a safety engineer for an insurance company in 1954, when that title was new. He earned his Ph.D. in human error reduction concepts and how they related to safety management in 1972 at the University of Colorado. "I got out of graduate school in 1972 and said, this is where safety ought to be going," he said. "And, of course, 1972 was just about the time when OSHA became full-blown. Nobody in safety paid any attention to any of this human error stuff or industrial psychology stuff. They said, 'We've got to get back to the basics. Our savior has arrived.' "

Would we be better off if OSHA had never been created, I asked him. "Can I say yes? I don't think we'd be any worse off. That's not the right thing to say, but I guess I'd say it anyway," Petersen answered. "I was in the profession for 25 years before it came along, and I'm not saying we did well, but I'm not saying we're doing well after, either.

"We're pretty much plateaued. What I think has happened after depends upon which measuring stick you're going to look at. In terms of seriousness of injuries, we've plateaued--very much so. I'm uncomfortable with what we've got today. I do a lot of work with energy companies, and I'm not sure but what we have not had more explosions in fossil fuel plants in this country after OSHA than before.

"If we pay attention to the minor stuff, I'm afraid we've let the major stuff get away from us. I don't see anything pushing us to get us tremendously better," Petersen said.

Edward D. "Jed" Bullard, chairman of 108-year-old PPE manufacturer E.D. Bullard Company and a past chairman of both the National Safety Council and the ISEA Board of Trustees, said OSHA's regulations remain important for employers. "I think in today's world, the absence of an OSHA would just send the wrong signal to the people who are asked to perform the work. OSHA is really our society's commitment to the workforce," said Bullard, who received the 2006 Robert B. Hurley Distinguished Service Award last October from the International Safety Equipment Association. "I think you would find probably in the preponderance of workplaces, at least in the United States, in most cases and in most areas the employer is probably doing more than OSHA requires."

"What a great job they've done," the Safety Council's McMillan said of OSHA's personnel. Then he listed four areas of needed improvement, starting with a new scheme created by Congress to promulgate safety standards. Standards don't need to be easy because we don't want overregulation or a rush to complete a standard for everything in the American workplace, said McMillan, "but we need a balance and to get to a place that's better than today."

His other recommendations: Get rid of the mix of federal and state programs and instead use federal standards and enforcement everywhere. Put the federal government's workplaces and agencies under the safety and health law, not under executive orders. Turn voluntary compliance, non-technical support, education, consultation, and on-site review over to the private sector, consultants, and nonprofits so OSHA instead can focus on standards promulgation, enforcement schemes and methodology, and leadership globally, including harmonization of standards. "These aren't enormous matters; they don't have to happen for us to have a successful, national, federally led safety program," McMillan said. "The biggest one is improving standards, and that's up to Congress."

VPP and Other Triumphs
Charles D. Reese, who retired at the end of 2004 from leading the safety instructional program at the University of Connecticut College of Continuing Studies, had worked during his career for NIOSH's Division of Safety Research, EPA, and the National Mine Health and Safety Academy in Beckley, W.Va. All 25 of OSHA's administrators have contributed significantly to the industry's growth and success, he said.

"That's not an easy job, to balance the political and the concerns of safety and health for the workforce. Every one of those directors at OSHA have attempted to do the very best job they could do," said Reese. "When you consider that OSHA's budgets at one time, added together, did not equal one year of EPA's budget--you were less than a dollar a worker--you can actually get a picture of the true support that really exists for OSHA. It really is nominal in comparison."

"OSHA has done an awful lot in 35 years and has come an awful long ways," Henshaw said. "Regardless of the political spin, they have made some major strides. And they've got to continue to be innovative and creative. Not just OSHA, but Congress, on improving, enhancing the statute [and] the agency's performance." He said he regards streamlining the agency's regulatory agenda during his tenure as an accomplishment, as was upgrading the quality of its people and encouraging them to become certified.

VPP is one of OSHA's biggest successes, said R. Davis Layne, who began his 34-year OSHA career as a compliance officer and eventually was acting assistant secretary. He left to become executive director of the Voluntary Protection Programs Participants' Association in January 2005.

VPP is an ambassador for U.S. safety practices and our high expectations for safe work to both Europe and Asia, he said. With VPPPA up to 1,600 sites as of October 2006 from 647 just six years earlier, the VPP concept also is spreading the gospel of safety domestically, Layne said. The Department of Defense created its own Voluntary Protection Programs Center of Excellence in 2005 and has active VPP Star sites at several shipyards and the Tobyhanna Army Depot in Pennsylvania. DoD VPP CX, as the center is known, says expected outcomes from the program include reduced injuries, higher readiness, lower worker's compensation costs, improved safety, and higher morale.

Participating VPP sites frequently invite companies from the surrounding area to their recognition ceremonies, and safety personnel from VPP sites are eager proponents of the concept, Layne said. "I think it's like a snowball that's going down the hill," he said. "I see a great deal of interest in this in the federal government as a way to certainly address worker safety and health, but also the government is interested in reducing their worker's compensation costs themselves. They see VPP as a real advantage." So do construction firms, who clamored for a shot at VPP. OSHA wrestled for years with how to do it before launching a construction demonstration project recently.

Construction VPP will work, Henshaw said, because the best companies in that industry already have rules that exceed OSHA's (e.g., a 6-foot fall protection rule rather than 15 feet). "They can sell that value and they can get better jobs. Ultimately, they're doing it because their worker's comp costs are going to be lower," he said. "I'm hoping the VPP will be a competitive advantage and create that paradigm where you have people saying, 'If I want to get more jobs, I need to get VPP.' That'll be a great driver, once we can get that in. Of all places, the construction side is the place where you can achieve that kind of paradigm."

Layne also cited five other OSHA successes: OSHA's Hazard Communication standard, its vinyl chloride standard, its standard and emphasis on safe construction trenching/excavation, its much-improved relationship with state programs, and its evolution from a pure enforcement entity in the 1970s to today's more effective role mixing enforcement with cooperation and guidance. "OSHA's trenching and excavation standard and the emphasis that the agency has put on trenching and excavation has saved hundreds of lives, I absolutely believe that," he said. "You still occasionally will hear about a trenching or excavation fatality or serious injury, but it is certainly not with the frequency that you heard about going back 20 years ago."

OSHA's biggest failure is that it did not commit itself to involve safety and health courses in academic curricula, he said. There were efforts aimed at business schools' courses, but they failed, said Layne. "If it could just be part of the educational process," he said.

Bullard and McMillan said safety has made inroads into the business school curricula at Georgetown University's McDonough School of Business and at Northwestern University's Kellogg School of Management, among others. "It does get picked up a little bit more than it did in the past. But it gets picked up not per se as safety, but more likely in the ethics classes that have become widespread, especially in the past five years," Bullard said. He said at Harvard Business School, for example, there are classes taught on a manager's responsibility for maintaining a safe and healthy workplace, both domestically and globally.

Brooks C. Holtom, Ph.D., an assistant professor of business at the McDonough School, said he has completed case studies on the first two winners of the National Safety Council's Robert W. Campbell Award, Noble Corp. and Johnson & Johnson, and is sharing them with other schools. The studies connect the language of safety to the language of business/finance and are the foundation of what will become a portfolio of studies used to educate corporate leaders, Holtom said.

Another major success in OSHA's history is the bloodborne pathogens standard, 29 CFR 1910.1030, which OSHA promulgated on Dec. 6, 1991, after the Service Employees International Union petitioned for it. Borwegen said the union began asking for it after SEIU members at San Francisco General Hospital provided some of the earliest care for AIDS patients, before the disease's causation was understood. "That standard had a remarkable impact," he said. "CDC's published data show that Hepatitis B cases have plummeted from 17,000 a year among health care workers to about 400 a year. Deaths have plummeted from about 300 a year to a negligible level. They directly credit it to the passage of the bloodborne pathogens standard."

The union was already focused on safe sharps when the standard came out, so it began working toward an amended standard that would require safer needles. Getting it took 11 years, the passage of safe needle legislation in about 20 states, and help from members of Congress who included Sens. Mike Enzi and Ted Kennedy and Rep. Cass Ballenger. Borwegen said the latest research shows needlesticks have dropped about 51 percent because of the amended standard.

What's the Solution for OSHA's PELs?
Fossilized permissible exposure limits--a sore point for many in the profession because OSHA's existing ones are badly out of date--can be resolved only by having Congress significantly reduce the rulemaking process and updating them en masse, or perhaps by having OSHA adopt consensus standards of professional organizations once they have shored up their consensus process to make their limits less controversial, Henshaw said.

Updating the PELs for the first time since OSHA's creation was the principal accomplishment Pendergrass named when asked about his tenure as assistant secretary. The AFL-CIO and the American Iron and Steel Institute soon sued, won the case, and the updates were wiped out. Now everyone agrees the limits should be updated, but the lawsuit makes it difficult, he said. "There hasn't been any strong effort to, and I can understand why. Rulemaking is part of the problem. It's the basic problem."

"OSHA doesn't have many friends," Pendergrass summarized. "They don't have many friends across the country, and they don't have many friends in Congress. . . . I found out that, yeah, you can [make changes]. It's sort of like taking a canoe and putting it on the bow of an aircraft carrier and changing the aircraft carrier's direction. It's not impossible, but it's highly improbable."

When Borwegen of the Service Employees union reflects on the PELs and OSHA standards in general, he thinks of an entirely different problem: "You have lots of chemical hazards, like glutaraldehyde, which OSHA does not have a PEL on. Cal/OSHA, fortunately, just issued one. There's a whole range of chemicals," Borwegen said. "Really, the only standard that is that important for our members is the bloodborne pathogens standard. OSHA has been largely silent on addressing the major hazards that our members face, whether it's workplace violence--37 percent of non-fatal assaults that occur in the United States occur in a health care workplace . . . [or] ergonomics--again, more CTS disorder injuries occur in the health care sector than any other sector in OSHA; OSHA has not dealt with that issue.

"In a nutshell, in my opinion, I consider OSHA as basically being dead, quite frankly," said Borwegen. "We have an agency now that's spending over $170 million on employer assistance. The inspections that are done are relatively meaningless for workers in the service sector because they don't have standards that apply."

Nursing homes always are near the top of the list for OSHA's targeting program, he noted. "The bottom line is, I have sympathy for the inspectors. They walk into these nursing homes, they look on the logs, and the biggest hazards are musculoskeletal, and workplace violence, and maybe some bloodborne pathogens. They really have nothing to cite. Maybe a couple of BBP citations. But then they usually cite for frayed electrical cords, eyewash stations. Which aren't insignificant, but they're basically walking around the elephant in the middle of the room. It must make them feel frustrated."

One sign of the sector's importance is AIHA's health care work group, which has really taken off, Borwegen said. "To me, this is the future of the profession. Health care is where the hazards are. It's where the economy is. The health care industry is still, in my opinion, decades behind other sectors of the economy."

"There's so much potential out there. You could make a lot more progress. Instead, we have OSHA inspectors who, on the way to the chemical plant where 12 people work, they drive by the hospital where 2,000 people work."

This article appeared in the January 2007 issue of Occupational Health & Safety.

This article originally appeared in the January 2007 issue of Occupational Health & Safety.