Burning Down the House

Forty years on, where are OSHA's friends? When painful budget cuts are threatening and every proposed rule is derided as a "job killer" -- a particularly poor word choice when the context is American occupational safety, still no beacon for the world -- there seem to be few who will stand up for this agency.

Something's wrong when the biggest safety issue all of us can agree on is that texting while driving is bad. And I submit that something's wrong when the safety and health community watches congressional committees and employer groups hammer OSHA for running amok with its lust for new regulations.

OSHA's Dr. David Michaels and U.S. Labor Secretary Hilda Solis have defended the safety agencies well before Congress, but until March 16, I feared our community's members and leaders were sitting this one out. ASSE proved me wrong that day, as you’ll see from a letter I’ll discuss later in this article. (Terence O'Sullivan, general president of the Laborers' International Union of North America, also spoke out against the "job killing" line last month.) First, here's what Solis and Michaels are saying:

In a long presentation at a Feb. 16 hearing to the U.S. House Committee on Education & the Workforce, Solis stood her ground both on enforcement and against the charge that OSHA is all stick and no carrot.

She listed several cooperative programs and outreach efforts, saying they "are providing the agency with information on safety and health practices and improve our ability to communicate with industry and hard-to-reach workers. As a result, OSHA is able to operate more effectively and responsively. In addition to the comprehensive economic feasibility reviews we conduct, OSHA has taken several steps in recent weeks to enhance our dialogue with small business about the impact of OSHA regulations. For example, in response to the concerns raised by the small business community to OSHA's proposal to reinstate an additional step for recording musculoskeletal disorders on the OSHA injury logs, OSHA temporarily withdrew the proposal from Office of Management and Budget (OMB) review, and it is now working with the Small Business Administration's Office of Advocacy to meet with small business owners and other stakeholders to discuss their concerns.

"OSHA's focus -- protecting workers on the job -- will never change, but we are open to talking to all who have good ideas about how to get there," Solis said in her remarks. "While we work with the business community on minimizing the regulatory burden, I want you all to know that OSHA will continue to aggressively enforce our safety and health laws against those employers who refuse to play by the rules and who put profits above their workers' lives. Often, strong enforcement is the only option to get the attention of recalcitrant employers. Moreover, strong enforcement protects business by creating a fair market for them to compete in. The vast majority of employers in our nation care deeply for their employees and spend their hard-earned revenue on running a safe workplace. We cannot sit by while they are forced to compete with employers who unlawfully cut corners on safety."

Michaels has answered the "job killing" canard several times. His March 11 op-ed posted by The Wall Street Journal made the case beautifully.

"As a scientist, I look for evidence to get at the truth of things," he wrote. "And there is clear evidence that OSHA's common-sense regulations don't kill jobs; they stop jobs from killing workers. Better yet, our regulations don't just prevent worker injuries and illnesses; they also drive technological innovation, making industries more competitive."

He then cited what he called "the most comprehensive study to date on the economic impact of OSHA regulation." Prepared by Congress' Office of Technology Assessment, dated September 1995, and available here, it says the fear by many employers that complying with a new regulation will be too expensive is wrong:

"It appears from the sample of existing standards OTA examined for this report, that the agency has generally performed this task with workable accuracy -- that is, standards determined by OSHA to be 'feasible' in the course of its analytical deliberations have usually proved to be so when industries took the necessary steps to comply. (However, a few failures in this respect were evident in the cases, and point to some analytical deficiencies the agency should consider in future work.)

"Nonetheless, the agency's demonstrations of feasibility are often based on conservative assumptions about what compliance responses will predominate across affected industries. As a result, there are often sizable disparities between OSHA's rulemaking projections of control technology adoption patterns, compliance spending, and other economic impacts, and what actually happens when affected industries respond to an enacted standard. In a good number of the cases that OTA examined, the actual compliance response that was observed included advanced or innovative control measures that had not been emphasized in the rulemaking analyses, and the actual cost burden proved to be considerably less than what OSHA had estimated."

Michaels faced the same criticisms March 16 when testifying as part of a panel during a hearing of the U.S. House Oversight and Government Reform Subcommittee on Regulatory Affairs, Stimulus Oversight, and Government Spending. You can read his testimony here and watch it here. The video lasts more than an hour, and Michaels answers many questions about proposed and withdrawn regulations during the final 15 minutes.

ASSE President Darryl Hill, Ph.D., CSP, addressed his letter to U.S. Rep. Dennis Rehberg, who chairs the House Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies. Hill wrote to argue against a proposed 17.7 percent cut in OSHA's funding. He noted ASSE has opposed several recent OSHA initiatives:

"As with any Administration, ASSE takes issue with what the current OSHA leadership does when it is appropriate. In recent months we have opposed the way OSHA proposed to change the rules for its small business consultation programs. We could not support its interpretation of feasibility for hearing protection engineering controls. We opposed OSHA's FY 2011 proposal not to fund the Voluntary Protection Program. We have supported the agency’s rulemaking to develop an injury and illness prevention program not to rubber stamp the effort but to encourage a way of undertaking its responsibilities that we are convinced will be better for employers as well as employees by encouraging risk-based safety and health management over simply catching employers who don't meet its proscriptive standards. Many of our members share their employers' concern that this Administration's increased focus on enforcement over cooperative efforts is unwarranted.

"Any disagreement with specific issues, though, does not take away from our larger resolve to make sure that OSHA is there to encourage employers' ongoing commitment to worker safety and health. Contrary to much of the political rhetoric surrounding OSHA, a less effective OSHA will not promote more jobs. For example, a $3 million reduction in OSHA's standard-setting resources will only delay the need to bring this nation’s hazard communications in line with the rest of the world, allowing our companies to better meet one set of global standards, helping them be more competitive in the world marketplace. Reducing by $41.3 million OSHA's enforcement capability will have little effect on most of this nation's employers who already are committed to safety and health without having to be told by OSHA to do so because they know it is good for their business as well as their workers. Less enforcement will help keep OSHA from targeting their competitors who are not committed to safety and health and, so, compete unfairly with them. Cutting $14.9 million, or 15%, of OSHA's statutory commitment to state programs will only drive some state plans out of operation. Our members typically find that state plans are more flexible and more willing to work with employers cooperatively than federal OSHA, which would take over in a state if a state program were disbanded.

"ASSE is not against any federal agency playing a reasonable role in helping meet Congress' desire to hold the line in federal spending. Cutting OSHA nearly 18 percent is not a reasonable request."

Good points. I'm glad he wrote the letter.

Will it have any effect? I expect the partisan divide in the 112th Congress to continue, with OSHA getting less money to operate and constantly being called before committees to defend itself. Republicans and Democrats in Congress are poles apart on OSHA's spending, appropriations, and its role in promoting safety and enforcing compliance – and so are America's safety professionals, I believe.

2011 is the year when we should be celebrating how far we've come since the Triangle fire and ASSE's creation a century ago. Our workplaces, our PPE, our cars and airplanes and homes and public spaces are much safer than they were in 1970. Can we finally put to rest the question of whether OSHA is evil?

Posted by Jerry Laws on Apr 01, 2011