OSHA at Forty: New Strategies for Old Challenges

Assistant Secretary of Labor for Occupational Safety and Health David Michaels has sent a letter to Occupational Safety and Health Administration staff laying out a vision for how OSHA can do a better job of protecting worker health and safety over the coming years. In "OSHA at Forty: New Challenges and New Directions," Michaels gives a quick overview of where the agency stands four decades after its founding:

OSHA has had a huge, positive impact on the country. Fatality and injury rates have dropped markedly since OSHA began in 1971. Enforcement of OSHA's standards for asbestos, benzene, lead, bloodborne pathogens and other health hazards has prevented countless cases of work-related disease. Dedicated OSHA staff has done excellent work, even during periods of stagnant budgets and political leadership that didn't value strong regulation.

There is no doubt that OSHA has saved thousands of lives. But far too many preventable injuries and fatalities continue to occur. Millions of workers are exposed to levels of chemicals that increase their future risk of disease.

Michaels also highlights some of the significant challenges that are beyond the control of agency personnel: OSHA has only 2,000 inspectors responsible for the health and safety of 130 million workers at seven million worksites; the fines they're permitted to issue are too small to have an adequate deterrent effect; weak legislation hampers OSHA's efforts to protect whistleblowers from retaliation; and a slow and resource-intensive standard-setting process means that OSHA has occupational exposure standards for only a small percentage of chemicals used in US workplaces, and most of those are based on out-of-date science.

I worked for David Michaels at George Washington University before he was confirmed as head of OSHA in December 2009, and I know that he regularly critiqued the weak tools that the federal government provides for protecting worker health and safety. He hasn't stopped pointing out the barriers OSHA faces - just last month, his testimony before the House Education and Labor Committee emphasized the small size of OSHA maximum penalties compared to those that EPA and other agencies can issue. For instance, a sulfuric-acid tank explosion at a Delaware oil refinery killed worker Jeff Davis, but the OSHA penalty was just $175,000; for the same incident, EPA assessed a $10 million penalty under the Clean Water Act. ( The Protecting America's Workers Act, introduced in the House by Representative Lynn Woolsey, would increase penalties for OSHA violations.)

Still, now that he's heading OSHA, Michaels is doing what we'd expect him to do and focusing on how OSHA can use the tools it has to improve workplace health and safety as much as it can. Most of his letter is devoted to ways in which OSHA can leverage its current limited resources to have more of an impact on workers and employers. Specifically, he highlights nine areas on which the agency will focus, under an overarching approach laid out by Secretary of Labor Hilda Solis:

1. Stronger Enforcement: Some Employers Need Incentives to Do the Right Thing
2. Ensure Workers Have a Voice
3. Refocus and Strengthen Our Compliance Assistance Programs
4. Change Workplace Culture: Employers Must "Find and Fix" Workplace Hazards
5. Develop lnnovative Approaches to Addressing New (and Old) Hazards: Improve Intra-Agency Collaboration
6. Improve and Modernize Workplace Injury and Illness Tracking: Strengthen our Focus on Accurate Recordkeeping
7. Strengthen OSHA's Use of Science
8. Strengthen State OSHA Plans
9. Conduct Our Work with Transparency, Openness, Integrity and Humility

Michaels describes overarching problems that contribute to unsafe workplaces. He notes that right now, employers who fail to invest in workplace health and safety know the chances of their workplaces getting inspected are slim. Many employers discourage injury reporting, whether "inadvertently or by design." Because existing standards are inadequate for addressing the many hazards today's workers face, employers who focus solely on obeying these standards may not be providing safe and healthy workplaces. Employers need to shift to a paradigm of identifying hazards in their workplaces and fixing them, whether or not a specific standard for them exists.

To solve these problems, Michaels emphasizes that workers - particularly those who are most vulnerable to abuse - and other stakeholders must become more involved in workplace health and safety efforts. (As the complicance assistance section notes, OSHA already works directly with many employers, and will continue to do so.) He specifies that worker participation is a necessary component of compliance assistance programs, and states that OSHA will produce more training and compliance-assistance materials that are accessible to workers who have limited technical backgrounds or limited English literacy. He also writes:

Our compliance officers will assure that when training is required by OSHA standards, it is conducted in a language that workers can understand. And we will strive to ensure that in every inspection, our compliance officers talk to workers privately and confidentially in a language they speak.

In terms of other stakeholders, Michaels states, "We will strengthen our commitment to regular, meaningful contact with the families of injured workers." He also notes that regional and area offices are strengthening their relationships with unions, community groups, and faith-based organizations both in order to reach vulnerable populations of workers and to identify workplaces where workers may experience an increased risk of illness or injury.

The letter contains a few concrete commitments that we can use to monitor OSHA's progress, including statements that OSHA will:

• Hire additional compliance officers and shift others from compliance assistance to enforcements
• Issue hard-hitting press releases explaining why a particular employer was cited, as part of a "regulation by shaming" effort
• Develop a proposed rule mandating workplace injury and illness prevention programs (they've begun stakeholder meetings to do this)
• Propose new regulations "to bring OSHA's reporting requirements into the 21st century" (this will be under the leadership of the Directorate of Evaluation and Analysis)

The press releases aim to increase the penalties for employers who are caught in OSHA violations - the fine may not be high, but they can also pay a price in terms of negative publicity. OSHA is already implementing this strategy. The recent agency press releases on proposed fines for the grain cooperative Cooperative Plus Inc. and companies involved in the Kleen Energy power plant explosion included mentions of letters being sent by OSHA to employers in the grain and power plant industries warning of the hazards. The letter to grain-industry employers (which I wrote about here) was accompanied by a copy of OSHA's Grain Handling Facilities standard and included a notification that the agency has its eye on grain facilities:

Just in the last 10 months, OSHA has issued three large penalty citations to grain elevator operators for these very hazards.

... If any employee dies in a grain storage facility, in addition to any civil penalties proposed, OSHA will consider referring the incident to the Department of Justice for criminal prosecution pursuant to the criminal provisions of the Occupational Safety and Health Act of 1970.

The letter also includes some steps that are not solutions, but efforts to identify solutions:

• An internal task force will "develop ways to issue standards more quickly [and] explore alternatives to hazard-by-hazard standard setting."
• The agency has "begun a comprehensive review of our Whistleblower Protection Program, in order to identify ways to strengthen it."
• The agency is engaging stakeholders to examine how to improve injury and illness recordkeeping.
• Under the leadership of the Directorate of Technical Support and Emergency Management, OSHA will "identify ways to address new and emerging hazards quickly."

We'll have to check back in several more months to see whether these efforts have produced any concrete recommendations or action plans to address the problems. In particular, strengthening the whistleblower protection program is likely to require some significant changes, and not just from within OSHA - see Celeste's post for details.

Of course, this letter is not primarily intended as an opportunity for the public to critique Michaels' plans for OSHA in the coming years. It's a letter to OSHA staff, and Michaels closes with this invitation to all of OSHA:

I've been appointed to lead the OSHA, but you all do the work. Our success, yours and mine, are intertwined. In this spirit, I hope you consider this letter as part of an ongoing conversation. Please send your thoughts and comments to PublicMichaelsDavid@dol.gov. I may not respond to all the notes I receive, but I promise to read what you send because I greatly value your thoughts, your commitment and your dedication to OSHA and our shared mission.

I hope OSHA employees will take Michaels up on his invitation, and that he'll be able to further hone his strategies and action plans based on the their feedback. In the meantime, what does everyone think about Michaels' plans? Does this letter demonstrate the appropriate level of ambition? Are these steps the best ways to leverage the agency's limited resources?