By: Thomas H. Welby Published: September 2009

Safety Policy: Check Out OSHA Compliance Assistance

As OSHA nears its 40th birthday, most Americans are too young to recall that this program, today seen as a familiar part of the landscape, was enacted only after a pitched three-year battle, following skirmishes and forays into the area of federal regulation of workplace conditions reaching back to the later years of the 19th century.

The years preceding the enactment of OSHA, the mid-1960s, were a propitious time for renewed federal efforts.  Not only was Congress considering, and passing, civil rights and environmental laws which would have been unthinkable just a few years before, but workplace conditions of the time served as a spur to the effort.

That is to say, America was still an industrial economy in the 1960s, and the long-extant dangers of the belts-pulleys-and-gears technology of the early 20th century were being joined by an array of more newfangled (largely chemical) technologies and processes that posed considerable risks to worker safety and health.

A 1965 Public Health Service report stressing the links between chemical exposure and cancer, the disclosure in 1967 of a shockingly high incidence of lung cancer among uranium miners dating back more than two decades, and a West Virginia mine explosion in 1968 that killed 78 led President Johnson to declare that the time had come “to do something about the effect of a workingman’s job on his health.”  As of 1968, in what was obviously a much smaller workforce than today, more than 14,000 workers were killed on the job annually, and more than 2.2 million injured.

Paradoxically, the famously persuasive President Johnson failed in 1968 to win passage of an ambitious proposal for federal health and safety regulation in the workplace.  That initiative fell victim to the president’s waning influence, due to the race riots and antiwar controversies of the day.

Some may be surprised to learn that although, to be sure, the proposals made by his successor were somewhat less labor-friendly than LBJ’s failed proposal, Richard M. Nixon had promised action on the issue while campaigning for the White House in 1968, and after taking office, he carried through on that promise.

The U.S. Chamber of Congress, representing industry, had hoped to limit actual penalties under any workplace safety legislation to willful, flagrant violators, and to prevent implementation of safety standards more demanding than “consensus” standards developed by industry groups.

One issue dear to both sides was that organized labor wanted authority over any new regime wholly under the control of the Department of Labor, while industry was flatly opposed to that.  The Department of Labor also had a “turf battle” with the Department of Health, Education and Welfare.

While the Democrat-controlled Congress ultimately gave labor much of what it wanted, one compromise divided authority, with a newly-created agency within the Department of Labor setting the standards and carrying out inspections, and the OSH Review Commission acting as a first-level appellate tribunal for parties disagreeing with administrative law judge decisions.

While noting some reservations, President Nixon signed the Occupational Safety and Health Act of 1970, and joined with both industry and labor in praising it.  Years afterward, as American politics tilted to the right, and labor softened its demands hoping to slow the rush of manufacturing jobs offshore, at times OSHA drew fire from liberal and advocacy groups for not enforcing standards stringently enough.

Despite some significant impairment in its protective mission as a result of companies abandoning the American labor market to manufacture goods abroad, OSHA has achieved considerable success.

The OSHA leadership has also exhibited some resourcefulness in deploying limited resources to achieve widespread compliance with its standards and lower rates of injury and illness from workplace conditions.

In August, results of an analysis of federal safety data by the Associated General Contractors of America showed a drop in the construction industry fatality rate over the 10-year period from 1998 to 2008 of 25% — from 12.9 deaths per 100,000 construction workers to 9.6.  The gross number of fatalities, despite the considerable grown of the market, fell from 1,171 in 1998 to 969 in 2008 (a drop of 17%).

During the same 10-year period, the number of “time missed” injuries in construction fell 42% from 3.3 per hundred to 1.9.

It’s probably no coincidence that the period in which there occurred such heartening reductions in construction-workplace injury and death corresponds to the inception of the “collaborative safety oversight” approach introduced by OSHA in the late 1990s.

Recognizing its limitations as the “safety police,” OSHA over the past 10 years has devised a number of programs, which vary in their scope and their details, but all have in common a voluntary collaboration between employers and OSHA.  To use as an example just one such program, the “Strategic Partnership Program for Worker Safety and Health,” the Partnership aims at getting a formal agreement with an employer (or, commonly, a group of employers), workers, and worker representatives, to identify the most serious workplace hazards, develop workplace or site-specific safety and health management systems, share resources, and identify and implement effective ways to reduce worker injuries, illnesses, and deaths.

“Partnerships” are most popular with small businesses (50 employees or less) and many construction employers and construction-related trade unions, have  participated.

If you check out the osha.gov website, you will see details concerning a variety of “compliance assistance” programs as well as a number of success stories from around the country.

Certainly, much can be said in favor of inviting active technical assistance from OSHA, and demonstrating to both OSHA and your workforce that as an employer you don’t see OSHA as a mere nuisance and ducking citations as your #1 safety priority.

The approach, to be sure, has its critics, notably safety advocates who complain that “compliance assistance” is essentially a pro-employer, anti-enforcement device, whereby companies (mostly larger companies with good safety programs and low accident rates already) consume OSHA staff members’ scarce man-hours that might better be spent fining, and finding, violators than in “preaching to the choir” in programs that lack enforcement “teeth.”

“Compliance assistance” first caught on in the Mining Safety and Health Administration and, in the wake of the Crandall Canyon mine disaster in 2007, critics savaged the concept as a means of avoiding confrontation with well-connected mine owners (such as the one in that case, whose direct and indirect contributions of almost $1 million to Republican candidates were seen as having won cursory MHSA review of the mining plan alleged to have led to the fatalities).

Certainly, it cannot be denied that, as argued by a former (Clinton-era) senior MHSA official that “every minute you spend on compliance assistance is a minute you’re not spending on enforcement.”

On the other hand, it’s probably unrealistic, and perhaps too cynical, to suppose that it was chiefly the fear of stern enforcement that (before “compliance assistance”) motivated employers to comply with OSHA.  Most employers do care about employee health and safety — and, as monetary penalties for violations have always been modest (at least for non-“Willful” violations) it could hardly be that it was mainly the fear of such penalties that motivated OSHA compliance prior to 1998.

Nevertheless (and allowing that the mining industry may have issues that don’t apply to general industry or to construction) the utility of “compliance assistance,” in the universe of companies regulated by OSHA, must ultimately be measured by results.  While determining the exact extent to which “compliance assistance” may be credited with falling accident rates is not an easy task, if the growth of the approach coincides with sharp drops in safety incidents, it’s likely a good idea.

In terms of your own safety strategy, trying out a “Partnership” or other voluntary program may be worthwhile, following which you will make your own determination as to whether programs of this type help keep your workers alive and safe.

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