By: Thomas H. Welby Published: December 2009

Safety Policy: Where Is OSHA Enforcement Headed?

As OSHA nears its fortieth birthday, the agency and affected constituencies are taking stock of what OSHA and the OSH Act have accomplished, and the likely direction of enforcement efforts under the Obama Administration.

The OSH Act became law toward the end of the 30-year postwar period that followed World War II, and at the end of a decade that saw unprecedented initiatives intended to benefit minorities, working people and the disadvantaged.  The OSH Act was the product of bipartisan collaboration in Congress rarely if ever seen in recent years, and was signed into law by Republican President Richard M. Nixon.

Many changes in the economic and political landscape have come about since the 1970s.  I don’t think anyone would claim that OSHA has even approached the goals envisioned by its drafters.  Still, traumatic workplace deaths fell by half under OSHA (as the workforce grew by 60% and more), a substantial achievement.  And, through thick and thin, under Democratic and Republican administrations, since 1970 employee safety has always enjoyed at least some place on the national political agenda.

In the minus column, the OSH Act’s goal of assuring safe and healthful working conditions for American workers remains far from full realization.  Confirmation requires nothing more than pointing to the fact that, during OSHA’s first quarter-century, approximately 294,000 Americans died of traumatic injuries in the workplace.

Traumatic deaths, moreover, are just the tip of the iceberg:  most occupationally-related deaths are due to illness resulting from exposure to workplace chemicals or toxins.  They often become manifest years or decades after the exposure, and are seldom recorded in an employer’s OSHA 200 Log, or by the Bureau of Labor Statistics.1 

While some claim that OSHA trails only the IRS as America’s least-beloved federal agency, the lore concerning Kafkaesque regulations and over-zealous enforcement personnel is larded with propaganda.  What OSHA really does have in common with the IRS is the necessity to rely, for the most part, on voluntary compliance.  OSHA has never enjoyed ample staffing, or generous funding, but on the whole it does a creditable job of leveraging the limited assets that it has. Less than religious adherence to OSHA standards remains, certainly, widespread.  I have heard clients complain, sometimes rightly, about citations they believed lacked justification.  Nevertheless, while OSHA compliance is often fitful (and seldom enthusiastic) almost no one expresses contempt for the idea that employee safety is a good thing, or even that there is a government agency that works to promote it.

For several years, momentum has been gathering to increase the number of OSHA inspections and “SWR” (Serious, Willful and Repeat) citations, and to increase both monetary penalties generally, and criminal penalties — if only for “Willful” violations that result in employee fatalities.

One area which appears to be targeted for increased enforcement is OSHA’s (many) record-keeping requirements.  These are “low-hanging fruit” for OSHA inspectors (as few employers’ records are above reproach).  Moreover, brazen book-cooking is believed to be widespread, many employers keeping two sets of records (one for OSHA and the company’s Workers’ Comp insurer, and the other for its health clinics).

Locally, the word is that area OSHA offices are hiring considerable numbers of new enforcement personnel.  In our firm’s practice we are already seeing greater willingness on the part of compliance officers to cite OSHA violations as “Willful,” and less readiness to bargain such citations down to “Serious” ones.

We’re seeing also an uptick in the number of citations alleging violations of the many OSHA provisions requiring that employers train their forces to recognize and avoid health and safety hazards.  Not only is “failure to train” increasingly cited as an OSHA violation, but we detect at least some willingness on the part of OSHA to look to test the sufficiency of detail in an employer’s training program directed to a particular hazard (even where the extent of the regulatory mandate is uncertain).

I’ve always encouraged my clients and readers to train (and re-train) employees.  One reason I’m so adamant about repeat training is that it’s one thing to spend for a glossy, state-of-the-art company safety manual, but quite another to get your 21st century workforce to understand and observe even the fundamentals.

Critics of American educational and social institutions would argue that many young people have limited verbal skills, don’t comprehend complex instructions, and resist obeying them even if they do.

Also, employment relationships are in general more transient than they were circa 1970 when the OSH Act became law, and it’s not a given (certainly in the New York metro area) that a company’s workforce will even have a common language.

The Tower-of-Babel situation resulting from decades of high immigration levels obviously makes effective training more difficult.  An example of how pitiful the laws’ response to the diversity “explosion” has been is that defendants in certain kinds of civil litigation (notably, consumer collection and landlord-tenant matters) are required to be served with a bilingual summons, in both English and Spanish.

While such requirements are no doubt well-intentioned, it’s almost comical to see judges fretting over whether Gujurati, Yiddish and Fujian-speaking defendants have been duly served with papers written in Spanish.  And while it’s praiseworthy that some employers have paid to produce editions of their company safety manuals in Spanish, the last census counted 322 languages in daily use in American households.  Most of those linguistic groups are small and many are tiny, but if you’re running a substantial construction project in the NYC metro area, chances are that the workforce will include speakers of (in addition to English and Spanish) Korean, several varieties of Chinese, Haitian Creole, Urdu, Russian, Bengali, Arabic, Punjabi, Portuguese (European, Brazilian and African varieties) French (including its African varieties, plus Québecois) and others.2 

A further complication is that OSHA regulations have an extensive and exotic jargon.  Not only have many regulations technical aspects not readily understood by laymen, but there lots of acronyms, specialized terms and “buzz words” in OSHA parlance.  

Studies as to how much of the information imparted during the OSHA 10-hour course is really absorbed have yielded discouraging results.  One tested not rank-and-file construction workers, but students in a master’s program in construction management.  The proportion who achieved a grade of Satisfactory or better, after sitting through the OSHA 10-hour course, was only about twenty percent.  A less highly-educated group of Spanish speakers produced no test-takers achieving “Satisfactory” scores.

While training employees effectively is a problem you can’t avoid wrestling with, policy should take into account both the harsh economic climate and the difficulties (most of them due to larger forces, over which employers have no control) of getting bang-for-the-buck, true comprehension, from safety training outlays.  This, I believe, is not an opportune moment to abruptly raise the bar, or to instruct OSHA compliance officers to issue large numbers of citations to push the limits of how much detail must be taught, especially as to hazards that account for few injuries and fatalities.

As your paramount goal should be to minimize employee injuries, not exposure to citations, consider focusing on your field supervisors.  Whatever difficulties there be in bringing your entire workforce to an optimal level of OSHA knowledge, you can give your field supervisors the most comprehensive training you can afford, plus an unambiguous mandate to enforce safety rules.  While priorities vary according to trades, the perennial evils are falls, excavation cave-ins, “struck-by” hazards, and electrocutions. If OSHA is stepping up inspections, it’s just plain dumb to have anyone, ever, working aloft without fall protection, or in an unshored trench.  A review of OSHA record-keeping requirements applicable to your firm should be on your “To Do” list as well.

1 The National Institute of Occupational Safety and Health estimates that, for every worker killed in a sudden traumatic occurrence, as many as 15 may die each year from job-related exposure to chemicals and toxins.

2 Fears of retaliation among undocumented workers, or those from countries in which demands for a safe workplace are responded to not by OSHA inspectors but by dismissals (or by “death squads”) no doubt exert a degrading effect on OSHA compliance.  Also, given reports that U.S. counter-terrorism efforts are hampered by a lack of personnel fluent in just a handful of critical foreign languages, is it realistic that private employers — lacking Pentagon’s virtual blank check from the taxpayers — are expected to effectively teach OSHA to workers speaking (even if we ignore the smaller linguistic communities) dozens of different languages?

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