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Published: January, 2007; Vol 3, Num 8

 

Will OSHA Get Back on Track in 2007-08?

OSHA, under the Bush Administration, has been sharply criticized by LIUNA, the Labor movement and non-profit organizations such as Public Citizen for its failure to promulgate and enforce safety and health standards, particularly with regard to the construction industry.  After the fall mid-term elections produced a Democratic Congress for the first time in twelve years, these criticisms could translate into OSHA reform.

Rulemaking

The publication of OSHA’s rulemaking agenda in the December 11 Federal Register confirms past criticism (see OSHA Rulemaking Grinding to a Halt). For 2007, only one rule is slated for final action while only two others will reach the Notice of Proposed Rule Making (NPRM) stage.  It should be noted that once a NPRM is published, public hearings are held, followed by legal briefs. A final rule is still normally two to three years off.

The NPRM for Employer Payment for Personal Protective Equipment was published in 1999 but has been stalled ever since. At issue is the obligation of employers to pay for the personal protective equipment (PPE) used by their employees. Claiming PPE is a “tool of the trade,” some industry groups deny any employer obligation to pay for it. 

Responding to this assertion when OSHA reopened the record for further comment in 2004 (see OSHA Revisits: Who Should Pay for PPE?), LIUNA General Secretary-Treasurer and LHSFNA Labor Co-Chairman Armand E. Sabitoni said, “The Occupational Safety and Health Act was designed to require employers to provide workplaces free of recognized hazards. If OSHA now requires workers to pay for their own PPE, it is shifting the burden from employers to workers. This is the antithesis of the intention of the original regulation and will result in great inconsistencies in worker protection.  This hurts contractors and workers alike.”

In most union workplaces the question of who pays for what PPE is well-established by tradition or is spelled out in the contract. However, in the absence of direction from OSHA, nonunion employers assert whatever they wish, often leaving it to their workers to provide their own protection. Inevitably, this practice undermines overall safety on these worksites.

Now, two years after the record was reopened, OSHA apparently is nearing a decision. Final Action on the PPE rule is scheduled for May of this year.

Only three other construction-related rules are advancing this year, though final action on any of them is still years away.

After a long delay, the NPRM to update the crane and derrick standard is expected in the fall. OSHA initiated review in 2002 after industry stakeholders asked the agency, in light of technological developments, to update the standard, specifically requesting that negotiated rulemaking be employed to facilitate the process. A committee was established which met in an accelerated process and issued its consensus proposal in 2004. Unfortunately, it has taken OSHA three more years to ready its NPRM, which is now scheduled for October.

Similarly, a confined space standard in construction has been on OSHA’s agenda since 1993 when the agency adopted a general industry standard that excluded construction. At that time, OSHA reached a settlement agreement with the United Steel Workers that required it to develop and issue a proposed rule for construction. Fourteen years later, that NPRM is now expected in February.

A proposed silica standard appears to be making slight headway, though when a NPRM might be issued is far from clear. OSHA acknowledges that the permissible exposure limit (PEL) for silica in construction – established in 1962 based on technology that has long been considered obsolete – is outdated but that substantial numbers of fatalities and disabling illness continue as a result of excessive exposure. While non-regulatory efforts to address the problem were launched as early as 1997, the agency waited until 2003 to initiate rulemaking. That year, a draft rule was reviewed by the Small Business Regulatory Enforcement and Fairness Act (SBREFA) committee, and subsequently the agency initiated a peer review of its risk assessment. That assessment is now slated for completion in April, but OSHA has not indicated how or how fast it will move after that.

One rule that will not get consideration this year is the long-awaited Hearing Conservation Program for Construction Workers. OSHA mandated a comprehensive hearing conservation program for noise-exposed workers in general industry in 1983. Despite ample evidence that hearing loss is epidemic in construction, the agency waited until 2002 to issue an advanced notice of proposed rulemaking (ANPRM). The comment period for that notice expired in 2002, and stakeholder meetings were convened in 2004. Nevertheless, the date of the agency’s next action officially remains “undetermined.”

Enforcement

Unfortunately, even the rules that OSHA has already adopted are poorly enforced. Part of the problem is an incoherent methodology (see OSHA Targeting Struggles for Coherence, Method).

Another part may be an insufficient number of inspectors. In recent years, OSHA’s compliance budget has been set to ensure the same number of annual worksite inspections as were made in 2003. However, the number of workplace fatalities and serious injuries continues to creep upward. Some commentators believe the does not have enough inspectors on the job. According to the International Labor Office (a part of the United Nations), an “industrial market” nation should have one inspector for every 10,000 workers. According to OSHA, however, state and federal inspectors in the U.S. number about 2,500, which is only one for every 70,000 workers.

A third problem in enforcement is a general lack of serious penalties, even for willful regulatory infractions that result in worker deaths. Under OSHA, such failures are treated as misdemeanors and are seldom prosecuted (see Stronger OSHA Enforcement Proposed by Kennedy, Pursued in Michigan).

Hispanic Workforce

The problems of health and safety in construction and other areas of the North American economy are compounded by accelerating changes in the ethnic composition of the workforce. More and more workers are of Hispanic backgrounds, immigrants from Mexico and other Latin American nations. The language barrier and widespread status issues (legal/illegal) make it easier for unscrupulous employers to take advantage these workers, particularly in the non-union sectors of the economy.

Over the last decade, the proportion of construction fatalities that are Hispanic has been steadily rising. Such aggregate data is amplified by sharp exposures of the problem, such as occurred this fall in New York City. Amid a building boom, the city witnessed a 61 percent increase in fatal construction incidents during the 12 month period that ended on September 30. Falls from suspended scaffolds were, by far, the largest portion of the deaths – 17 out of 29. Moreover, 21 of the deaths involved workers who were immigrants and 24 involved non-union companies.

While OSHA has acknowledged the problem of mounting Hispanic deaths and injuries, the agency has yet to find a way to address it. It has set up a Spanish language website and telephone hotline. According to OSHA Director Edwin G. Foulke, Jr., speaking to a reporter for the New York Times last November, the agency is “going to more pictorial-type information [that] will highlight what the hazard is and what is the proper way to avoid these hazards.”

Congress could improve the lot of immigrant workers by enacting immigration reform that provides some kind of legal status and protection to immigrants so they can better risk standing up for safety on the job. However, it remains unclear whether Congress will tackle immigration reform in the coming session. Another option for Congress is adoption of improved protections for whistleblowers. Senator Ted Kennedy (D – MA) included such protections in a bill he submitted in the last Congress.

Whatever Congress may do to address the specific plight of immigrant workers, it can mitigate on-the-job dangers for all workers in the United States by spurring OSHA rulemaking and enforcement. Ultimately, protecting all workers is the agency’s primary responsibility. As Sabitoni says, “It’s time to get OSHA back on track protecting our members in the workplace.”

[Steve Clark]