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State OSHAs under the Microscope
By Scott Schneider
Last month, in the wake of a dozen construction deaths on the Las Vegas strip in 2007-2008 and an investigation of Nevada’s program that revealed lapsed standards enforcement, federal OSHA announced the results of its review of the nation’s other state-run OSHA programs.
As LIUNA General Secretary-Treasurer and LHSFNA Labor Co-Chairman Armand E. Sabitoni explains, “With financial support from the federal government, over half of the states run their own workplace safety and health programs – an option afforded by the Occupational Safety and Health Act of 1970, which created OSHA. The law, however, requires state programs to be as ‘equally effective’ as the federal program. For the past 40 years, state and federal authorities have struggled over what, exactly, that phrase means.”
State OSHA programs vary from state to state, evolving as the times and state governments change. Most states choose to adopt new federal regulations verbatim (indeed, states must adopt “equally effective” rules within six months of the promulgation of any new federal OSHA rule). But some states adopt standards that go way beyond what federal OSHA requires. California, for example, has a new regulation to prevent heat stress, which federal OSHA lacks. Washington State covers construction workers with its hearing conservation regulation, whereas they are not covered by federal OSHA. Michigan OSHA has specific rules for work zone safety. North Carolina has a standard to cover the hazards of erecting communication towers. In many ways, the states are laboratories where new standards are set and tested, while standard setting by federal OSHA is slow, handcuffed by Congress, the White House and national politics.
According to Sabitoni, “The key issue in ‘equally effective’ is how states, relative to the federal government, tackle enforcement.” Federal OSHA has very few inspectors and has difficulty targeting its inspections. Moreover, before the current administration, OSHA too often bargained away or discounted fines such that the average penalty for a serious violation (one that is likely to cause serious injuries or death) was only $1,000. Unfortunately, enforcement is even weaker in some states.
Funding is part of the problem. Even with the federal contribution, states may have difficulty funding their OSHA program well enough to be “equally effective.” Moreover, in recent years, officials in some states – facing severe budget shortfalls – have cut agencies to the bone, and they now lack adequate staff to do the job effectively. For these reasons and others, despite sometimes flagrant and repeat violations of OSHA standards, companies in some states have fewer concerns now about inspections or fines.
Under previous Administrations which wanted to leave the states alone, reviews of state programs to determine if they were equally effective devolved into a paper shuffle in which federal officials looked at the paperwork submitted by the states and checked off if it was up to snuff. They did not go to the states to investigate programs and their enforcement.
In the wake of the Pulitzer Prize-winning exposure of Nevada’s failed safety oversight and then federal OSHA’s confirmatory investigation, the agency committed to a thorough review of all state programs. OSHA concluded that most state programs were adequate, although all had room for improvement. In a few cases, OSHA took more action. Hawaii and Utah were the states singled out as having “significant deficiencies.” In the case of Hawaii, OSHA proposed “concurrent jurisdiction,” meaning that it will conduct its own inspections alongside Hawaii OSHA.
This review has been long overdue, yet some states remain opposed to federal OSHA’s new emphasis on enforcement. Further political conflict may be in the offering. The review, however, is likely to produce significant improvements in state OSHA programs.
“Many states do a good job and are working beyond the minimum that federal OSHA requires,” says Sabitoni, “but the ones that do not run effective programs must improve so that all workers, no matter where they live and work, are afforded the same protection against workplace hazards.”
[Scott Schneider is the LHSFNA’s Director of Occupational Safety and Health.]