The Split Over Workplace Safety

Providing a safe working environment is crucial to saving lives and saving loss costs. But what works best to motivate business owners and management to seal the cracks in unsafe working conditions? And what role does the government play in reducing workplace injuries today?

Since 1970 — the year the law creating the Occupational Health and Safety Administration, known as OSHA, was signed by President Richard Nixon — the federal oversight agency’s mission has been to assure safe and healthful working conditions for working men and women. OSHA sets and enforces standards that businesses must follow and provides training, outreach, education and assistance to employers nationwide.

While OSHA’s standards have made working conditions in America safer than 40 years ago, some question the role OSHA should play in the workplace now.

Some believe OSHA should focus primarily on promulgating new regulations, performing inspections, and levying penalties for infractions.

But others believe OSHA should instead focus on using its resources and knowledge to provide consulting services to businesses and partner with them to reduce workplace injuries and deaths.

On this continuum, Marc Freedman, executive director of Labor Law Policy at the U.S. Chamber of Commerce in Washington, D.C., gravitates toward the education and partnerships side. He believes that there are three fundamental problems with an OSHA focused on regulations, performing inspections and levying penalties.

“First, if you look at what drives workplace safety and what motivates employers to get serious about it, it is not OSHA,” he states. “It is workers’ compensation and other insurance premiums, the interruption to production, and other inefficiencies.”

In other words, according to Freedman, employers are continually trying to reduce costs. Fear of OSHA inspections and fines are near the bottom of the list of concerns.

Second, Freedman says that when he talks with employers who are serious and proactive about workplace safety, they aren’t concerned about OSHA. These employers are usually doing far beyond what OSHA requires.

“Third, if you go into the small business arena, where employers are the least likely to see OSHA inspections, the question of OSHA’s impact becomes even less,” he maintains.

Difference in Employers

Freedman also believes that there are three types of employers.

“A small percentage of employers don’t care about safety and aren’t going to be motivated by OSHA fines or anything else,” he states. “We are not here to defend them. These employers are always going to exist, and we support legitimate enforcement activity that targets them.”

A second group of employers wants to do the right thing, knows how to do the right thing, and is doing the right thing.

A third group is composed of employers who want to do the right thing, but don’t know what to do, how to do it, or where to turn.

Freedman believes that it is this third group of employers that OSHA should concentrate on.

“I think OSHA’s most useful role is to provide employers with a base level of information and a certain structure of what is required of them,” Freedman says. “If employers have nowhere else to turn for workplace safety issues, they should be able to turn to OSHA.”

OSHA says it is well aware that the vast majority of employers want to do the right thing, but many need information and assistance to do so.

That’s one reason why OSHA’s compliance assistance program works to ensure that employers and employees understand workplace hazards and how to prevent them, an OSHA spokesperson with the Department of Labor’s public affairs office told Claims Journal.

According to OSHA, its “compliance assistance activities” include outreach, consultation, training, grant programs and cooperative programs and its On-Site Consultation Program is designed to provide “professional, high-quality individualized assistance to small businesses at no cost.”

The consulting service promises free and confidential workplace safety and health evaluations and advice to small businesses with 250 or fewer employees and is separate and independent from OSHA’s enforcement program.

OSHA says its compliance assistance programs are run by the states and receive 90 percent of their funding from OSHA. The On-Site Consultation Program is currently funded at $54.8 million, but the fiscal year 2012 budget includes a $1 million increase.

Freedman believes that the employers who need and want help, but don’t know where to turn, are where the greatest gains in workplace safety are going to be found. In a lot of cases, these are small businesses that don’t have the resources to hire consultants or safety managers.

Not Doing Enough

Despite OSHA’s compliance assistance program effort, in Freedman’s opinion OSHA may not be doing a good enough job.

“There are questions about how well they fill that role and how concerned they are about filling that role, compared with carrying a big stick and coming down hard on wayward employers,” he said. “The impression I have from employers these days is that OSHA is far more focused on the enforcement side and considerably less on providing guidance and information.”

Freedman believes that OSHA would say it is providing guidance and information by creating examples from its enforcement activities. “They want to fine employers as much as they can and scare employers into compliance,” he says. “They don’t believe that employers take workplace safety seriously, and that enforcement is the only thing that will get their attention.”

OSHA maintains that the primary purpose of its enforcement program is deterrence but says its enforcement program specifically targets the most dangerous workplaces and the most recalcitrant employers. OSHA is “not just in the business of issuing and enforcing standards,” the spokesperson told Claims Journal.

Even so, there are some analysts that view OSHA’s historical enforcement efforts as the primary reason workplaces are safer today.

Ross Eisenbrey, vice president of the Economic Policy Institute in Washington, D.C., sees an OSHA environment with strong regulations, inspections and penalties, plus some education as a positive.

“People forget how dangerous U.S. workplaces were 40 years ago when OSHA came into existence,” Eisenbrey says. “It is hard to believe that 14,000 people were being killed in workplace accidents each year. Now, it is down to under 5,000, and our workforce has almost doubled since that time.”

If there had been no change, according to Eisenbrey, fatalities would now be over 25,000. “This is a success that we should celebrate,” he said.

While some people suggest the reduction in deaths can be attributed to numerous manufacturing jobs going overseas in recent decades, Eisenbrey says this is not so. “The manufacturing fatality rate is actually pretty low,” he says. “Construction rates are much higher, and these jobs haven’t gone overseas.”

Despite the reduction in workplace deaths, according to Eisenbrey, there are still many people being “killed in stupid and very preventable ways.” Examples involve having employees work in trenches that are too deep and unshored. “I can’t understand how any employer who has been in the business more than 30 minutes would do this,” he states.

To deal with this problem, Eisenbrey believes, OSHA needs to have stronger penalties.

“There are still cases where workers are being killed because employers are engaged in serious violations, but the penalties may only be a couple of thousand dollars.” He doesn’t believe that this sends a strong signal to employers. Penalties haven’t been adjusted since 1990, not even for inflation, so the maximum for a repeat or willful violation is still $70,000, according to the Eisenbrey. “As a result, there are still some large corporations that pay very little attention to health and safety,” he claims. “Bigger penalties would be a big help in these situations.”

Attention Grabber

Wayne Gray, professor and chair of the economics department at Clark University in Worcester, Mass., is also a big believer in an OSHA with stiff regulations, inspections and penalties. He agrees nothing puts the attention on workplace safety issues like writing a check.

“One reason for OSHA to exist is that machinery and equipment tend to be safer these days,” he states. “That is, there are safety features on machinery that were not in existence until OSHA came into existence.”

Gray has conducted research over the years examining the impact of OSHA inspections on injuries and exposures and the effectiveness of OSHA’s enforcement program.

“I have found that inspections that find something wrong and impose penalties tend to be associated with reductions in future violations,” Gray claims. He said the biggest impact tends to be in the first one or two years after the inspections. In other words, he sees a lot of improvements after inspections that levy fines, but these improvements tend to level off and stabilize after a couple of years.

“However, we don’t see a lot of backsliding after that,” he adds.

In addition, over a period of 10 or 20 years, subsequent inspections of those employers tend to show fewer and fewer violations. That is, the first inspection is usually the one that finds the most violations. “This suggests to me that things are getting cleaned up fairly long-term,” he states. As a result, Gray’s belief is that OSHA inspections are doing some good.

Some people suggest that OSHA should do inspections and simply suggest ways to improve problems when they find violations, rather than levying penalties. But Gray’s research shows the opposite.

“Our research shows that most of the impact of inspections on subsequent injuries follows inspections that actually impose monetary penalties,” Gray says. “Having to write a check gets management’s attention.”

Educational Role

While Eisenbrey supports OSHA’s regulations, inspections and penalties role, he also believes education can be useful.

“OSHA needs the resources to do more education,” he said. For example, he believes that it should be visiting contractor organizations to do talks about fall protection, trenching safety, electrical safety, and similar issues.

While OSHA’s On-site Consultation Program fills some of this educational role, Eisenbrey is more critical of other OSHA partnership programs such as the Voluntary Protection Program (VPP) and the OSHA Consultation’s Safety and Health Achievement Recognition Program (SHARP), which recognizes small businesses that have achieved excellence.

“In order to participate in these programs, employers commit to implement model injury and illness prevention programs that go far beyond OSHA’s requirements. These employers demonstrate that safety pays and serve as role models to all businesses,” OSHA told Claims Journal.

However, Eisenbrey says while such partnership programs like VPP and SHARP may be the “nice thing” to do to recognize employers that are doing things right, operating these programs also takes away needed resources from other critical areas within OSHA.

“If the VPP is being given to a really good employer, then OSHA is spending a lot of time with a really good employer, when it should be spending more time trying to find the bad employers,” Eisenbrey suggests.

Striking a balance between enforcement, penalties and education is not easy, especially when budgets are tight.

Jim Johnson, group vice president of workplace safety for the National Safety Council in Itasca, Ill., believes that is exactly what OSHA should aim for — a healthy balance between regulation, inspection and penalties vs. education and partnerships. But finding more resources to focus on education and partnerships tend to be difficult in today’s budget deficit world.

“There are great benefits to voluntary programs,” Johnson claims. “These encourage employers to continue to improve in their safety and health processes.”

At the same time, he believes, there are companies that do not recognize their responsibilities for safety and health. “In some cases, these companies have a pattern of disregard,” he maintains. “They do not provide the protection that is necessary, and they are regularly not in compliance with the regulations.”

In these cases, he believes, inspections and fines are appropriate ways to ensure that these employers correct the hazards that are exposing workers to danger and the risk of injury or death. Nothing puts the attention on safety like a hit to the pocketbook.