January 12, 2007 The Pump Handle 11Comment

Thanks to those of you who have responded so far to the draft paper, “Getting Home Safe and Sound? OSHA at Thirty Five,” which was posted here several days ago.  Many people have agreed with the need for this dialogue and indicated the intent to contribute to it.  Comments so far have supported the need for a generic safety and health program rule; raised cautions about what’s said in a public forum; urged stricter penalties when employers negligently violate OSHA rules; expressed the need to de-politicize OSHA; endorsed the idea of third party inspections and proposed examining the SEC audit system as a possible inspection model; offered suggestions for making the issue relevant to the broader public, activating workers’ families and journalists, and framing the issue differently for different groups; and questioned the differences between cultures in environmental health and occupational health.  Thanks for the excellent start to this discussion.  While I welcome comments and suggestions on all the themes and ideas in the paper I am especially interested in reactions to two sections. 

First, section 2 of the paper is the Roadmap for “Getting Home Safe and Sound.”  As described in the introductory letter this is “a short stand-alone set of principles, priorities and practical actions – a roadmap or framework for change.  The choice of a limited framework rather than a long shopping list is rooted in the belief that accomplishing change requires sharp focus by multiple parties on a common set of objectives so energies can be concentrated and coordinated instead of diffused.  Thus, while this list of principles, priorities and practical actions is a working draft and suggested changes are invited and needed, improvements should be along the lines of achieving a more compelling and better articulated short list rather than expanding into a more inclusive longer one.”  What do you think about the principles, priorities and practical actions that have been put forward in this draft?  What would you modify, eliminate or add?

Second, section 7 of the paper includes a description of a leveraged alternative to a system that regulates one hazard at a time and sends government inspectors to one workplace at a time: “OSHA would adopt a generic rule requiring employers to implement comprehensive safety and health programs that effectively reduce injuries and illnesses, in addition to compliance with other specific OSHA rules. Programs would include safety and health management systems, employee participation, exposure monitoring, medical surveillance, and ergonomic protections.  Employers would be required to obtain an annual written certification that their firm had been inspected and was in compliance with all OSHA requirements and the business owner or CEO would be required to sign an annual personal declaration that this had been done.  OSHA would license the inspectors and conduct on site audits of the inspections.  OSHA would also continue to do inspections in response to complaints, fatalities and catastrophes.  The business owners and private inspectors would be legally liable for acts of negligence, false statements, and conflicts of interest.”  Previous proposals along these lines have received moderate support from business and strong opposition from labor.  Can effective checks and balances be designed so that such a system could work to expand the reach and impact of the OSHAct without being corrupted and abused?

Comments on other aspects of the draft paper are also welcome.  Please respond below or in the previous post .  You can download the full paper at DefendingScience.org.

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11 thoughts on “OSHA at Thirty Five – More Discussion

  1. I’ll re-post my comment from earlier, since it relates to the question of annual certification:

    With regards to having private inspectors conduct regular inspection and certification, I noticed that one of the discussion questions from the paper gave some models to consider:

    “Are there ways that 3rd party systems for inspecting and certifying safe workplaces might be successful? What about these models?
    * “Licensed site professionals” who audit hazardous waste sites under
    remediation with oversight by state environmental agencies.
    * SEC auditing is done by private inspectors.
    * Third party facilities certification under the Mammography Quality Standard Act.
    * Third party inspections for the Joint Commission on Hospital Accreditation.”

    These all have different strengths as models. I expect that the biggest gap will be between voluntary and mandatory programs, because voluntary programs will tend to set a higher bar and be designed to handle a relatively small percentage of the businesses that fall within their sectors.

    SEC auditing might be an interesting model to consider, because it’s mandatory and covers all publicly traded companies, and I assume we’d want worker safety certification to be applicable to a similarly large pool of workplaces.

    The SEC website has a summary of how the auditing process works. Basically, the company’s management prepares the financial statements and then submits them to an independent certified public accountant, who “examines the company’s financial statements and provides a written report that contains an opinion as to whether the financial statements are fairly stated and comply in all material respects with GAAP [Generally Accepted Accounting Principles].”

    I don’t know a whole lot about the accounting profession, but I imagine that CPAs and GAAP play roles far beyond what’s involved in SEC-required audits, and existed before these requirements were in place. Does any kind of analogous infrastructure exist in workplace health and safety?

    After the corporate accounting scandals highlighted problems with existing auditing procedures, the Sarbanes-Oxley Act created the Public Company Accounting Oversight Board, a private-sector nonprofit corporation that oversees auditors. The PCAOB is, in turn, subject to SEC oversight. Workplace safety inspectors would probably need something analogous to the PCAOB, which would be subject to OSHA oversight.

    I expect that workplace inspection would be even more challenging than financial statement auditing because inspection would require visits to
    physical workplace locations. Also, would different kinds of workplaces
    (factories, farms, offices, etc.) require different standards, or would
    it be possible to write standards that can apply to all workplaces?

  2. I’m reposting this from the previous post as it relates to 3rd party certification:

    There’s a lot to be said about independent third-party audits. Let me start with a few questions. Assuming there is some way to develop a system of auditors that is not under the influence of the employers who hire them, there are some other questions that need to be answered.

    1. Would the audit results be publicly available — or at least avialable to workers/unions/worker representatives?

    2. Would the audit cover issues not subject to OSHA standards? How could that be determined, monitored and enforced. What about chemical exposure limits?

    3. Would audit results be available to OSHA inspectors? In the event of a death or injury due to an issue identified in the audit, would the audit be grounds for a willful citation or criminal prosecution? In such an even, would the audit results be available to family members?

    4. Assuming employees gained a private right of action (as Michael suggests), could the audit results be used?

    5. How could we ensure that there was adequate funding, personnel and resources to effectively audit the auditors? (Particularly given our seeming inability to even audit the accuracy or current workplace injury and illness numbers.)

    6. Why would employers (or more accurately, business associations) or the courts ever agree to any of this? What legislative changes would be need to overcome any legal challenge

  3. Jordan raises important questions. I’d like to think about #2. (Would the audit cover issues not subject to OSHA standards? How could that be determined, monitored and enforced. What about chemical exposure limits?)

    Here are some tentative thoughts. As I see it, an audit should be distinguished from an OSHA inspection. OSHA inspections focus on the presence of a hazard or a rule violation. Audits would look at these, but could also examine issues that relate to the process of hazard abatement. Some possibilities: has the workplace been surveyed for the presence of hazards; is there a safety and health committee and does it function; are near-misses being investigated; and, most importantly, is the previously developed safety and health plan being followed?

    How to ensure these are part of an audit? There probably has to be a trade-off, with employers who sign up for a full audit (including the above, as enumerated in some law or regulation) from an accredited firm, receiving a benefit in terms of lower workers comp premiums, less onerous OSHA inspections or both.

  4. David Michaels and Peter Dorman raise the right, hard questions about involving non-government personnel to play a central role in holding employers accountable for following the rules on safe workplaces – cost and funding, accountability, qualaity control, conflicts of interest, industry capture. David refers to “audits” and Peter talks about “devolving” the current approach to a management system model. While I understand their points of view, I don’t have in mind a future in which general programs take the place of specific requirements. The concept that most intrigues me is the idea that every company would have to be certified as safe and healthy. This would mean hanging a certificate stating that the workplace has been evaluated and is compliant with specific standards (e.g. the lead standard), the general duty clause, and generic standards (e.g. a safety and health program rule). This is a shift in paradigm from the current honor system in which employers are required to comply with the rules but do not have to demonstrate compliance unless they are inspected. The current system cannot possibly work unless truly huge (and unthinkable) increases in the numbers of inspectors and the size of penalties raised the stakes high enough to create a deterrent force for resistant employers that simply does not exist now. A certification requirement would change the dynamic. It would raise, however, all the questions posed by David, Peter, Liz and others about involving third parties in the certification process. The most important question from a policy standpoint is conflict of interest: how can we ensure that private inspectors act in the public interest. The most difficult question from a practical standpoint is funding; who would pay for the huge number of certification inspections. Without a good answer to funding, any proposal along these lines is politically a non-starter. I am interested in any ideas about this. Perhaps an offset from worker compensation funds?

  5. Michael, What can be done about a situation like ours ? The company made modifications, .. I assume long after any inspections may have been done. How can we be assured that in the future when a company choses to ‘change’ their machinery for their own benefit that innocent lives arent lost ? I am a simple working mom & wife and I was able to access the OSHA website and found the regulations for the exact equipment that had been modified ! Why, please tell me why didnt the company take 2 minutes to do the same ?

  6. Becky, you raise a very important question. What assurance is there that when a company changes its operations or equipment all necessary safety and health precautions are taken and all OSHA rules are being followed? This is exactly why I have asked for discussion about ways to certify that employers are in compliance, including having the CEO personally sign on the dotted line. However, even if this turns out to be a good way to go it will not be soon and you need some answers or at least some suggestions right away. So, here are a few things… First, in some unionized workplaces there is language in the collective bargaining agreement that requires the company to do a safety assessment before any significant changes in operations or equipment. Second, even without a union there can be a joint labor-management safety committee that reviews changes for safety before they are made. In a few states, including Washington there are requirements for these safety committees. Third, the OSHA law gives employees the right to file an anonymous complaint with OSHA if there are concerns that rules are being violated and there is a risk to workers. OSHA is required to investigate these complaints.

  7. How do we really evaluate OSHA’s effectiveness?

    One of the underlying problems is that we lack adequate incident reporting and injury statistics to evaluate whether any OSHA standard or program is effective in reducing injuries. As Michael pointed out in his paper, the existing system for BLS statistics is survey-based and breaks down when you get to the state level.

    Furthermore, what we also need to evaluate is whether worker safety programs are effective in reducing ‘exposure’ to hazards. For this, we need some kind of leading indicator (vs. the lagging indicator of injuries and illnesses).

    My second issue is one of cost to the small employer. Part of the suggested workplace safety reform and use of 3rd-party auditors would have to include making grant money available through SBA to assist small businesses in managing the cost of an audit.

  8. I want to comment on one narrow aspect of the document. Although the document clearly states that official statistics underestimate the true burden of occupational injuries and illnesses, none of the document’s recommendations address a solution to the problem. An undiscussed factor in the lack of a broad public interest noted in the section on Politics and Policy is the undercount and lack of true accounting of the adverse effects that may occur from work. Good disease surveillance is the backbone of any effectice public health program to target and evaluation intervention.

    As long as the official statistics are soley dependent on an employer based reporting system, the system will remain inadequate. The multi source system for work-related acute traumatic fatalities put into place in 1992 corrected a small piece of the problem. Changes to the system to collect accurate data on nontraumatic injuries and occupational diseases are very much needed

  9. Early kudos for this bold step at holding a mirror up to OSHA. Much needed. Many years ago, I gathered data on annual OSHA inspection frequency, penalties and average penalties per inspection (among other data points). Not surprising, but nonetheless interesting, was how the trends correlated to the party affiliation of the President and that party’s strength in Congress. Not sure if it’s worth exposing in your report that somewhat obvious point that OSHA is a political “sail.”

    As for “Road Map”….at an OSHA conference in GA in Oct ’06, the assistant sec’ty of labor gave closing commentary; lengthy and mostly empty boasting about what OSHA had accomplished in 35 years. During Q&A commented on how we still did not have a mandate for a safety program (only a guideline) and I asked him what OSHA’s position was “on adopting or referencing ANSI Z10.” He was clueless, and did a bad dance around the question, eventually admitting he did not know. We need structure, a system, for safety management if we are to achieve the kinds of reduction in injuries & illnesses we should be having in this 21st century. Also see my editiorial in Nov. issue of Professional Safety (“Other Voices”) where I pose the point that “we don’t know safety.” In my opinion, that lack of understanding what safety is and how to manage it is at the very root of our weaknesses, and our opportunities to improve.

  10. How to ensure these are part of an audit? There probably has to be a trade-off, with employers who sign up for a full audit (including the above, as enumerated in some law or regulation) from an accredited firm, receiving a benefit in terms of lower workers comp premiums, less onerous OSHA inspections or both.

  11. First know that these are just thoughts on what a program could be based on and I am no expert in any form this is only an avenue to get others thinking about options and proven cut outs.

    The ISO has a good thing going I have said this for years. Part of the reason it works is because the Auto makers refuse to do business with suppliers if they are not ISO certified. Maybe part of the answer is that we not only leave it solely to the company at hand but also the others doing business with them. This could possibly be attached to the requirement of viewing the EIN or workers comp in contracting (haven’t really worked this one out yet). Maybe it would be as simple as just looking for the certification online. The biggest issue would be having a persuasive reason to keep up on the certification and checking others status.

    Quick lowdown…
    What is ISO? ISO is a national standard for quality management and environmental management.
    How does it work? ISO trains and certifies a company on ISO 9000 and/or ISO 14000. The ISO certification gives companies breaks in different areas. The big companies will not do business with companies who do not have the certification. If a company does not comply with ISO standards they lose their certification and the business of the lager companies.
    ISO 9000 Deals with quality management helps ensure:
    – the customer’s quality requirements, and
    – applicable regulatory requirements, while aiming to
    – enhance customer satisfaction, and
    – achieve continual improvement of its performance in pursuit of these objectives.
    The ISO 14000 deals with environmental management and help ensure:
    – minimize harmful effects on the environment caused by its activities, and to
    – achieve continual improvement of its environmental performance.
    The ISO address
    USA (ANSI)
    American National Standards Institute

    Now this issue with ANSI could be that someone can be a member and not comply with standards and many of the standards come directly from members which are often trade associations mainly backed by the companies themselves. So it could not come directly from ANSI.
    Just some starter thoughts.

    If we think logically they have put so much time and effort into the product standard why not the safety and health factor. Of course that is just the Tammy logic and I personally had written ISO about three years ago to see if they have ever considered a general safety and heath program and didn’t even receive a go fly a kite.

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