Standard Interpretations - Table of Contents|
November 1, 1991
Attached is a hearing report prepared by the Directorate of Policy concerning the October 29 hearing on OSHA Reform before the Senate Labor and Human Resources Committee. The Labor and Human Resources Subcommittee on Labor will hold a second hearing on this issue November 5.
The full text of the AFL-CIO's written statement is attached for your information.
Hearing Report on OSHA Reform
Senate Labor and Human Resources Committee
October 29, 1991
Members Attending: Chairman Edward Kennedy (D-MA); Howard Metzenbaum (D-OH) Claiborne Pell (D-RI); Paul Simon (D-IL); Brock Adams (D-WA); Paul Wellstone (D-MN); [very brief appearance by Thad Cochran (R-MS)].
Witnesses: Panel I: Gabriel Garcia, former employee of Bay State Smelting Company in Somerville, MA; Nancy Lessin, Director of the Massachusetts Coalition for Occupational Safety and Health; Ed McCormick, President, International Chemical Workers Union Local 12, Monsanto Chemical Processing Plant in Sauget, IL; Wanda Hatcher, Quality Inspector, and Clarence Estepp, Plant Manager, Teepak Inc. in Atlanta, GA.
Panel II: Thomas Donahue, Secretary-Treasurer, and Peg Seminario, AFL-CIO.
Panel III: Dr. Eula Bingham, former OSHA Assistant Secretary; Morton Corn, former OSHA Assistant Secretary; Dr. Phillip Landrigan, former NIOSH Official; Sidney Shapiro, Law Professor, University of Kansas.
Panel IV: Ted Hillman representing the Associated General Contractors; Jerry Williams representing the Independent Bakers Federation; and George Salem, representing the Coalition for Occupational Safety and Health.
Hearing Summary: Chairman Kennedy (D-MA) opened the first in a series of Senate hearings on the Comprehensive Occupational Safety and Health Reform Act (5. 1622) by noting that the recent accident in North Carolina has "focused new attention on the failure of the government to live up to the promise it made 20 years ago when OSHA was passed."
Stating that now is the time for comprehensive OSHA reform, Chairman Kennedy announced that the proposed reform legislation attempts to improve OSHA on two fronts -- first, by strengthening OSHA's existing standards-setting and enforcement authority, and second, by increasing the role of employers and employees in identifying and addressing workplace hazards.
Senator Orrin Hatch (R-UT), Ranking Minority Member, was unable to attend the hearing, but submitted a written statement expressing his opposition to the proposed reform legislation. Senator Hatch suggested that the provisions of the reform proposal may actually hinder OSHA's ability to meet the promise of a safe and healthful workplace. He concluded that, rather than instituting fundamental changes, the government should concentrate on fully and adequately meeting OSHA's existing mandate to ensure, so far as possible, safe and healthful working conditions.
Additional witnesses representing employees, employers, organized labor, and safety and health professionals, provided the Committee with their views on the proposed comprehensive reform legislation.
[Note: Although several majority members attended the hearings for short periods of time, the overall attention given to this hearing by Committee Members was not great. Chairman Kennedy was the only member to make an oral statement, and very few questions were asked of the panels by any member. Minority members did not attend the hearing.]
Panel I: Gabriel Garcia, a former employee of Bay State Smelting Company in Somerville, MA, provided testimony concerning his former employer's failure to respond to employee reports of unsafe and unhealthful workplace conditions. Speaking through an interpreter, Mr. Garcia told the Committee that he believes that his employer harassed him for responding to questions from compliance officers during OSHA inspections, and ultimately fired him for speaking out about unsafe conditions.
According to Mr. Garcia, OSHA inspected the facility in January 1991, and again in May 1991; however, he indicated that OSHA failed to recognize and/or cite violations which he alleged existed at that time. As a result of his experiences, Mr. Garcia stressed the need for greater employee involvement in workplace health and safety without fear of retaliation.
Nancy Lessin, Director of the Massachusetts Coalition for Occupational Safety and Health (MassCOSH), told the Committee that Bay State Smelting has a long history of denying its use of toxic substances and misrepresenting its practices to State and Federal officials. Ms. Lessin noted that OSHA's May 1991 inspection report indicated that no new apparent industrial hygiene violations were observed. However, in July 1991 air sampling conducted by OSHA and the Massachusetts Division of Occupational Hygiene, documented lead levels at over four times the OSHA PEL. Copper, zinc, beryllium, and total dust levels were also in excess of OSHA limits.
Ms. Lessin stressed that, from this experience, an important lesson should be learned -- that workers themselves are the true experts about what goes on in their workplaces. MassCOSH expressed strong support for the reform bill, indicating that the reform legislation would provide the process by which workers can play an active role in occupational safety and health, the protection they will need to exercise that role, and the enforcement necessary to assure compliance with the law.
Ed McCormick, President of the International Chemical Workers Union (ICWU) at the Monsanto Plant in Sauget, IL, testified that the company's commitment to employee involvement has had a positive impact. As a participant in OSHA's Voluntary Protection Program (VPP), the Monsanto plant has elected health and safety committees to encourage employee and employer cooperation. Mr. McCormick concluded that the decline in the company's injury and illness rate is attributable to the cooperative relationship between management and labor, and a strong commitment to health and safety.
Wanda Hatcher and Clarence Estepp also provided testimony based on their company's experience in OSHA's VPP program. The Teepak Plant in Atlanta, Georgia, has instituted health and safety committees, emergency response programs, ergonomic improvements, and methods for identifying and correcting hazards. The witnesses indicated that all of these programs stress the importance of team involvement, and have contributed to the decrease in the company's injury and illness rate.
In response to questions from Chairman Kennedy, the panel agreed that workplaces with exemplary health and safety programs should serve as a model for every workplace.
Panel II: Thomas Donahue, Secretary-Treasurer of the AFL-CIO, accompanied by Peg Seminario, cited the recent accident at the Imperial Food Products plant in North Carolina, and injury and illness statistics, as examples that "the OSHA law and OSHA program are failing to protect workers." The AFL-CIO identified poor administration, limited resources, lack of political commitment, and structural failures in the OSH Act, as the reasons for some of the problems with OSHA. Mr. Donahue said that "we can't wait for government inspectors, we need a new approach at the workplace itself."
The AFL-CIO believes that the Comprehensive Occupational Safety and Health Act provides a new approach to worker safety and health. Describing the bill as "comprehensive in its scope, but modest in its nature," the union stated that the problems addressed by the legislation are well recognized and documented in studies conducted by the General Accounting Office (GAO), the Office of Technology Assessment (OTA), and the Administrative Conference of the United States (ACUS). Mr. Donahue went on to provide an extensive description of the bill's provisions and stressed that passage of the legislation should be a priority for the Congress.
Chairman Kennedy indicated that opponents of reform have charged that the legislation represents a back-handed way for the unions to expand their membership and achieve their own agenda. The AFL-CIO responded that the union does believe that more workers should be unionized; however, the legislation does not represent the union's "wish-list," but rather draws from recommendations of governmental bodies and other Federal and States safety and health laws. He stressed that "its provisions are reasonable and sound."
The Chairman also questioned the union about the issue of employee accountability. Mr. Donahue replied that employees should not be held liable because they do not have the ability to create a safe workplace and have very limited ability even to complain about hazards. [The Chairman indicated that additional questions will be submitted for the record.]
Panel III: Dr. Eula Bingham, former OSHA Assistant Secretary during the Carter Administration, discussed the need for legislation to update and strengthen OSHA. Dr. Bingham noted that during her tenure at OSHA, the agency recognized that standards and enforcement alone were not sufficient to protect workers. As a result, the agency took steps to empower workers with information, training and education, the right to protect themselves, and encouraged employers and workers to actively participate in efforts to improve workplace safety and health.
However, Dr. Bingham indicated that many of the agency initiatives begun in the 70's have been eliminated, or have become less effective due to limited funding or lack of Administration support. Even with strong leadership, a firm commitment to OSHA's mission, and adequate funding, Dr. Bingham warned that administrators will always have constraints on their ability to address the broad range of safety and health hazards faced by workers. Therefore, she advocates expanding our approach to protecting workers. She suggested looking at the approach being taken by other countries, by individual States, and by individual employers in addressing workplace hazards.
Dr. Bingham stated her strong support for the reform legislation, noting that the bill would make significant improvements in workplace safety and health. Specifically, she noted the importance of mandatory worker training in safety and health; employee involvement; employee right to refuse unsafe work; whistleblower protections; extension of coverage to public employees; and stronger enforcement authority including shut down authority in imminent danger situations.
Dr. Bingham concluded by encouraging the Congress to provide additional funding for OSHA. In response to questions from Senator Metzenbaum, Dr. Bingham indicated that improving programs (such as training and education programs) may necessitate the use of outside funding. She suggested that the Congress look at the Swedish model, which sets up a fund to provide the necessary resources for programs.
Morton Corn, former OSHA Assistant Secretary during the Ford Administration, testified that the OSH Act has stood the test of time well, but changes are needed. Citing lack of adequate funding as a major reason for inadequate safety and health protection, Professor Corn strongly encouraged increased funding for OSHA, NIOSH, and training for safety and health professionals. Professor Corn expressed support for a number of provisions in the bill, and opposed others. He stated that changes in the Act are needed, but we must be careful not to create major revisions that may do more harm than good.
Among the provisions that Professor Corn supported were the extension of coverage to public employees; verification of abatement; employee participation; improved authority in imminent danger situations; NIOSH's role in identifying employees at high-risk; the establishment of a National Surveillance Program; the establishment of NIOSH as a separate agency; State Plan improvements; and Victims' rights provisions.
Professor Corn endorsed the concept of a written safety and health program in the workplace, and recommended requiring a safety and health committee to implement the program, but not a joint employer/employee committee. According to Professor Corn, joint safety and health committees are effective in some organizations, but failures in other. For this and other reasons, he opposed the mandatory nature of joint committees as required by the bill.
Professor Corn expressed support for employee training and education, but as an employer responsibility. He stated that OSHA's resources should not be used to prepare educational materials as proposed in the legislation. Additionally, he urged that the bill provide more funding for educating safety and health professionals rather than relying so heavily on employee education.
With regard to the bill's requirement that OSHA respond to any delays in the time-table for standards-setting, Professor Corn noted that this amendment will not improve the pace of a regulation. Instead, he suggested that OSHA be given additional resources to enlarge its staff, and urged the Committee to consider requiring that OSHA and NIOSH work on standards jointly.
The former OSHA official also opposed the bill's mandatory special emphasis provision (which he said was unnecessary) and the expansion of criminal penalties (specifically the definition of "serious bodily injury").
Dr. Phillip Landrigan, Professor at Mount Sinai School of Medicine and former NIOSH Official, strongly supported the reform proposal, noting that it is necessary to combat the current status of occupational disease in this country. Specifically, he supported the following provisions of the reform proposal: written safety and health programs; joint safety and health committees; extension of OSHA coverage; revised standards-setting procedures; abatement provisions; shut down authority in imminent danger situations; data collection; the National Surveillance Program; and the PEL update requirements.
Sidney Shapiro, Law Professor at the University of Kansas and a consultant to the Administrative Conference of the United States, testified in support of the OSHA reform effort, but concluded that the bill does not go far enough in some areas. First, in the area of standards-setting, Professor Shapiro indicated that holding OSHA's feet to the fire is a good idea, but may not be sufficient to increase efficiency. Rather than setting Congressional mandates, he stated that Congress should allow OSHA greater flexibility to set its own rulemaking deadlines, but should then make those deadlines judicially enforceable. Identifying another significant problem in OSHA's standard-setting, the Professor suggested that Congress adjust OSHA's burden of proof requirement to be more like EPA's.
[Professor Shapiro's written statement details specific examples of OSHA's standards-setting and enforcement activities under various Administrations, and summarizes the time-frames associated with those standards.]
Secondly, Professor Shapiro noted that mandating safety and health committees may not be adequate. He suggested including a provision which would allow employees to sue for enforcement of OSHA standards similar to the environmental model, which allows citizens to sue for enforcement of EPA standards. It is his belief that such a provision would provide the necessary incentives for the business community to ensure their cooperation.
Panel IV: Ted Hillman, representing the Associated General Contractors (AGC), testified in opposition to the proposed reform legislation, stating that the proposal would not meet its intended purpose to improve workplace safety and health. The AGC believes that the bill attempts to adopt a "one size fits all" approach which cannot be successfully imposed on the construction industry because the nature of the industry and the nature of the work is so diverse.
Specifically, the AGC objected to the following: mandatory safety and health committees and written safety and health program requirements that do not provide the flexibility required to meet the needs of a diverse industry such as construction; proposed changes to the standards-setting process; expansion of criminal penalties; and the application of the general duty clause at multi-employer worksites.
The AGC concluded that improving workplace safety and health can only be achieved by an increased awareness and dedication by both the employer and the employee, giving each responsibilities and holding each accountable. They believe that this can best be done through training and education and the encouragement of incentives.
George Salem, former Solicitor of Labor during the Reagan Administration, testified on behalf of the Coalition for Occupational Safety and Health. The Coalition expressed its opposition to the reform legislation, stating that the proposal reaches far beyond workplace safety and health issues. The Coalition believes that the proposal has become a vehicle for labor reform and other priorities long sought by organized labor including, high-risk notification, whistleblower expansion, and mandatory joint committees, rather OSH Act reform. The Coalition concluded that the proposal expands OSHA and NIOSH responsibilities and employee rights without demonstrating workplace safety and health enhancements, and places the costs and burden with the employer.
Jerry Williams, on behalf of the Independent Bakers Association (IBA), expressed support for some provisions of the reform legislation, and opposed others. The IBA supports written safety and health programs; extending coverage to the public sector; more standards communication; modifications to PELs; and stronger discrimination protections. However, the Association has serious concerns about mandatory committees; and the time-frames for setting standards outlined in the bill. IBA is also concerned that OSHA will not be able to meet the demands placed on it without significant increases in staff and funding.
[There were no Committee members present to receive the testimony of this panel, no questions were asked by the Committee staff.]
Additional Senate Hearings: The Senate Labor and Human Resources Subcommittee on Labor, chaired by Howard Metzenbaum (D-OH), will hold a second hearing on OSHA Reform issues next Tuesday, November 5th.
House Hearings: The House Education and Labor Committee, chaired by William Ford (D-MI) held a hearing September 12 on the North Carolina State Plan and OSHA Reform issues. A second hearing has been scheduled for November 21, OSHA has received an informal invitation to testify.
Prepared by the Directorate of Policy
October 29, 1991
TESTIMONY OF THOMAS R. DONAHUE, SECRETARY TREASURER AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS BEFORE THE SENATE COMMITTEE ON LABOR AND HUMAN RESOURCES UNITED STATES SENATE ON THE COMPREHENSIVE OCCUPATIONAL SAFETY AND HEALTH REFORM ACT, 8.1622
October 29, 1991
Mr. Chairman, members of the committee, I appreciate the opportunity to testify on S.1622, legislation to reform the nation's job safety law.
It's been more than 20 years since Congress enacted the Occupational Safety and Health Act of 1970. At the time of its passage we had great hope that this landmark legislation would bring about sweeping changes in safety and health protection in the country's workplaces.
Some progress has been made. Workplace fatalities and injuries have declined. (Attachments 1 and 2). Exposure to serious hazards like asbestos, benzene and lead have been dramatically reduced. Expanded efforts and programs to address job safety hazards have been undertaken by government, employers and union.
But progress has been slow and the problems are vast in scope. Basic safety hazards in construction and manufacturing still are substantial. Newer problems like ergonomic hazards, infectious diseases and indoor air contaminants demand immediate attention. The toll of inaction is enormous. Every year in this country more than 10,000 workers are killed on the job by workplace injuries. That's nearly 30 workers each day. A total of 6.6 million are injured and 60,000 are permanently disabled. Another 50,000 to 100,000 workers die each year from occupational diseases resulting from exposure to toxic substances.
The cost of these injuries and illnesses to workers, employers and the nation is staggering. According to the Rand Institute for Civil Justice, compensation costs for workplace injuries alone is $83 billion a year, 2 percent of the GNP.
In 1991 we still have workplaces like Imperial Foods, where 25 workers died last month in a fire trapped behind locked doors at the chicken processing plant in Hamlet, North Carolina. The employer flagrantly violated basic safety rules, but they were not discovered because North Carolina OSHA never once inspected the plant. Workers at this non-union plant were not trained about safety hazards and were afraid to speak out for fear of losing their jobs.
The deplorable conditions at the Hamlet plant are not unique to Imperial Food Products. They are not unique to the poultry industry. And they are not unique to North Carolina. Such unsafe and unhealthful working conditions exist in every state in this country.
That we still have the same conditions in 1991 that killed 146 women at the Triangle Shirtwaist Factory 80 years ago is a national disgrace. The Hamlet fire starkly demonstrates that 20 years after the passage of the Occupational Safety and Health Act, the promise of a safe and healthful workplace for all American workers has not been fulfilled. The OSHA law and OSHA program are failing to protect workers.
Poor administration of the program, limited resources and lack of political commitment are responsible for some of the problems with OSHA. Others stem from fundamental flaws in the original OSHAct. The problems are numerous and serious.
Millions of workers are excluded from the Act's coverage. Standards have been set on just a small number of hazards and now take years to issue. Workers have limited rights to take action on safety and health hazards. Protection against retaliation is ineffective.
Useful and accurate data on work injuries and illnesses is lacking. The performance of state plans in many states falls short of federal standards.
OSHA enforcement authority is limited and its inspection force small. There are only 1,200 federal OSHA inspectors and a similar number of state OSHA inspectors to cover this nation's five million workplaces. At these staffing levels, the federal government can inspect high hazard manufacturing workplaces only once every 13 years. "Routine" programmed safety inspections will occur once every 25 years.
As the Hamlet fire tragically illustrates, we can't wait for government inspectors. We need a new approach at the workplace itself. We need to expand the OSHA law to develop programs and initiatives to resolve safety and health problems before deaths, injuries and illnesses occur. We need changes to provide all workers full rights and protection under OSHA.
The Comprehensive Occupational Safety and Health Act (S.1622) introduced by Senators Kennedy and Metzenbaum provides a new approach to worker safety and health.
The legislation would enhance the ability of workers and employers to work together to address job safety problems. Worksite safety and health programs would be established to identify and correct workplace hazards. Joint committees would provide a forum for worker participation in the employer's safety and health program. Worker and employer training would be expanded to permit better hazard recognition and control.
The legislation would also correct problems and deficiencies in the current law like the exclusion of workers from coverage and limitations in OSHA's enforcement authority. It would also improve OSHA's standard setting and enforcement programs.
The OSHA Reform bill is comprehensive in its scope, but modest in its measures. The problems addressed by the legislation are well recognized and documented in studies conducted by the General Accounting Office (GAO), Office of Technology Assessment (OTA), and the Administrative Conference of the United States (ACUS). (Attachment 3).
The proposed solutions to these problems do not reflect some "wish list." Rather the bill draws heavily from the recommendations of these governmental bodies and other federal and state safety and health laws. It's provisions are reasonable and sound.
The AFL-CIO's comments on specific provisions of the bill are as follows:
SAFETY AND HEALTH PROGRAMS AND COMMITTEES
The heart of the OSHA Reform bill is the requirement that employers develop a worksite safety and health program and give workers a voice in safety and health matters through joint safety and health committees. Workers would have to be trained about workplace hazards and the government directed to develop materials to assist employers in meeting their safety and health responsibilities.
The concept of developing a systematic approach to job safety at the workplace is neither revolutionary nor new. For years, unions, many employers, safety and health professionals and government agencies have advocated such an approach. Studies by the Office of Technology Assessment and the General Accounting Office have recommended safety and health programs, committees and expanded training as measures that can improve worker safety and health.
Safety and health programs can reduce worker injuries and save employers money. According to the Business Roundtable, through the implementation of a comprehensive safety and health program, Air Products and Chemicals, Inc. reduced workplace injuries by more than half in a 5-year period, thereby saving $1.7 million. Similarly, a comprehensive safety program at the John Deere Company of Moline, Illinois reduced injuries and saved the company $32.2 million in workers' compensation costs in 1990.
A number of states have recognized the importance of safety and health programs in reducing injuries and required such measures as part of their state OSHA programs. The state of Washington first adopted regulations requiring all employers to have an accident prevention program in 1973. In 1990, the states of Minnesota and California adopted legislation requiring employers to develop and implement safety and health programs. The California legislation applies to all employers though the state can modify the requirements based upon size and hazard. The Minnesota legislation applies to industries designated as high hazard by the state.
Federal OSHA has undertaken some initiatives on safety and health programs. In 1982, OSHA initiated a voluntary program to certify companies with good safety programs. In 1983, OSHA promulgated its Hazard Communication Standard and required that employers develop and implement a program to address the hazards posed by workplace chemicals. Voluntary guidelines on more comprehensive workplace programs were issued in 1989. But there still is no federal requirement for employers to develop and implement a comprehensive program to address other health and safety hazards at the worksite. Last year the General Accounting Office recommended that OSHA issue binding regulations on worksite safety programs, but to date OSHA has not done so.
Legislation is clearly needed to put this requirement in place. One of the key elements of an effective safety and health program is the active participation of workers. Their first-hand knowledge of workplace operations enables workers to identify hazards and to offer recommendations for improvements. Involving workers in safety and health matters will enhance both the employees' and employers' commitment to address workplace hazards. Each of the states with safety and health program requirements and federal 0SHA's voluntary initiatives make explicit provisions for the involvement of employees.
Under the OSHA Reform bill, worker participation would be provided through joint worksite safety and health committees.
Another major road block to effective employed participation in enforcement proceedings and other safety and health activities is fear of retaliation by the employer.
In theory, the current OSHA law protects workers against retaliation for exercising their safety and health rights. In practice, it just doesn't work. Under the OSHAct, workers who believe they have been discriminated against must depend upon the government to investigate and prosecute the case in federal district court. Government action takes months. According to a 1989 study by the General Accounting Office, less than 20 percent of cases are resolved or prosecuted on behalf of the workers. Most cases are simply dismissed or withdraw. While cases are investigated and resolved, workers may be out of a job and losing pay.
The OSHA Reform bill would strengthen the legal protections for workers who speak out about job hazards. Reports to employers, the safety committee or the government about injuries, illnesses or unsafe conditions would be protected activities. The right of workers to refuse to perform tasks which threaten their life or safety or that of other workers would be codified in the statute. The review process for resolving discrimination complaints would be simplified and the Department of Labor authorized to issue enforceable preliminary findings and to reinstate workers while final action is pending.
This review process and the remedies are modeled on the anti-retaliation provisions of the Surface Transportation Act, which have been effectively implemented by OSHA and the Department of Labor under an agreement with the Department of Transportation since 1988.
REPORTING RESEARCH AND SURVEILLANCE
One of the objectives of the original Occupational Safety and Health Act was to develop better data and information on occupational injuries and illnesses in this country. In the early 1970's, data collection systems were developed by the Department of Labor to better ascertain the extent of workplace injuries and illnesses. The National Institute for Occupational Safety and Health (NIOSH) was established to conduct research and investigations particularly on matters affecting workers' health.
Twenty years later the results of these efforts are disappointing. Data collected by the Department of Labor's Bureau of Labor Statistics (BLS) on occupational injuries, illnesses and fatalities is of questionable accuracy and limited utility. Occupational fatalities and illnesses are grossly under-reported by the BLS system. Workplace specific injury information is not available for OSHA standard setting and enforcement purposes.
NIOSH's research and investigation programs are also limited. Unlike other national health institutes dedicated to a particular purpose, NIOSH is buried deep in the Department of Health and Human Service's administrative structure within the Centers for Disease Control. This institutional constraint coupled with limited funding have prevented NIOSH from developing a top notch research program on major safety and health problems. Today just $86.5 million are appropriated for NIOSH workplace safety research mandated by the OSHA and MSHA laws, less than $1.00 per worker.
The OSHA Reform bill attempts to improve injury and illness information and safety and health research in a number of ways.
First, OSHA is directed to gather better and more detailed and complete information on the occurrence of workplace injuries and illnesses and to make such information publicly available. This provision would not require additional recordkeeping by employers, but simply require that more of the information already kept by employers be reported to the government. It is in keeping with recent recommendations by a National Academy of Science's expert panel, and a tripartite labor-management-government working group on health and safety statistics and data convened by the Keystone Center in 1986.
Second, NIOSH is established as an independent agency within the Public Health Service and its statutory mission expanded to explicitly include safety research, safety investigations and education, outreach and notification programs for workers at increased risk of occupational injuries and illnesses.
Finally, NIOSH is directed to develop surveillance programs in conjunction with appropriate federal and state agencies to better identify cases of occupational injuries and illnesses and to assist in prevention activities.
In 1970, the Occupational Safety and Health Act federalized workplace safety and health regulations and enforcement but permitted states to participate by establishing approved state 0SHA programs as effective as the federal program. Up to 50 percent federal funding may be provided to the states by federal OSHA, which has the responsibility to monitor and assure the effectiveness of state programs. Today, 21 states and two territories operate approved state OSHA programs which cover private and public sector workers. Two additional states -- New York and Connecticut -- operate state programs limited to the public sector.
The track record of state plans has been uneven. Some have moved forward with standards beyond those of federal OSHA and launched new safety and health initiatives. For example, right to know toxic chemical laws and regulations were first adopted at the state level as have requirements for safety programs and committees.
Most states, however, have generally codified federal OSHA standards as state requirements. This process should be completed within 6 months of the promulgation of OSHA standards, but often takes years before final action by the states.
Great differences also exist between the federal and state OSHA enforcement. Except for the early years of the Reagan Administration, federal OSHA enforcement has been tougher than state enforcement. More violations are cited as serious and willful and penalties are much higher. This differential has been heightened in recent years with the adoption of OSHA's egregious policy and instance by instance sanctions. Mega fines of millions of dollars are now standard in OSHA egregious cases. For most of the state plans a large penalty for similar violations is usually much less than $100,000.
As a result of the 1990 Budget Act which raised maximum federal OSHA penalties, state OSHA plans must also change their statutes to track the federal program. To date, 7 out of the 21 states with private sector OSHA plans have failed to do so.
Federal OSHA has the responsibility to assure that state OSHA programs are effective and provide adequate protection to workers. State programs are supposed to be monitored and withdrawal action initiated if states are substantially deficient in their programs. In the last decade, however, the administration has strongly supported state programs and been loathe to take action no matter how serious the problems. For example, after the recent tragedy in Hamlet, North Carolina, it was revealed that the state had fewer than half the inspectors necessary to run the program and that inspection levels had fallen by one-third in recent years. Yet this past July, federal OSHA issued an evaluation of the North Carolina state plan that made no recommendation for additional inspectors and found the plan to be effective in providing protection to the workers of North Carolina.
The OSHA Reform bill does not change the federal-state relationship in workplace safety and health regulation. It does contain some modest measures which the AFL-CIO believes will improve the operation of state plans.
Under the bill, federal standards would automatically go into effect if a state failed to adopt a comparable state standard within 6 months. The existing procedure for investigating complaints against a state plan would be formalized and federal OSHA authorized to cite for serious violations where a state failed to do so. The procedures for withdrawal of a state plan would be modified to give a state a 6-month period to correct deficiencies before withdrawal proceedings commenced.
The fire in Hamlet, North Carolina has raised many questions about the effectiveness of the current federal-state system of safety and health enforcement, particularly whether American workers would be better protected under one uniform federal system. This is a matter that the AFL-CIO believes needs serious attention and consideration as the hearings on OSHA Reform legislation proceed.
In our efforts to deal with workplace safety and health issues, sometimes we lose sight of those most affected -- workers killed, injured or diseased on the job. OSHA's investigations and inspections address hazardous conditions. Victims of occupational disease or injury are often shut out of the process. Even in cases of workplace fatalities, family members have difficulty in obtaining information from OSHA on circumstances that led to a worker's death.
The OSHA Reform bill would add some compassion to the OSHA enforce process. In cases of workplace fatalities or catastrophic injuries investigated by OSHA, victims or family members would be guaranteed some basic rights. Upon request, victims could receive copies of OSHA citations and investigation reports. They would have an opportunity to meet with OSHA representatives before citations are issued or settlements concluded. Victims would be assured the same rights as other employees to participate in Review Commission proceedings.
These provisions in the OSHA Reform bill would codify into law basic human decency for those who have suffered serious workplace injuries.
Twenty years ago the Congress enacted the Occupational Safety and Health Act and promised every American worker the right to a safe job. It was bold legislation among the first generation of federal initiatives to protect this nation's safety, health and environment.
Most other safety and environmental laws have received regular Congressional scrutiny and have been updated and strengthened. By contrast, workers' safety and health has been sorely neglected. It takes tragedies like the 25 workers killed at a North Carolina chicken processing plant to get the necessary attention.
The AFL-CIO believes it's time for the Congress to fulfill its promise to the working people of this country that they don't have to give up their lives or limbs to earn a day's pay. It's time for the Congress and the nation to care about the workplace environment as much as the general environment and to value human beings as much as endangered species.
This Committee is now considering legislation that would make comprehensive reforms to the Occupational Safety and Health Act. S.1622 provides a new approach to workplace safety and provides sound and reasonable solutions to problems in the current law. It offers a new promise to workers.
The labor movement is committed to passage of comprehensive OSHA reform legislation. We hope that the business community and Bush Administration will join us and be part of that process.
Protecting the safety and health of American workers is in the national interest. Passing OSHA reform legislation should be a priority of this Congress.
Occupational Injury and Illness
Since the Passage of OSHA1
Occupational Injury and Illness Incidence Rates
Private Sector, 1972-89 (Per 100,000 workers)
1 From Bureau of Labor Statistics, Occupational Injuries and Illnesses in the United States by Industry, 1989. Data is not available for 1971. Data for 1990 has not yet been published.
Since the Passage of OSHA1
2 Workers are all persons gainfully employed, including owners, managers, other paid employees, the self-employed, and unpaid family workers, but excluding domestic servants.
3 Deaths per 100,000 workers.
Attachment #3 - Support for OSHA Reform contained in government Reports
(Will be added later)
OSHA HEALTH STANDARDS ISSUED SINCE 1971
Standard Interpretations - Table of Contents|