Remarks Prepared for Delivery by
Acting Assistant Secretary of Labor
For Occupational Safety and Health
U.S. Chamber of Commerce
Labor Relations Committee
Wednesday, November 18, 2009
Thanks to Marc Freedman for inviting me to your meeting this morning.
I'm pleased to have this opportunity for us to exchange ideas and find common ground in our mutual wish to prevent the thousands of worker deaths and tens of thousands of serious on-the-job injuries and illnesses that happen every year across our Nation.
I think we all agree that preventable worker injuries, illness and deaths are expensive, disruptive, wasteful ... and completely unnecessary. If we can begin every discussion on worker safety with this indisputable truth, then OSHA and the Chamber should be able to productively address workplace problems together.
Focus on Standards and Enforcement
I was asked to speak to you primarily about what OSHA can do for business in terms of compliance assistance and cooperative programs, and not just new standards and enforcement initiatives. I'm not sure if this is a sign that you've heard too much about new standards and enforcement initiatives, or merely the hope that if I don't talk about them, they'll go away.
Well, I will talk about compliance assistance and cooperative programs, but I want to say a few things about standards first.
As you're aware, we have an active program right now focused on re-energizing our push to implement those standards that have been stuck in the pipeline for years - silica, beryllium, cranes and derricks, a globally harmonized system for chemical labeling, and a standard for confined spaces in construction - as well as a few more recently added ones: diacetyl and combustible dust.
Eventually we will need to move forward on a number of other, more difficult issues. Among the options for addressing these issues are some kind of regulatory activity or, possibly, even congressional action.
I'm sure it won't shock any of you when I say that among these issues are work-related musculoskeletal disorders, Safety and Health Management Systems, and Permissible Exposure Limits.
So, here is what OSHA can do for business: As we move forward on these difficult standards and enforcement priorities and possible legislative initiatives, we offer you our partnership in return for your cooperation, assistance, and constructive comments and criticism.
Realistically, OSHA is not going to propose any standard that isn't backed by strong science; nor will we require practices that haven't been adopted already by hundreds or even thousands of companies that take pride in going above and beyond any conceivable OSHA standard.
By "constructive comments and criticism" I mean this: When we make a proposal, we'd like to hear from companies that have tested and embraced successful practices, and companies that can tell us with authority what works, what doesn't work, and what makes sense.
We will, of course, value the opinions and comments of the Chamber of Commerce, but we also want to hear from companies directly and individually as part of the public comment and hearing process.
If you'll step forward and support this approach, you'll see that you have a partner in this Agency, not an enemy. On the other hand, should OSHA find itself confronted with reflexive, ideological rejectionism, dismissive complaints of "no science" in our proposals, and doomsday warnings of impending economic devastation, we'll simply stop wasting time talking to you.
Now, let's talk about compliance assistance and cooperative programs.
First, it may surprise some of you to learn that there are few bigger fans than I when it comes to compliance assistance. Training for workers and for OSHA inspectors, fact sheets, guidance documents, worker training grants - these are all good, all very helpful.
Last year, nearly 32,000 employers took advantage of one of our most popular compliance assistance products, the On-site Consultation Program, and 97 percent of these were small businesses that employed fewer than 250 workers.
There's room for improvement. To do a better job of helping protect immigrant and other hard-to-reach workers, it's vital that we produce understandable and accessible materials. OSHA's Web page is one of the best, modern sites that you'll find on the Internet - the Internet of 1998, that is. The fact is, OSHA has become very good producing materials for company safety directors, but we've not kept up with producing equally good materials for workers.
Our Susan Harwood training grant program suffers from a severe lack of creativity and self-evaluation, and one of the most common complaints that I hear when from our own inspectors is that they don't have access to enough good training materials to pass on to workers.
This is all compliance assistance and it's all high up on our agenda.
If you haven't heard, OSHA, NIOSH and other agencies are sponsoring a Hispanic workers summit this coming April in Texas. As a matter of fact, we're looking for corporate partners to help us organize this conference; if you're interested, get in touch. I know the AGC, for one, has been quite enthusiastic about working with us to make this conference successful.
To put things in perspective, however, I see compliance assistance as a critical support - and not a replacement - for our enforcement and standards activities.
Cooperative programs are a more difficult issue to resolve within OSHA's priorities. As you're probably aware, for a long time I've been a major critic of how OSHA's VPP and Alliance programs are managed.
This is why I've spent a great deal of time since arriving in OSHA, talking with participants in these programs and asking them frankly "what's the big deal" - what do they get out of these programs, especially VPP?
Their answers range from simple pride in flying the VPP flag and recognition of superior performance, to experiencing a profound esprit and enthusiasm for VPP that spreads through the workforce. Clearly, participants find significant benefits.
Significantly, the one benefit almost no one has mentioned is the exemption from general schedule or NEP inspections - not a big deal for VPP companies.
We recognize that many VPP participants go way above and beyond OSHA in many areas, especially in areas where we need to do some serious work - like ergonomics, chemical exposures, and Safety and Health Management Systems. In these companies we see can allies in future OSHA activities.
With all that said, we need to face some hard realities. A 2004 Government Accountability Office report asked OSHA to evaluate the effectiveness of these programs, and, more important, the role that these programs play in the context of OSHA's overall mission and resources, before allowing these programs to grow significantly. While the programs have grown astronomically, OSHA never conducted that evaluation.
So, we're taking a hard look at these programs now, particularly in light of some anticipated belt-tightening and serious resource issues in the coming years. Naturally, OSHA is open to any constructive ideas from the Chamber or its members.
In the remaining time we have together this morning, I'd like to update you on OSHA's recent activities.
To lead OSHA under the new administration, President Barack Obama has nominated a distinguished scientist at George Washington University. David Michaels has not only an impressive academic record, but he also has led the worker health and safety program at the Department of Energy.
David and I have been friends for many years and I'm confident that he will bring to OSHA a valuable insight into the role of science in the regulatory process.
David's appointment is awaiting confirmation by the Senate.
Signs of Change
Meanwhile, OSHA is moving forward with an aggressive agenda.
Two major events in the last month exemplify OSHA's renewed focus on enforcement of workplace safety and health standards:
- my testimony before the House Education and Labor Committee (Oct. 29) on increased federal oversight of State OSHA plans
- OSHA's decision (Oct. 30) to issue $87.4 million in proposed penalties to BP for failing to correct potential hazards that continue to threaten workers' health and safety at its refinery in Texas City
State Plan Oversight
Let's look at what these two events mean to OSHA and to you...
When it comes to standards and enforcement, I think that everyone appreciates clarity and consistency, which is why OSHA is strengthening its oversight of state plans.
To be blunt: The deadly shortcomings that we discovered earlier this year during our evaluation of Nevada OSHA's safety program convinced me that we must make significant changes in how federal OSHA oversees all the state plan programs.
To immediately improve our oversight of state plans, I instructed OSHA's regional administrators to use the monitoring tools available to them, and I encouraged them to investigate potential problems more extensively.
In addition, OSHA will conduct formal studies of every state that administers its own program. Our aim is to achieve better performance and consistency throughout all the state plans.
OSHA values state plans. Many have shown that they have the flexibility to deal with workplace hazards that are sometimes not addressed by federal OSHA, and this agency strongly supports their initiative and dedication. Now and in the future, federal OSHA will work closely with state plans and provide assistance before a state's program becomes deficient.
As I testified on Capitol Hill last month, we're not trying to change the nature of the relationship between Federal OSHA and state plans, but we need to speak with one voice and assure American workers that they will receive adequate protection regardless of the state in which they work.
The other significant recent event for OSHA came last month, when we issued the largest proposed penalty in the Agency's history.
Four long years after lax safety conditions at the BP refinery in Texas City, Texas, resulted in a massive explosion, killing 15 workers and injuring 170 others - OSHA determined that the company has failed to correct hazards that continue to threaten workers' health and safety.
On October 30, OSHA issued $87.4 million in proposed penalties to BP.
When BP signed the OSHA settlement from the March 2005 explosion, it agreed to take comprehensive action to protect employees. Instead of living up to that commitment, BP has allowed hundreds of potential hazards to continue unabated.
An $87 million fine won't restore the lives of the workers killed on the job, but we can't let this happen again. We issue fines to get the message across that workplace safety is more than a slogan. It's the law, and the U.S. Department of Labor and OSHA will not tolerate the preventable exposure of workers to hazardous conditions.
Labor Secretary Hilda Solis and I wish that every single business and agency across our Nation would voluntarily achieve levels of workplace safety that not only comply with OSHA standards, but far exceed them.
Certainly, plenty of studies and business leaders support the view that businesses that make worker safety part of their daily operating plan are more productive because they have fewer disruptions and lower expenses caused by preventable injuries and illnesses.
For those workplaces that "get it" and make worker safety and health a business priority, OSHA offers all those compliance assistance tools that I've mentioned - the publications, online eTools, training programs and the On-site Consultation Program, and we're working on more products.
However, for those employers who show callous indifference to the health and safety of their workers, other kinds of incentives are needed to get their attention. I'm talking about those employers ...
- who think Personal Protective Equipment is a luxury or fall protection is a option
- who order workers to dig deep ditches without a trench box
- who gamble with lives by letting combustible dust pile up to explosive levels
- who knowingly expose their workers to poisons that eventually shorten their lives
To correct the perceptions of those employers, OSHA is going back to its roots and getting back into the standards writing business and back into the enforcement business.
And to correct the perception of some employers who think "Oh, we'll fix things if and when anything goes wrong," OSHA is moving its focus from reaction to prevention.
As an example of OSHA's renewed emphasis on enforcement, we're establishing a Severe Violator Enforcement Program that will concentrate resources on employers who demonstrate indifference to their OSH Act obligations. Under this initiative, any systemic problems that we find with an employer's safety and health program will trigger additional, mandatory inspections to ensure compliance.
With more focus on enforcement and standards, OSHA is hiring. The fiscal 2010 budget calls for more inspectors, whistleblower investigators, and standards developers.
I know that you can appreciate OSHA's position. We're moving in the direction of tougher citations and penalties not simply to punish, but to provide a powerful incentive for employers to respect their workers and make protection and prevention part of their daily operations.
Accurate Records, Good Incentives
OSHA is also concerned about accuracy in reporting workplace injuries and illnesses.
On October 1, OSHA announced a new National Emphasis Program to confront recordkeeping problems. Congressional hearings, studies and media reports have all described serious accounts of underreporting, as well as incentive and discipline programs that discourage workers from reporting when they're sick or hurt.
I can't overemphasize the importance of accurate injury and illness records. OSHA uses these numbers to target inspections, set priorities, and determine whether industries and workplaces are taking adequate action to protect the health and safety of their workers.
This isn't bureaucratic paperwork. Accurate recordkeeping is vital information that OSHA and employers need to save lives - and deliberately concealing worker injuries is outrageous, irresponsible corporate behavior that I'm sure no one in this room condones.
OSHA will also scrutinize incentive programs that have the effect of discouraging workers from reporting injuries and illnesses. These include programs that discipline workers who are injured or safety competitions that penalize workers when someone reports an injury or illness.
Let me be absolutely clear: It's one thing to reward workers for doing their jobs safely, but OSHA will not tolerate programs that discourage workers and managers from reporting injuries and illnesses.
Standards and Guidance
Since January, OSHA has accelerated its efforts to develop long-awaited standards addressing hazardous exposure to silica, beryllium, and food flavorings containing diacetyl.
In September, we -
- issued a final rule updating the personal protective equipment consensus standards
- proposed aligning OSHA's standards with the Globally Harmonized System of Classification and Labeling of Hazardous Chemicals
In October, we -
- revised our enforcement policies for fall protection for steel erection
- issued grain handling operators a reminder to follow all required safety measures to protect their workers
- posted a letter of interpretation requiring the use of high-visibility warning garments to protect construction workers in highway work zones
- published an Advance Notice of Proposed Rulemaking to protect workers from combustible dust explosions - and on December 14 we'll hold two stakeholder hearings.
On November 13 we published a final rule to protect workers from acetylene hazards.
Very shortly, we will issue an H1N1 directive to OSHA enforcement personnel on conducting inspections of healthcare facilities.
In the coming months, OSHA will
- publish a cranes and derricks standard
- continue working on a final rule for confined spaces in construction
Training and Education
OSHA continues to strengthen the integrity of its Outreach Training Program by improving how trainers become authorized to teach and by ensuring that these trainers are in compliance with OSHA guidelines. To crack down on fraudulent trainers, the agency recently published an Outreach Trainer Watch List of those who have had their trainer authorizations revoked or suspended.
I also hope the Chamber aggressively promotes the need to prepare our workplaces for pandemic influenza.
A worldwide outbreak of a severe strain of influenza could disrupt our economy and our society for weeks and quite possibly many months. Experts tell us that, in a worst-case situation, employers in affected regions of our country could face as much as 40 percent absenteeism in their workforce. In the best of economic times this would be a huge problem, and in our present situation, we can't afford to wait and see.
To minimize the impact of a pandemic, employers and workers must come together and develop, test and implement a comprehensive plan to protect themselves and sustain their business operations.
You may be aware that earlier this month [U.S. House Education and Labor Committee] Chairman Miller and Congresswoman Woolsey introduced H.R. 3991, the Emergency Influenza Containment Act. When applied to employers with 15 or more employees, H.R. 3991 would require employers who direct employees to stay home from work due to symptoms of a contagious illness - such as the H1N1 flu - to provide up to five days of paid sick leave. Employers that currently offer at least five days of paid sick leave would be exempt. Like you, OSHA and DOL will be following the bill's progress.
Meanwhile, I hope you will urge business owners to visit OSHA's Pandemic Flu Web page and use the free resources to develop a plan for their workplaces today.
Taking a longer view of workplace safety and health reform, we're looking to fix fundamental problems in the way OSHA creates standards.
Some standards have taken more than a decade to establish; that's not an acceptable, timely response when we determine that workers are in danger. Keeping employers in the dark for years at a time, with no clear direction on what to do about potential and costly workplace hazards - isn't helping business owners either.
So, if we're going to move ahead on more and better standards, we need to find ways to streamline the cumbersome, lengthy rulemaking process.
As I noted earlier, we also have to address the question of musculoskeletal injuries, which we all recognize is not only the most serious workplace safety and health problem facing American workers, but also the biggest political issue that this agency will have to face in this administration.
Yet, I believe that responsible employers are looking for direction on what to do about ergonomic issues that, unheeded and uncorrected, cost them millions of dollars in crippling worker injuries and illnesses every year. I can't imagine how American businesses can afford to ignore this problem, especially when there are known, sound, scientific solutions. What's missing is awareness and will.
As we consider how to approach this and other workplace challenges, OSHA will need allies in the progressive business community who, instead of instantly rejecting every new OSHA initiative, will work constructively with America's labor unions to find the best way to achieve what we all want: Safe workplaces for our Nation's workers.
I invite this committee and the U.S. Chamber of Commerce to join OSHA in finding ways to eliminate thousands of unnecessary and preventable illness, injuries and deaths in workplaces all across America.
I've never thought that "commerce" and "worker safety" were mutually exclusive terms. In fact, I hope you agree with me that the two terms are mutually dependent.