Under normal circumstances, a typical look at safety for the upcoming year would begin with a review of the recent activity of the Occupational Safety and Health Administration (OSHA), its strategic plan and 2009 budget. But, these aren’t normal circumstances. In the words of new President Barack Obama, “Our time for change has come.” We are entering a period not seen in years: Democratic control of the presidency, Senate and House. In this political environment, OSHA supporters expect much. The question is—given current conditions and all the issues facing the new administration—will actions meet expectations?
A look at Obama’s campaign, as well as his history with the Senate, reveals much about possible actions taken by his administration. In his 2004 Senatorial campaign, he expressed support for bringing back the ergonomics standard. He signed on as a co-sponsor with 23 other senators to support Sen. Edward Kennedy’s bill S.1244, the Protecting America’s Workers Act. During his presidential campaign, he visited factories across the nation, criticizing the Bush administration’s safety and health policies and procedures.
The Protecting America’s Workers Act would cover more workers, increase penalties, update whistleblower protection, and enhance public accountability for safety violations. Under this act, federal, state and local employers would be added to the workplaces covered by the original Occupational Safety and Health Act. This would include electricians working for states, counties and municipalities. Fines limits for “repeat” and “willful” violations would go from $70,000 to $100,000. Fines for “serious” and “other than serious” violations would increase from $7,000 to $10,000. The act would also allow felony charges to be levied against employers for repeated and willful violations that result in death or serious injury. Prison terms could be increased to 10 years. The update to the whistleblower protection would incorporate successful administrative procedures found in other laws, such as the Surface Transportation Act. With respect to accountability, the act would give workers and their families the right to meet with OSHA personnel investigating complaints. In addition, all cases involving death or serious incidents of injury must be investigated.
With respect to Obama’s thoughts on reviving the ergonomic regulation, the time is ripe. On Nov. 14, 2000, after much debate, OSHA issued a standard on ergonomics under a Democratic Congress. It became effective on Jan. 14, 2001, and then was shot down by the incoming Republican Congress. On March 20, 2001, President Bush signed the congressional resolution repealing the standard because of the substantial costs and compliance challenges. The regulation would have required employers to implement a program and procedures to address musculoskeletal disorders, such as carpal tunnel syndrome, lower back pain and tendonitis. The estimated cost of compliance would have been as much as $100 billion. If OSHA were to resubmit the standard, as promised by President Obama with the Congress under Democratic control, success is possible despite the cost.
Of course, the greatest potential for change rests with the emphasis OSHA places on its activity within its current framework of operations. Its strategic plan calls for a balanced approach to include the following:
1. Strong, fair and effective enforcement
2. Outreach, education and compliance assistance
3. Cooperative and voluntary programs
OSHA has done much to work cooperatively with employers to gain voluntary compliance. In contrast, Obama has offered that OSHA relies too heavily on “weak voluntary programs at the expense of proven enforcement mechanisms.” He said more effort should be spent on performing inspections with heavy fines. He also said OSHA has not spent enough effort on developing new standards and been “lax” in the enforcement of existing standards. The expectation is that an OSHA under President Obama will abandon cooperative programs for enforcement and push new standards.
Without looking further at the issues that may affect the president’s actions, the expectation of more standards being issued under his administration is without question. During the Bush administration, fewer new OSHA standards were promulgated than during the terms of any of his predecessors. And although, most recently, OSHA has not eliminated standards, it has made an effort to trim parts of standards that it felt were inefficient, outdated and unnecessarily burdensome. It is doubtful this will continue.
Like all campaign promises, these statements and expectations as well as others by Obama to avoid OSHA staff cuts, increase funding and provide more safety training, must be re-evaluated by Obama as president. The Obama administration enters 2009 with an established budget and no representation in key positions within OSHA. All actions taken that affect business must consider the effects on our struggling economy as a whole. When action will be taken on any issue, it will be based on its priority with respect to all other issues facing this administration. The incoming administration must also take a close look at what the true impact of the OSHA programs during the Bush administration has been. Finally, the administration needs to be prepared to battle those groups with significant interest in safety and health that offer different perspectives on certain regulations.
At present, the 2009 OSHA budget is $501.7 million. This represents an overall increase of about $15.7 million over the 2008 budget. As seen in the table on the next page, an $11.3 million increase is dedicated to supporting enforcement programs and $5.2 million to providing compliance assistance to employers and employees, especially small businesses. Again, the administration has proposed to eliminate training grants. It may be of significance that the two previous budgets proposed to eliminate grant funding, but later reinstated monies for this purpose. It is expected that, with or without a new administration, the same will occur for 2009.
There is no doubt the incoming administration will reallocate the funds. However, the problem is where it will come up with funds to execute all of the actions promised. To put this in perspective, the 2009 Bush budget still falls well below previous budgets when adjusted for inflation. In 2008 dollars, this year’s budget is actually a $4.6 million decrease and $25.7 million less than the 2001 budget. Juggling the funds to get anything accomplished will require an innovative leader.
This leads us to the next difficulty facing President Obama in his attempt to make changes to OSHA. Edwin G. Foulke Jr., George W. Bush’s assistant secretary of labor for Occupational Safety and Health, left OSHA just after the election in November. Obama will need to appoint a new chief to OSHA. Currently Thomas M. Stohler is the acting assistant secretary of labor for OSHA. Although Stohler is highly qualified and experienced, it will be difficult for President Obama’s administration to begin its initiatives until it has one of its own in place. It is unlikely that an administrator will be in place until later in 2009. More than likely, it will be 2010 before the new OSHA begins to address issues, such as ergonomics, combustible dust and silica. Slowing the new chief down further will be dealing with low morale, questions on the validity of OSHA’s injury data and employer settlements made with OSHA attorneys that significantly reduce citations.
More important are the delays coming from non-OSHA-related issues that seem to have taken a higher priority. Safety and health friendly legislators like Sen. Kennedy, and supporters (e.g., unions) alike will be focused on healthcare legislation and the Employee Free Choice Act. The Employee Free Choice Act would change union elections. As a sign of OSHA’s status in relation to these other issues, we can look to Obama’s 64-page, “Blueprint for Change,” created during his campaign. Not one reference to OSHA or workplace safety was included in this plan.
Regardless of the delays in appointments or other direction given to OSHA, the atmosphere in 2009 is sure to change. The focus will be on enforcement. Under President Bush’s budget, 37,700 inspections were proposed for this year. The actual figure under the new administration is guaranteed to be higher, along with more citations and greater fines. Programs such as OSHA’s Enhanced Enforcement Program, which focuses on employers who ignore their safety and health obligations, and the Local and National Emphasis Programs, which focus on specific industries or safety and health issues, will be encouraged.
However, it is doubtful cooperative programs will be abandoned, despite Obama’s remarks. These programs date back before the Bush years, have proven effective, and include partnerships between unions, trade associations, union and nonunion employers, and OSHA. President Obama likely will want to keep or even expand the programs.
There will be even more changes as the Obama administration takes shape. The Protecting America’s Workers Act and ergonomics standard will be brought to the forefront and may succeed in the upcoming political environment. Democratic control or not, there will still be much debate and many new ideas on how to improve workplace safety. Don’t be surprised to see unique proposals such as a requirement for every employer to be inspected at least once per year by a private inspector with oversight or auditing by OSHA.
O’CONNOR is with Intec, a safety consulting, training and publishing firm that offers on-site assistance and produces manuals, training videos and software for contractors. Based in Waverly, Pa., he can be reached at 607.624.7159 or email@example.com.