Setting the Safety Standard

Setting the Safety Standard

Is the Occupational Safety and Health Administration gearing up for a major expansion of its standards-setting power?

It's a familiar debate: Occupational safety practitioners and unions maintain that OSHA regulations keep U.S. workplaces safe and contribute to fewer injuries, improved productivity and reduced workers' compensation costs. Many manufacturers argue, however, that passing additional safety standards only adds to an onerous and costly regulatory environment in the United States and makes it less competitive in the global economy.

Two Congressional hearings in the last year have focused on this very issue. During an Oct. 5, 2011, House Subcommittee on Workforce Protection hearing, Reps. John Kline, R-Minn., and Tim Walberg, R-Mich., suggested that federal Occupational Safety and Health Administration standards are "job-killing" regulations. Months earlier, in February, witnesses at another hearing held by the same House subcommittee criticized OSHA's impact on businesses.

Throughout the criticism, Assistant Secretary of Labor for Occupational Safety and Health David Michaels insists the U.S. workforce needs regulations to remain safe and competitive.

"Despite concerns about the effect of regulation on American business, there is clear evidence that OSHA's common-sense regulations have made working conditions in this country today far safer than 40 years ago when the agency was created, while at the same time protecting American jobs," Michaels said in a statement following the Feb. 15, 2011, hearing. "OSHA standards don't just prevent worker injuries and illnesses. They also drive technological innovation, making industries more competitive."

A Different Approach

According to Aaron Trippler, director of government affairs for the American Industrial Hygiene Association, which serves occupational health and safety professionals practicing industrial hygiene, OSHA "literally had no standards come out with any meaning whatsoever" in the last three years. Excluding the hazard-communication standard, which OSHA announced as a final rule March 20 to align the agency's current hazcom standard with the Globally Harmonized System, Trippler doesn't expect to see any regulations of significance pass in the near future.

"Despite concerns about the effect of regulation on American business, there is clear evidence that OSHA's common-sense regulations have made working conditions in this country today far safer than 40 years ago when the agency was created, while at the same time protecting American jobs"
-- David Michaels
assistant secretary of labor for
Occupational Safety and Health

"You're always going to hear industry say that regulations are job killing, and you're always going to hear labor say we need more regulations. That doesn't change. What has happened is that OSHA is trying to take a different approach to things," Trippler says. "OSHA has moved into an area of trying to accomplish something other than through the regulatory process. I don't think it's necessarily worked, but I can understand the reasons to try, because the regulatory process takes so long."

OSHA's regulatory agendas often have been described as "ambitious," but ambition has not translated into new standards, which can take many years to promulgate. For example, after the fatal February 2008 Imperial Sugar Co. combustible dust explosion in Port Wentworth, Ga., safety stakeholders urged OSHA to develop a combustible dust standard. While OSHA has added this item to its regulatory agenda, no one expects a standard anytime soon. In fact, Trippler questions whether it would be worth the time and cost to enact a standard that might only impact 1% of the population.

OSHA has responded to this challenge by getting creative -- particularly through its proposed Injury and Illness Prevention Program, or I2P2, a regulation that would compel employers to "find and fix" hazards in the workplace. Trippler says I2P2 exemplifies how Michaels is attempting to address occupational safety concerns in an innovative way rather than attempt to regulate every hazard or safety concern.

"I2P2 is a perfect example of OSHA saying we can't do business the way we used to do it," Trippler says.

Top Priority

Michaels has made it clear that I2P2 is his top priority as OSHA administrator. This standard likely would be broad enough to cover a range of hazards, freeing OSHA from spending years trying to promulgate regulations on individual issues. During an October 2010 keynote at the National Safety Council Congress and Expo, Michaels said I2P2 "represents a fundamental change in how OSHA will work and also how employers and OSHA will cooperate in safety. Instead of waiting for a fatality or tragedy, employers must come up with a comprehensive plan to find hazards and then fix them."

James Thatcher, EHS team lead at Encana Oil & Gas Inc., calls I2P2 "a very good safety and health-management system." He adds that today, safety training often surrounds a specific OSHA hazard and neglects to consider hazard recognition and situational awareness.

"When you look at statistics, that's what's getting people hurt," Thatcher says. "They might have had all the training in the world on the standard, but they don't know how to recognize a hazard." I2P2, he suggests, may be able to change that. He also believes the proposal could help improve employee accountability.

"If you say safety's not my responsibility, it's my company's responsibility or it's the Fed's responsibility, then you become a passenger in the process and aren't helping drive the level of safeness that you want in your work area," Thatcher says. "I think I2P2 will help that process along if it's delivered correctly. We can build that self-accountability [to improve safety]."

I2P2: Catchall or Burden on Business?

Some in industry, however, remain concerned that such a broad standard gives OSHA too much control and could have a negative impact on business.

Fifteen U.S. states currently have mandatory regulations requiring some or all employers to implement injury and illness prevention programs.

OSHA has held stakeholder meetings concerning I2P2 and released a white paper making the case for such a standard but has not yet produced a draft rule. That means the rule's scope remains unclear. Trippler says safety stakeholders can expect OSHA to produce a proposal for comments in about six months or so -- most likely after the November presidential election.

"You've got OSHA stating, 'You know what the hazard is in your workplace. You address it, and if you don't, we'll come in.' That concept sounds good because they don't have time to do standards anymore. From industry's perspective, though, they're saying wait a minute, you're basically saying you can come in for anything now," Trippler explains.

While much remains unknown about the I2P2 proposal, some stakeholders and those in industry are already concerned about its impact on business. Larry Wood, operations manager for Pacific Corrugated Pipe Co.'s Eugene, Ore., plant, is particularly concerned how I2P2 might affect small businesses and manufacturers.

"It gets close to the point where you need full-time people administering those [programs], and small businesses trying to survive can't afford that," Wood says. "If you don't do it, you're subject to fines and penalties. It's just a burden that small businesses don't need."

Trippler adds that the business community might worry the rule will be too broad and open-ended. And then there's the ergonomics issue. In the past, Michaels has stated that while OSHA has no plans to introduce a specific ergonomics standard, I2P2 could be used to address this issue.

"That opens up a can of worms," Trippler says. "Where do you draw the line? That's where industry's coming from."

Enforcement Ramps Up

OSHA has put more emphasis on enforcement under Michael's leadership. A December 2010 OMB Watch study revealed that under the Obama administration, OSHA inspectors have increased the number of citations for health and safety violations they uncover. The report also revealed that OSHA officials were placing more focus on high-risk sectors and repeat violators.

While Trippler acknowledges enforcement has "no doubt" increased during Michaels' tenure, he does not consider this increase to be a burden on industry. "I think everyone supports the fact that you have to go after the bad apples," he explains. "The enforcement area has increased, but I think it's increased in the right way."

Wood, meanwhile, remains wary of how I2P2 could be enforced. "I dislike governmental agencies' use of the big stick approach for enforcement; that can really hurt businesses as well," he says.

OSHA's Michaels and safety stakeholders, meanwhile, continue to stress that safety regulations have a positive influence on industry. In his February 2011 statement, Michaels pointed out that failing "to issue sensible regulations endangers not only workers' health and safety but also hurts U.S. competitiveness." He used OSHA's noise standard as an example, calling it "weak" and claiming it gives employers no incentive to buy quieter machines, which allows European manufacturers an edge in building this type of machinery.

While OSHA may never escape the criticism that regulations are a burden to business, Michaels remains firm in expressing the worth of safety standards: "We know that OSHA regulations don't kill jobs," he testified during the October 2011 House hearing. "They stop jobs from killing workers."

You can find additional safety-related content on IndustryWeek's sister publication EHS Today.

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