[Senate Hearing 110-40]
[From the U.S. Government Publishing Office]
S. Hrg. 110-40
IS OSHA WORKING FOR WORKING PEOPLE?
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON EMPLOYMENT AND WORKPLACE SAFETY
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
ON
EXAMINING THE EFFECTIVENESS OF THE OCCUPATIONAL SAFETY AND HEALTH
ADMINISTRATION (OSHA)
__________
APRIL 26, 2007
__________
Printed for the use of the Committee on Health, Education, Labor, and
Pensions
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
senate
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
EDWARD M. KENNEDY, Massachusetts, Chairman
CHRISTOPHER J. DODD, Connecticut MICHAEL B. ENZI, Wyoming
TOM HARKIN, Iowa JUDD GREGG, New Hampshire
BARBARA A. MIKULSKI, Maryland LAMAR ALEXANDER, Tennessee
JEFF BINGAMAN, New Mexico RICHARD BURR, North Carolina
PATTY MURRAY, Washington JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York ORRIN G. HATCH, Utah
BARACK OBAMA, Illinois PAT ROBERTS, Kansas
BERNARD SANDERS (I), Vermont WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio TOM COBURN, M.D., Oklahoma
J. Michael Myers, Staff Director and Chief Counsel
Katherine Brunett McGuire, Minority Staff Director
______
Subcommittee on Employment and Workplace Safety
PATTY MURRAY, Washington, Chairman
CHRISTOPHER J. DODD, Connecticut JOHNNY ISAKSON, Georgia
TOM HARKIN, Iowa RICHARD BURR, North Carolina
BARBARA A. MIKULSKI, Maryland LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York PAT ROBERTS, Kansas
BARACK OBAMA, Illinois WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio TOM COBURN, M.D., Oklahoma
EDWARD M. KENNEDY, Massachusetts MICHAEL B. ENZI, Wyoming (ex
(ex officio) officio)
William C. Kamela, Staff Director
Glee Smith, Minority Staff Director
(ii)
C O N T E N T S
__________
STATEMENTS
THURSDAY, APRIL 26, 2007
Page
Murray, Hon. Patty, Chairman, Subcommittee on Employment and
Workplace Safety, opening statement............................ 1
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia,
opening statement.............................................. 2
Michaels, David, Ph.D., Research Professor and Associate Chairman
of the Department of Environmental and Occupational Health,
George Washington University, Washington, DC................... 6
Prepared statement........................................... 8
Seminario, Peg, Director, Occupational Safety and Health, AFL-CIO
Washington, DC................................................. 16
Prepared statement........................................... 18
Compagna, Konnie, R.N., Nurse at Valley Medical Center, Kent,
Washington..................................................... 30
Prepared statement........................................... 32
Cecich, Thomas, CIH, CSP, President, TFC and Associates, Apex,
North Carolina................................................. 35
Prepared statement........................................... 36
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Kennedy, Hon. Edward M., Chairman, Committee on Health,
Education, Labor, and Pensions, prepared statement......... 48
Enzi, Hon. Michael B., a U.S. Senator from the State of
Wyoming, prepared statement................................ 49
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio,
prepared statement......................................... 50
Worker Safety Report by the Democratic Staff of the HELP
Commmittee................................................. 51
Response to questions of Senator Kennedy by:
David Michaels........................................... 55
Response to questions of Senator Enzi by:
Peg Seminario............................................ 56
David Michaels........................................... 58
(iii)
IS OSHA WORKING FOR WORKING PEOPLE?
----------
THURSDAY, APRIL 26, 2007
U.S. Senate,
Subcommittee on Employment and Workplace Safety, Committee
on Health, Education, Labor, and Pensions,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:00 a.m. in
Room SD-124, Dirksen Senate Office Building, Hon. Patty Murray,
chairman of the subcommittee, presiding.
Present: Senators Murray and Isakson.
Opening Statement of Senator Murray
Senator Murray. This subcommittee will come to order. I
want to thank Senator Isakson for joining me today for this
hearing. We may have some other Senators as well. I want to
thank all four of our witnesses for coming this morning and
sharing your expertise on the important issue of employment and
workplace safety. We really appreciate everybody being flexible
with the time change. Senator Isakson has to leave early and I
do as well, to manage a bill on the floor.
We want all of you to know that your words and your
testimony are critically important to this committee.
Everything you have will be submitted into the record as far as
your written testimony. I will likely have some questions as
well as other committee members that we will submit to you and
ask for your response. This will all be part of the committee
record.
Athough this committee may feel shortened and a tad bit
rushed, we really do feel that this is a critical issue and we
want to make sure we get all of your information as we look
into this issue.
The Landmark Occupational Safety and Health Act was passed
more than 35 years ago to a lot of acclaim and promise and for
many years, we did see workplace injury and death rates
steadily drop because of vigorous enforcement and new safety
standards that had been in place.
Over the last 6 years, as I have watched, I have become
deeply concerned that it appears that OSHA is no longer living
up to its mission, which is to ensure safe and healthful
working conditions for our working men and women.
Unfortunately, we have seen both a tremendous human and a
financial cost to OSHA's shortcomings. In fact, Liberty Mutual
Insurance has estimated that businesses pay up to $300 billion
annually in direct and indirect costs for workplace injuries
and illnesses. What concerns me as much if not more, is the
people--people like the , construction and low-wage workers who
come to my office and talk to me about the problems they have
and the protections that they deserve when they go to work
every day.
Unfortunately, under this Administration, we have
continually seen OSHA dragging its feet and nowhere is that
more true than in the area of setting worker protection
standards. In the last 6 years, OSHA has only set one new
standard, despite all the changes in the workplace, one new
standard and that was under court order. So today, workers are
continuing to become ill and injured from a variety of
workplace dangers and yet as we've seen, OSHA is setting no new
standards to protect them.
In fact, when this Administration took office, OSHA threw
out all the ergonomic standards that protected workers that
were prone to lifting and back injuries at work. States like my
own have now had to write their standards to safeguard these
workers. I am concerned that it appears far too often that OSHA
has decided to disregard proven science and instead, just
simply rely on suggestions, consultations or partnerships with
industry. To me, that sounds like the classic case of the fox
guarding the henhouse.
We hear words like voluntary compliance but I'm concerned
that ignores the safety hazards that we see in 90 percent of
our American workplaces. I think it is really important that we
keep in mind that it is our responsibility to oversee this and
that we cannot just simply watch as 6,000 Americans die on the
job every year and not pay attention. That is 16 people a day,
nearly 6,000 people a year, who are dying today in work-related
accidents across the country and there are serious questions
about OSHA's fatality and injury reporting methods. So the
bottom line is that even if we believe OSHA's numbers are
correct and that worker injury and deaths are going down, 16
deaths a day is still unacceptable to me.
I do want to mention my disappointment with OSHA's
inability to provide assistance in my efforts to ban asbestos.
Instead of working with me to protect the American people from
this deadly chemical, OSHA has been a consistent roadblock. It
appears very clear to me that more work needs to be done to
reform OSHA and later today, Senator Kennedy is going to be
introducing his Protecting America's Worker Act, which I
believe will offer us real solutions to real problems and I'm
proud to be a co-sponsor of that legislation.
Again, I want to thank all of our witnesses for being with
us today so we can really look at how we can make OSHA work for
working America.
Senator Isakson.
Opening Statement of Senator Isakson
Senator Isakson. Well, thank you, Chairman Murray, for
calling this important hearing. Good morning and thank you to
all our witnesses for taking your time to share your thoughts
and your experience and your expertise with all of us. Working
Americans spend almost half their waking hours at work and it's
important that we ensure they and their employers are committed
to workplace safety.
The Bush administration has adopted an effective and
proactive approach to workplace safety, emphasizing compliance,
assistance and cooperative approaches. It has produced results.
The rate of workplace fatalities is now down to 4 deaths per
100,000 workers and the injury and illness rate is down to 4.6
per 100 workers. Both of these are lowest levels in the 32-year
history of OSHA.
Now, I'm a businessman. I'm not a fox guarding a henhouse
as a businessman, but I am someone whose assets have two legs.
If they're not working, if they are not healthy, if they're not
safe, my business is not producing. In the 33 years that I ran
a business and also at the same period of time, was very active
in the Chamber of Commerce, I saw the positive effects of OSHA
as a catalytic agent to ensure that business put safety first
and the results have been pretty astounding. Many of you
understand one of the biggest costs you can have in a business
is workers' compensation, particularly a business like mine
where although I had low injury work in terms of sales
associates, I had very high injury possibilities in a golf
course development, a construction company, which obviously the
workers' compensation rates are much higher.
I have long supported pre-employment drug screening because
so many accidents took place, particularly in the construction
industry, because employees who came in actually were under the
influence of some kind of a narcotic or alcohol. Pre-employment
screening saw to it that companies knew if they had somebody
applying who had used or was using narcotics or illegal
substances.
So I am really glad we're having the hearing today because
as we focus on things that are wrong, we ought to also focus on
things that are right and being proactive and putting safety
first is important.
Ana Cablic, an Hispanic woman, owner of a large
construction business in Georgia testified at my request before
a recent full committee hearing. Her company's motto, which is
on her cards and her signs, which is Safe, Correct, Quick,
which demonstrated to me that here is a business owner that
understands the first principle in a three-legged stool of
success is safety. UPS, a Georgia company invites me to their
safety awards annually. I went to an award 2 weeks ago and gave
a guy his brown jacket with yellow letters for having 30 years
of employment, 3 million miles of driving and never having an
accident. They illuminate safety because they know how
important it is and the Chairman is exactly right.
The cost of an unsafe workplace to a business is
unacceptable and intolerable. The loss of life to an individual
because of a lack of good oversight or attention to safety is
inexcusable and I look forward to working with the Chairman to
find those partnerships where business, OSHA and the Congress
together can work toward the positive programs that provide
safety for workers.
statistical charts
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Thank you, Madam Chairman.
Senator Murray. Thank you very much, Senator Isakson, for
being one of those good business owners and for being here
today. Just so you all know, that's a regional dialectical
difference. I say OSHA (O-SHA), he says OSHA (AH-SHA).
[Laughter.]
With that, we will turn to our witnesses and again, you
will all be given 5 minutes. The timer is in front of you and
we would ask you to stick to the time limit this morning. I
will start tapping up here when you're getting close to time.
If you can't get through all of your written testimony, it will
be part of the written record. We do have copies of it. We want
to make sure we've got some time for our questions today as
well.
We are going to begin with Dr. David Michaels. He is a
Research Professor and Acting Chairman of the Department of
Environmental and Occupational Health at the School of Public
Health and Health Services at George Washington University. He
directs the project on Scientific Knowledge and Public Policy
and his research areas include studies of pressmen,
construction workers and bus drivers.
Margaret Seminario is the Director of Occupational Safety
and Health for the AFL-CIO. She has worked for the AFL-CIO
since 1977 and since 1990, has been responsible for directing
the AFL-CIO's program on Safety and Health.
Konnie Compagna--did I say your name right?
Ms. Compagna. Yes.
Senator Murray. Is an R.N. from Washington State and a
member of the Service Employees International Union. She has
been a nurse for 38 years and is currently a labor and delivery
nurse at Valley Medical in Washington.
Thomas Cecich is President of TFC and Associates. He is
with a Safety, Health and Environmental Consulting Firm. He was
previously Vice President of Global Business Support Corporate
Environment Health and Safety at GlaxoSmithKline and Chair of
the American Society of Safety Engineers.
We thank all of you for coming and sharing your expertise
with us and Dr. Michaels, we're going to begin with you.
STATEMENT OF DAVID MICHAELS, PH.D., RESEARCH PROFESSOR AND
ASSOCIATE CHAIRMAN OF THE DEPARTMENT OF ENVIRONMENTAL AND
OCCUPATIONAL HEALTH, GEORGE WASHINGTON UNIVERSITY, WASHINGTON,
DC.
Mr. Michaels. I would like to thank Chairperson Murray and
Ranking Member Isakson for inviting me to testify here today.
Occupational illnesses and injuries are a serious and
significant public health problem. BLS statistics, the ones
OSHA relies on to make claims about the state of workplace
injuries and illnesses dramatically underestimate the burden
and therefore also the costs of work-related conditions.
Recent sophisticated studies have shown BLS data to be
incomplete and misleading. Researchers at Michigan State
University, using the capture/recapture method, identified the
portion of those cases reported to workers' compensation and
other data systems that are also captured in the BLS reporting
system. The researchers found that BLS statistics include only
about a third of all work-related injuries and illnesses. Two
thirds are simply missed. So using the Department of Labor's
data might conclude the risk of injury in any given year is
about 1 in 15. The actual risk is probably closer to 1 in 5.
Senators, you have no doubt been told that the rate of
workplace injuries is decreasing but using data logs completed
by employers, BLS reports the rate of occupational injuries has
been declining steadily for the last 15 years, dropping 36
percent between 1992 and 2003.
A newly published analysis of these data attributes 83
percent of this decline to changes in OSHA recordkeeping rules.
These findings are also supported by the results of a different
study, which found that from 1995 to 2003, there was no drop in
occupational traumatic injuries reported to a trauma registry,
although BLS reported injuries were decreasing.
The accuracy and completeness of occupational illness
statistics are even more questionable. Most occupational
illnesses that are caused by toxic exposures are never recorded
in any system as work-related, either because they occurred
after the worker left the employment where the exposure
occurred or because the link with occupational exposure was
never made.
The second point I'd like to make today that is in the area
of diseases caused by toxic exposures, OSHA has done little to
protect workers from emerging hazards and does a poor job
protecting workers from any other older industry hazards.
Members of this committee, on April 26, 2002, exactly 5
years ago today, the CDC published a well disseminated report
about the risk of a terrible and sometimes fatal disease,
bronchiolitis obliterans. They found the disease in workers in
microwave popcorn factories. Dozens of workers at factories
where artificial butter flavors are produced, mixed or applied
have become sick and at least three workers have died. Others
are awaiting lung transplants.
While the index cases were seen at microwave popcorn
factories, scientists now recognize a potential health risk to
thousands of other food industry employees using diacetyl, the
primary component of artificial butter flavor. Eight months
ago, two unions petitioned OSHA for an emergency temporary
standard to protect workers from this chemical. The petition
also asked OSHA to initiate a national emphasis program
focusing on all factories where workers were exposed to the
chemical. I was among a group of 42 scientists who signed a
letter to the Department of Labor in support of the petition.
OSHA's response to this occupational crisis has been
minimal at best. Given the severity of the health effects, one
has to wonder, where was OSHA's sense of urgency? Workers lungs
are being destroyed by these exposures and for months, the
agency's only response was to say the matter was under study.
One OSHA official was quoted in a newspaper saying the agency's
review of the petition might take 2 years. Then, 2 days ago,
perhaps in anticipation of the congressional hearings this
week, OSHA announced a National Emphasis Program limited to
microwave popcorn plants.
OSHA's decision to focus the program solely on the
microwave popcorn industry is misguided at best and cynical at
worst. For the last 5 years, since the CDC alert, OSHA
standards and enforcement have been nothing. Now, with Congress
finally focusing on the agency, OSHA has chosen to use its
scarce resources in the one part of the food industry where
NIOSH has already done extensive work assisting employers in
controlling exposure.
Cases of bronchiolitis obliteran have been identified among
workers that manufacture and mix flavorings as well in bakeries
and snack food factories. One worker developed this disease
from mixing flavoring chemicals for dog food. Why would OSHA
inspect these factories or the large, industrial bakeries where
diacetyl containing products like Twinkies are manufactured?
Diacetyl is not the only chemical OSHA should regulate but
does not. There are huge gaps in OSHA standards and for the
chemical hazards that OSHA does regulate, the exposure limits
are distressingly out of date.
I strongly believe that to better protect American workers
from workplace hazards, OSHA needs to move away from hazard-
specific standard setting. I outline in my testimony some steps
OSHA could implement immediately. Others will require
legislation.
In summary, my answer to the question posed in this
hearing, is OSHA working for working people, is no. OSHA has
the potential to contribute to a real reduction in workplace
injuries and illnesses, preventing countless injuries and
saving hundreds if not thousands of lives each year. Sadly, it
is not fulfilling this promise.
I hope this committee will assist in moving OSHA in the
right direction for being an agency fully committed to
protecting the health and safety of America's workers. I'd be
happy to answer any of your questions.
[The prepared statement of Mr. Michaels follows:]
Prepared Statement of David Michaels, Ph.D., M.P.H.
My name is David Michaels. I am an epidemiologist. I am Research
Professor and Acting Chairman of the Department of Environmental and
Occupational Health at The George Washington University School of
Public Health and Health Services, and Director of the Project on
Scientific Knowledge and Public Policy (SKAPP). From 1998 to January
2001, I served as Assistant Secretary of Energy for Environment, Safety
and Health, and was responsible for protecting the health of workers,
communities and the environment around the Nation's nuclear weapons
facilities.
I would like to thank Chairperson Murray, Ranking Member Isakson
and the other members of the committee for inviting me to testify here
today.
The number and cost of preventable work-related injuries and
illnesses occurring in the United States are unacceptably high.
Furthermore, the true incidence of these conditions is far higher than
reported by the Bureau of Labor Statistics since these data do not
include approximately two-thirds of occupational injuries and
illnesses.
Work-related injuries and illnesses are a significant problem--
large numbers of workers are injured, disabled or even killed on the
job. What is most troubling is that the vast majority of these are
preventable. The Bureau of Labor Statistics (BLS) reports that in many
private sector manufacturing jobs, a worker has an annual risk of being
injured of about one in seven or one in eight. The industries where
workers have injury rates 2-3 times higher than the rates for the
entire private sector include truck trailer \1\ and camper
manufacturing, \2\ iron foundries and truss manufacturing.\3\ Higher
than average injury rates are not confined to manufacturing jobs;
workers in hog farming, construction framing and nursing homes are
examples of groups with dramatically higher risk of work-related
injury.\4\
As distressing as these statistics are, however, it is likely that
the true incidence of workplace injury and illness is far higher than
BLS reports, since the Labor Department's estimates clearly and
dramatically underestimate the number of workers injured.
NIOSH-funded researchers at Michigan State University, led by Dr.
Kenneth Rosenman, applied a capture-recapture methodology to identify
the portion of those occupational injuries and illnesses reported to
the workers compensation and other systems are also captured in the BLS
reporting system that serves as the basis for national statistics on
workplace injury and illnesses--and widely used to make statements
about both the need for and success of OSHA. The researchers found that
BLS statistics include only about one-third of all work-related
injuries and illnesses. Two-thirds are simply missed.\5\ (This is not
the first study to report this problem. An earlier study by a different
group of researchers estimated the BLS missed between 33 percent and 69
percent of all injuries.\6\)
How does this translate into the risk faced by individual workers?
Using the comprehensive estimate of work-related injuries and
illnesses, the Michigan State researchers estimated that one in every
five workers in Michigan develops a work-related injury or illness
(although this figure may be somewhat inflated because some workers
have more than one injury or illness per year). If only the BLS
underestimate was used, it would appear that the risk was only 1 in 15.
This approach is useful in estimating the true incidence of work-
related injury, but this method cannot overcome the structural
impediments to collecting accurate data on occupational illnesses. Most
occupational illnesses that are caused by toxic exposures are never
recorded as work-related, either because they occurred after the worker
left the employment where the exposure occurred or because the link
with occupational exposure was never made.
OSHA enforcement does not appear to be effective in further
reducing injury rates. While BLS reports a decrease in injury rates,
sophisticated statistical analyses indicate that most of this decrease
can be attributable to changes in OSHA recordkeeping rules.
Even with the limitations of the BLS data system, it seems
reasonable to conclude that OSHA has made an important contribution to
reducing work-related fatalities, since these are the workplace events
most likely to be reported in the BLS system. The occupational fatality
rate has dropped from 10 (per 100,000 workers) in 1974 \7\ to 4 in 2005
(although part of this decrease may be attributable to the changes in
recording rules discussed below).\8\ Despite this improvement, this
still means that about 16 U.S. workers die each day on the job from
preventable causes like falls from elevated platforms, trench
collapses, explosions, violence, and vehicle crashes.\9\
Using data from the Survey of Occupational Injuries and Illnesses,
based on OSHA logs, BLS reports that the rate of occupational injuries
and illnesses has been declining steadily for the last 15 years, with a
35.8 percent decrease seen between 1992 and 2003. Given the decrease in
manufacturing and mining jobs and the general shift in the U.S. economy
to less hazardous jobs, combined with the decrease in OSHA's regulatory
activities (the number of OSHA inspectors decreased from 1,300 to 1,100
between 1990 and 2003), observers have questioned whether the reported
drop in injury rates could be attributed to OSHA's enforcement
activities.
A sophisticated analysis of BLS data by two University of Illinois
scientists, just published online by the journal Occupational and
Environmental Medicine, attributes 83 percent of the decline in
workplace injuries and illnesses between 1992 and 2003 to changes in
OSHA recordkeeping rules.\10\ These findings are supported by the
results of a different study by the same researchers who found that
from 1995 to 2003, there was no drop in occupational traumatic injuries
reported to the Illinois Trauma Registry.\11\
In terms of occupational illnesses, OSHA has been successful in
reducing exposures to certain widely recognized chemical hazards, and
as a result, has unquestionably saved thousands of lives. Before OSHA
issued its first asbestos standard, uncontrolled exposure to this
carcinogen was widespread. The OSHA lead standard has no doubt
prevented many cases of lead poisoning. The OSHA cotton dust standard
eliminated byssinosis, a once common disease among U.S. textile
workers.\12\ But these successes from decades past should not distract
us from the reality of today's occupational health problems. There are
huge gaps in OSHA standards and, for the chemical hazards that OSHA
does regulate, the permissible exposure limits are distressingly out of
date.
OSHA currently enforces permissible exposure limits for only about
500 chemicals, a small fraction of the thousands of substances present
in the American workplace. OSHA even lacks standards for some of the
more common chemicals; there are OSHA standards for fewer than 200 of
the approximately 3,000 chemicals characterized by the EPA as High
Production Volume (more than a million pounds of the substance is
produced or imported each year). In the more than 35 years since OSHA
began it has issued new standards for only about 30 substances.
The remaining exposure limits were adopted by OSHA in 1970, from
the recommendations of private voluntary organizations like the
American Conference of Governmental Industrial Hygienists (ACGIH). Many
of these exposure limits were already out of date in 1970, when OSHA
adopted them. Moreover, these are not comprehensive standards with
requirements for employers to conduct exposure monitoring, provide
medical surveillance or worker training, but only exposure limits. As a
result, for most hazardous chemicals, OSHA's standards are either
inadequate or totally absent.
One could write a book about the hazards that OSHA has failed to
regulate adequately. Here are a few examples:
Beryllium \13\
Beryllium is a remarkable metal, lighter than aluminum yet stiffer
than steel. Its alloys and compounds exhibit a host of unusual
technical characteristics. At some point in almost every production
process involving beryllium, fine dust or fumes of the metal or its
compound are released into the air. Breathing the tiniest amounts can
cause disability and death from chronic beryllium disease. This metal
is a vital component of nuclear weapons; for many years, the U.S.
Department of Energy (DOE) was the largest consumer of beryllium in the
United States. The current OSHA beryllium standard, 2 ug/m\3\, was
calculated by two Atomic Energy Commission scientists sitting in the
back seat of a taxicab in 1948. By the early 1990s, DOE recognized the
standard was not adequately protective. In 1999, during the period I
was Assistant Secretary, DOE issued a new standard 10 times
stronger.\14\ At the time, OSHA acknowledged that DOE was doing the
right thing with its radically restrictive beryllium standard. Almost 9
years ago, the Assistant Secretary of Labor for OSHA wrote,
``. . . we now believe that our 2 ug/m\3\ PEL does not
adequately protect beryllium-exposed workers from developing
chronic beryllium disease, and there are adequate exposure and
health effects data to support [DOE's] rulemaking.''
The letter continued:
Cases of chronic beryllium disease have occurred in
machinists where 90 percent of the personal exposure samples
found levels of beryllium to be below the detection limit of
0.01 ug/m\3\. . . . Viewed from OSHA's regulatory perspective,
these DOE study results document risk of sensitization to
beryllium of 35-40 per 1,000 workers and risk of chronic
beryllium disease to machinists of 94 per 1,000.\15\
There is really no longer any debate over the inadequacy of the
OSHA beryllium standard. The beryllium industry has acknowledged that
the current OSHA standard of 2 ug/m\3\ is not adequately protective--
the industry's experts recognize that workers get sick at exposure
levels below the current OSHA standard.\16\
In 2000, OSHA committed itself to issuing a more protective
standard, this time by the end of 2001,\17\ but in 2001, early in the
first term of the George W. Bush administration, the agency did a quick
about-face and announced that the agency needed ``a substantial amount
of information'' before it would consider new regulation.\18\ Today,
the Federal Government finds itself in the embarrassing position of
explaining why the employees of DOE and its contractors are now covered
by a workplace rule 10 times more protective than the one covering
workers in the private sector.
Hexavalent Chromium \19\
Since coming into office, the Bush administration has issued only
one new standard protecting workers from a hazardous chemical:
hexavalent chromium (CrVI). The standard was issued only because a
Federal court decision required OSHA to do so. Until last year, OSHA's
standard was 52 ug/m\3\; the new standard is 5 ug/m\3\. This is
certainly an improvement, although OSHA itself estimates that for every
1,000 workers exposed to 5 ug/m\3\ for a working lifetime, between 10
and 45 will develop lung cancer.
By the early 1950s, there was plenty of evidence that hexavalent
chromium was a lung carcinogen. The old standard of 52 ug/m\3\ was
based on data that predated even these 1950s studies. The old standard
came from a 1943 recommendation by the American National Standards
Institute, applying data contained in reports from the 1920s. The 1943
recommendation was chosen because it provided a level of chromium
exposure that would not result in holes developing in the nasal septum
of exposed workers.
When OSHA was starting out in the early 1970s, the cancer risk of
CrVI was well understood. The new agency adopted the old voluntary
limit, but recognized a change was necessary. In 1975, NIOSH urged a
limit of 1 ug/m\3\, basing this recommendation on dozens of studies,
which were remarkable at the time for their focus on this single
carcinogen. Today, OSHA estimates that more than 500,000 U.S. workers
are exposed to CrVI.\20\ It took 30 years and a court order for OSHA to
issue a new standard, albeit one allowing exposure five times higher
than NIOSH recommended in 1975.
Diacetyl \21\
Diacetyl is a commonly used food flavoring and is the primary
constituent of artificial butter flavoring. There is compelling
scientific evidence linking occupational exposure to diacetyl to
bronchiolitis obliterans, a rare, debilitating and sometimes fatal lung
disease. On April 26, 2002, exactly 5 years before the date of this
hearing, NIOSH published a widely disseminated report about the risk of
bronchiolitis obliterans in microwave popcorn factories. Dozens of
workers at factories where these flavors are produced, mixed or applied
have become sick, and at least three workers have died. Others are
awaiting lung transplants. While the index cases were seen at microwave
popcorn factories, scientists now recognize a health risk to thousands
of other food industry employees using diacetyl in manufacturing both
artificial flavorings and associated products including candy,
pastries, and frozen foods. The California Department of Health
Services, for example, recently reported 20 new cases of respiratory
impairment at factories where flavorings are produced; one of the first
cases reported in California was in a worker exposed mixing flavors for
dog food. NIOSH is currently investigating 15 cases of respiratory
disease, including some workers with bronchiolitis obliterans, among
the employees at a single Cincinnati, Ohio flavor manufacturing plant.
In July of 2006, the United Food and Commercial Workers Union
(UFCW) and the International Brotherhood of Teamsters petitioned OSHA
for an emergency temporary standard to protect workers from diacetyl.
SKAPP organized a letter to the Department of Labor, signed by 42 of
the Nation's leading occupational health scientists and physicians, in
support of the union petition.
OSHA's response to this occupational health crisis has been
minimal, at best. Two days ago, perhaps in anticipation of the
congressional hearings this week, OSHA announced a ``national emphasis
program (NEP) to address the hazards and control measures associated
with working in the microwave popcorn industry where butter flavorings
containing diacetyl are used.'' \22\ OSHA's decision to focus a NEP
solely on the microwave popcorn industry is misguided at best and
cynical at worst. By limiting the program to microwave popcorn
facilities, OSHA has chosen to use its limited resources in the one
industry where NIOSH has already done extensive work assisting
employers in controlling diacetyl exposure. Government scientists know
more about exposures in popcorn plants than those in any other type of
factory. Moreover, popcorn plants are among the few factories in the
country where exposure is likely being well controlled, since they have
been the subject of a tremendous amount of work by NIOSH. Cases of
bronchiolitis obliterans have been identified among workers that
manufacture and mix flavorings, as well as in bakeries and snack food
factories. OSHA makes no mention of visiting any of these factories.
One of the agency's extremely important enforcement tools is--or
should be--the ``general duty clause'' \23\ that asserts the obligation
of employers to provide safe working conditions. Until a few years ago,
OSHA inspectors encountering situations in which there was an obvious
hazard but no applicable OSHA standard would cite this clause as the
legal basis for their enforcement actions. Now this is rarely done. The
clause has not been invoked in the case of diacetyl, even though such a
notorious airborne hazard that has caused dozens of workers at numerous
facilities to contract a serious lung disease would appear to be a
logical candidate for such action. Instead, in this case OSHA officials
have taken the position that hazards for which there is no applicable
OSHA standard do ``not fall within OSHA's jurisdiction.'' \24\
Ergonomic Hazards
Work-related musculoskeletal disorders (MSDs) constitute the
largest work-
related injury/illnesses problem in U.S. workplaces, accounting for
fully one-third of occupational injuries and illnesses reported to
BLS.\25\ OSHA first issued voluntary ergonomic guidelines for the
meatpacking industry in 1990, and then-Secretary of Labor Elizabeth
Dole introduced them by explaining:
``These painful and sometimes crippling illnesses now make up
48 percent of all recordable industrial workplace illnesses. We
must do our utmost to protect workers from these hazards, not
only in the meat industry, but all U.S. industries.''
In 2001, the last year in which the information was collected, a
meatpacking worker was 30 times more likely to develop a repetitive
stress injury (RSI) than the average private sector worker.\38\
In late 1999, OSHA proposed a comprehensive standard to protect
more than 27 million workers from ergonomic injuries. The agency
conducted 9 weeks of public hearings and amassed a record of hundreds
of scientific studies on the association between physical exposures in
the workplace (e.g., lifting, bending, reaching) and MSDs. Moreover,
not one, but two National Academy of Science reports also found a
consistent pattern of scientific evidence from epidemiological and
biomechanical studies confirming the relationship between workplace
physical exposures and MSDs.\26\ A final ergonomics standard was
published in November 2000, but in March 2001, it was repealed by the
House and Senate under the Congressional Review Act.\27\
This Senate committee has asked, ``Is OSHA working for working
people?'' My response is that, when you look at the situation with
working men and women and ergonomic hazards, the answer is NO. Work-
related musculoskeletal disorders are by far the leading cause of
workplace injuries, yet there is no OSHA standard to protect workers
from the hazard of poorly-designed work settings. Ergonomic injuries
cost employers $15-20 billion annually in workers' compensation costs
alone,\28\ yet this number one workplace safety and health problem is
not even mentioned on OSHA's most recent regulatory agenda.\29\
This Administration's approach to reducing workers' risk of
ergonomic injuries relies on the employers taking measures voluntarily
to protect their employees. OSHA's strategy relies primarily on issuing
guidance documents, one industry at a time. During this
Administration's 6-year tenure, OSHA has issued just three of these
documents (i.e., for nursing homes, poultry processing plants and
retail grocery stores). A workplace hazard of this breadth and
magnitude cannot be tackled one guidance document at a time.
On a related matter, at the end of the Clinton administration, OSHA
published a change in recordkeeping requirements that would have
required employers to check a special box on their injury/illness log
if an injury was an MSD. This information would enable OSHA to better
understand the magnitude and distribution of work-related MSDs. OSHA
then delayed the effective date, eventually repealing the provision.
In short, there are many hazards common in the American workplace
for which OSHA either has no standard or one that is based on old and
out-dated science. Further, the results of new scientific studies
appear to have little impact on the OSHA regulatory process.
Procedural Botox: Congress and the White House have constructed a
system where it is extremely difficult and expensive to issue new
standards.
Blame for the failure of OSHA to issue appropriate health standards
can be shared among many parties. The primary cause of this failure
does not rest with the current leadership of the agency, although they
have demonstrated no commitment to issuing badly needed standards to
protect workers from deadly hazards. The primary blame rests in a
system that makes OSHA standard setting inordinately difficult and
resource-intensive. There are numerous barriers to standard setting,
including congressionally imposed special reviews by ``small'' business
employers, OMB imposed regulatory reviews, and increasing demands for
detailed economic analyses. My colleague Frank Mirer, a Professor at
the Hunter College School of Health Sciences, has called this
``procedural Botox.'' I have appended to my testimony a table entitled
``Limitations on OSHA Standard Setting Beyond OSHA Law,'' prepared by
Professor Mirer for his testimony earlier this week at a hearing held
by the House Education and Labor Committee's Subcommittee on Workforce
Protections. This table lists the numerous impediments to OSHA standard
setting.
The well-meaning legislators who wrote the idealistic law that
created OSHA envisioned an agency that would use the best available
science to set standards that would protect American workers. As
scientists learned more about toxic chemicals and other hazards, NIOSH
would perform the relevant research and OSHA would issue the
appropriate standard. That was the vision, but the past few decades
have served as a sobering lesson about how good intentions can go
astray. When Congress enacted the OSHA law in 1970, it believed the new
agency would adopt private industry consensus standards as a stop gap
measure only, then issue new standards based on current research. But
in the late 1980s, when the agency tried to update several hundred
workplace chemical exposure limits en masse, it primarily used newer
industry voluntary standards which were not necessarily as protective
as a strong public health agency might require. Even so, dozens of
industry groups took OSHA to Federal court demanding that OSHA address
each change in a separate rulemaking. The court agreed, ruling in 1992
that health standards had to be issued one chemical at a time; OSHA
announced that the outdated standards would remain unchanged.
Chemical by chemical standard setting would be a painfully time-
and resource-intensive process for any agency, much less this
beleaguered one. OSHA doesn't have the staff to work on more than one
or two standards at a time, and, with no judicial or congressional
oversight to speed the process, each standard takes years to complete.
Unless things change radically, only a handful of the thousands of
chemicals in daily use in American workplaces will ever be the subject
of an OSHA standard.
I strongly believe that to better protect American workers from
workplace hazards, OSHA needs to move away from hazard-specific
standard setting. There are some steps toward this goal that OSHA could
implement immediately. Others will require legislation.
OSHA has abandoned the general duty clause. It is time for the
agency to start using it again.
When Congress passed the OSH Act, the bill's authors recognized
that the agency could not have a standard for every conceivable
workplace hazard. OSHA doesn't need a new standard if a hazard is
serious and there are recognized measures to mitigate the hazard.
Congress gave OSHA the ``general duty clause,'' but the agency now is
hesitant to use it, even for the most obvious and egregious hazards. In
September 2004, for instance, a zoo employee was severely mauled by a
black bear who escaped after its den was left unlocked. OSHA officials
concluded that no citation could be issued, since OSHA has never issued
a regulation saying that bears should be prevented from escaping their
dens.\30\ Does OSHA need a standard saying zoo cages must be locked?
No, it needs to use the general duty clause when its inspectors
document hazards.
OSHA's first priority should be to issue a Comprehensive Workplace
Safety and Health Program Standard.
In all of its voluntary programs, like the Voluntary Protection
Program (VPP) and its ``alliances,'' OSHA emphasizes the importance of
employers providing a safe workplace, not merely meeting the specific
requirements on all of OSHA's rules. This is as it should be, and, more
than anything else, this is the message that should go to all
employers. The best way to do this would be to issue a Comprehensive
Workplace Safety and Health Program Standard, in which every employer
is required to develop and follow a hazard reduction plan, involving
hazard characterization and abatement.
I had first hand experience with this sort of requirement. In DOE's
nuclear safety enforcement system (under the Price-Anderson Act), the
operator of every nuclear weapons facility must develop its own
rigorous safety plan. When I sent inspectors out following an
inadvertent release of radiation, or a report of an accident or near
accident, the first thing the inspector did was to determine if
managers were meeting the facility's own plan. If not, they were in
violation. End of discussion.
We need the equivalent system in which every employer develops its
own public health/hazard abatement plan, signed off by the
corporation's CEO (call it ``Sarbanes-Oxley for Safety and Health'').
Each firm would be required to survey its facilities for the presence
of hazards, both real and potential. Based on this survey, the managers
would develop a plan that addresses all hazards--from digging trenches
safely to limiting chemical spills, from having well-marked unlocked
exits to educating all workers about the risks of their jobs. Does this
sound utopian? Thousands of responsible employers would be in full
compliance immediately, since this is how they already operate.
Under the new system, each employer's plan would be public,
available to workers and community residents to examine and critique.
It would be certified by the government, State or Federal, depending on
the details or perhaps certification could fall to private sector
organizations (like insurance carriers) that would bear some of the
risk if a plan were found to be inadequate.\31\
As always, the devil would be in the details, and I'm under no
illusions about the political difficulty of putting such a sensible,
reasonable plan into place. But just think how a plan would clarify
matters for all concerned. Public health protection would boil down to
the enforcement of two questions:
Does the employer have a plan that is adequate to protect
workers, its neighbors and the environment; and
Is the employer meeting the requirements of its own plan?
Such clarity would benefit regulators and responsible employers and
would give irresponsible companies a clear direction for improvement.
Congress should mandate OSHA issue certain health standards.
The chromium standard shows that external deadlines are effective
in overcoming barriers to regulatory action and agency inertia. Without
reopening the OSH Act, Congress could step in using the appropriations
process, for example, to require OSHA to issue the standards on
beryllium and silica, which OSHA staff have been working on for years,
along with any other standards that are partially completed.
Congress should authorize OSHA to adopt the current Threshold Limit
Values List.
In passing the OSH Act, Congress required the agency to adopt by
rulemaking (within 2 years) certain national consensus standards, such
as the Threshold Limit Values of the ACGIH, unless the Secretary
determines that they would not result in improved safety. OSHA has not
kept up with recommendations of voluntary organizations. It is time for
Congress to require OSHA to again adopt the recommendations of
voluntary organizations like ACGIH, with the same conditions set forth
in the original OSH Act.\32\
In conclusion, my answer to the question posed in this hearing,
``Is OSHA Working for Working People?'' is no. OSHA has the potential
to contribute to a real reduction in workplace injuries and illnesses,
preventing countless injuries and saving hundreds if not thousands of
lives each year. Sadly, it is not fulfilling this promise. I hope the
members of this committee will assist in moving OSHA in the right
direction, toward being an agency fully committed to protecting the
health and safety of America's workers.
Limitations on OSHA Standard Setting Beyond OSHA Law
------------------------------------------------------------------------
------------------------------------------------------------------------
1970............................ OSHA law passes...
1974............................ EO 11821 (replaced Inflation Impact
by EO 12044). Statements.
1978............................ EO 12044 (replaced Regulatory
by EO 12291). analysis
required.
1980............................ Regulatory Regulatory
Flexibility Act. Flexibility
Analysis.
1980............................ Paperwork OMB approval of
Reduction Act. information
collection
requirements in
standards, 3-year
renewal of
provisions.
1980............................ Supreme Court Determine
Benzene Decision. significant risk.
1980............................ DC Court of Industry-by-
Appeals Lead industry
Decision. feasibility
determination.
1981............................ EO 12291 (modified Expanded RIA
by EO 12866). requirements.
1985............................ EO 12498 (modified Regulatory Agenda
by EO 12866). approval by OMB.
1988............................ Federal Advisory Advisory
Committee Act. committees
limited in
number, approved
by GSA.
1992............................ 11th Circuit PEL Must give full
Update Decision. rationale for
exposure limit,
demonstrate
actual exposure,
even if no party
objects.
1993............................ EO 12866 (modified Modest changes in
by EO 13252). previous EO's.
1996............................ Small Business SBA panels review
Regulatory and comment on
Enforcement pre-proposal
Fairness Act. standards.
1996............................ Congressional Expedited process
Review Act. for congressional
disapproval of
standards.
2001............................ Information Process to appeal
Quality Act. information
documents from
agencies.
2002............................ OMB Information Amplifies process
Quality Act for complaints
Bulletin. about information
used in
regulation.
2002............................ EO 13252.......... Reorganize
authority of EO
12866.
2005............................ OMB Peer Review Detailed rules for
Bulletin. external review
of agency
decisions.
2007............................ EO 13422.......... Extends OMB
authority to
guidance
documents, adds
``market
failure'' to
preconditions and
adds to political
control of
rulemaking
decisions.
------------------------------------------------------------------------
Source: Mirer FE. ``The Breakdown of OSHA Standard Setting.,'' Testimony
to Subcommittee on Workforce Protections, Committee on Education and
Labor, U.S. House of Representatives, April 24, 2007.
references
\1\ NAICS code 336212; Incidence rate in 2005 was 16.6 compared to 4.4
for all private industry. Data available at: http://www.bls.gov/
iif/oshsum.htm.
\2\ NAICS code 336214; Incidence rate in 2005 was 13.3 compared to 4.4
for all private industry. Data available at: http://www.bls.gov/
iif/oshsum.htm.
\3\ Bureau of Labor Statistics, Table SNR06, Highest incidence rates of
total nonfatal occupational injury cases, private industry, 2005.
Available at: http://www.bls.gov/iif/oshsum.htm.
\4\ Bureau of Labor Statistics, Table SNR06, Highest incidence rates of
total nonfatal occupational injury cases, private industry, 2005.
Available at: http://www.bls.gov/iif/oshsum.htm.
\5\ Rosenman KD, et al. How much work-related injury and illness is
missed by the current national surveillance system. J Occup Environ
Med, 2006;48(4): 357-365.
\6\ Leigh JP, Marcin JP, Miller TR An estimate of the U.S. Government's
undercount of nonfatal occupational injuries. J Occup Environ Med.
2006;46(1):10-18.
\7\ Testimony of Secretary of Labor Robert Reich before the U.S. House
of Representatives, Committee on Education and Labor, April 28,
1993, Report No. 103-35.
\8\ http://www.bls.gov/iif/oshwc/cfoi/cfch0004.pdf.
\9\ BLS reported there were 5,702 workplace fatalities in 2005.
(Available at: http://www.bls.gov/news.release/pdf/cfoi.pdf) 5,702
fatalities divided by 365 days per year is 15.6; an average of 16
fatalities per year.
\10\ Friedman LS, Forst LS. The Impact of OSHA Recordkeeping Regulation
Changes on Occupational Injury And Illness Trends In The U.S.: A
Time-Series Analysis. Occup Environ Med. 2007 Feb 15; [Epub ahead
of print].
\11\ Friedman LS, Forst LS. Occupational injury surveillance of
traumatic injuries in Illinois, using the Illinois Trauma Registry:
1995-2003. J Occup Environ Med 2007; 49(4): 401-10.
\12\ National Institute for Occupational Safety and Health, Work-
Related Lung Disease Surveillance Report, 2002, Available at:
http://www.cdc.gov/niosh/docs/2003-111/pdfs/2003-111e.pdf.
\13\ Materials on the history of the beryllium standard are included in
my article ``Doubt is their Product, published in Scientific
American in June, 2005, and available at: http://
defendingscience.org/upload/Doubt-is-their-Product.pdf.
\14\ U.S. Department of Energy. Chronic Beryllium Disease Prevention
Program; Final Rule Federal Register 1999;64(235):68854. Available
at: http://www.eh.doe.gov/be/docs/berule.pdf.
\15\ Letter from OSHA Assistant Secretary Charles Jeffress to Peter
Brush, Acting Assistant Secretary, DOE. August 27, 1998.
\16\ Borak, J. The Beryllium Occupational Exposure Limit: Historical
Perspectives and Current Inadequacy. J Occup Environ Med 2006; 48:
109-116.
\17\ Department of Labor Semiannual Agenda of Regulations, 65 Federal
Register 74120, November 30, 2000.
\18\ Department of Labor Semiannual Agenda of Regulations. 66 Federal
Register 61873-61874, December 3, 2001.
\19\ SKAPP's Website includes a history of the failure of OSHA to
regulate hexavalent chromium as a carcinogen, and the efforts by
the chromium industry to manufacture uncertainty about the
material's carcinogenicity. See: http://defendingscience.org/
case_studies/Chromium-Case-Study.cfm.
\20\ Occupational Safety and Health Administration: Occupational
Exposure to Hexavalent Chromium, Final Rule, 71 Federal Register
10099-10385, February 28, 2006.
\21\ More details on the failure of OSHA to protect workers from the
hazards of diacetyl are at: http://defendingscience.org/
case_studies/A-Case-of-Regulatory-Failure-Popcorn-Workers-Lung.cfm.
\22\ Occupational Safety and Health Administration. National News
Release: ``OSHA announces focus on health hazards of microwave
popcorn butter flavorings containing diacetyl,'' April 24, 2007,
Available at: http://www.dol.gov/opa/media/press/osha/
osha20070610.htm.
\23\ Section 5(a)(1) of the Occupational Safety and Health Act of 1970.
\24\ Letter from Olmedo M (Area Director; OSHA Kansas City Area Office)
to Powell AR (Humphrey, Farrington, McClain & Edgar, P.C.,).
February 28, 2002.
Available at: http://defendingscience.org/case_studies/upload/
OSHA_2002_
Olmedo_Letter_about_Glister_Mary_Lee.pdf.
\25\ Occupational Safety and Health Administration. Proposed rule on
ergonomics. 64 Federal Register 65768, November 11, 1999.
\26\ National Academy of Sciences. Musculoskeletal Disorders and the
Workplace: Low Back and Upper Extremities, Washington, DC: National
Academies Press, 2001.
\27\ The Congressional Review Act is one provision of the Small
Business Regulatory Enforcement Fairness Act of 1996, and a core
provision of the GOP's 1994 Contract with America.
\28\ OSHA, Proposed rule on ergonomics, 64 Federal Register 65768, 11/
23/1999.
\29\ Occupational Safety and Health Administration, Unified Regulatory
Agenda, 71 Federal Register 73540, December 11, 2006.
\30\ Worker critical after bear attacks. Chicago Sun Times. September
13, 2004. Available at: http://www.findarticles.com/p/articles/
mi_qn4155/is_20040913/ai_n12558833, discussed in Barab J. Wild
animals? Lock the cage--even if there's no OSHA standard. Confined
Space Blog. January 18, 2006; http://spewingforth.blogspot.com/
2005/01/wild-animals-lock-cage-even-if-theres.html.
\31\ Silverstein M. Getting Home Safety and Sound? OSHA at Thirty-Five.
Available at: http://www.defendingscience.org/newsroom/upload/
Silverstein_Complete_Draft.pdf.
\32\ Section 6(a) of the Occupational Safety and Health Act of 1970.
Senator Murray. Dr. Michaels, thank you very much.
Ms. Seminario.
STATEMENT OF PEG SEMINARIO, DIRECTOR, OCCUPATIONAL SAFETY AND
HEALTH, AFL-CIO, WASHINGTON, DC.
Ms. Seminario. Thank you, Senator Murray and Senator
Isakson, for inviting me to testify today. It is particularly
appropriate and timely that you're holding this hearing this
week, several days before April 28, which is both the
anniversary of OSHA and Workers Memorial Day, a day when we
remember workers who have been killed or injured on the job.
The OSH Act of 1970 indeed was landmark legislation. Its
goal, assuring as far as possible, every working man and woman
in the Nation, safe and healthful working conditions is one
that I think we all support. Since that time, significant
progress has been made but we are a very, very long way from
fulfilling the promise of safe jobs for American workers.
As we have heard, the total of workplace gas injuries and
disease in this country is still enormous. In 2005, there were
5,734 workers killed by job injuries, an estimated 50,000
deaths from occupational disease. Ten thousand of those were
from asbestos-related diseases. On an average day, 16 workers
are killed in the United States every day.
The number and rate of job fatalities has fallen
dramatically since the passage of OSHA. But in recent years,
the progress has slowed. In the last few years, the job
fatality rate has essentially remained unchanged. And for some
groups of workers, the situation is actually getting worse. We
have seen very, very significant increases in fatalities among
Hispanic workers and foreign-born workers. Since 1992,
fatalities among Hispanic workers have increased by 73 percent.
And the fatality rate for Hispanic workers is 25 percent higher
than it is for other workers.
Mr. Michaels has talked quite a bit and focused on the
issue of under reporting of injuries. Again, I think this is a
very, very important issue because we really do need to
understand the true toll of occupational injuries and illnesses
in this country. And if the recent studies are correct, that
only one in three job injuries is being reported, then the real
toll of workplace injuries and illness in this country is not 4
million but it's 13 to 17 million workers injured on the job
and that isn't including the occupational disease, which
actually claim lives and affects so many others.
The cost, as Senator Murray has pointed out, is enormous
but those costs are only based on the BLS numbers. So again,
the real costs are probably three to four times as high and
those are only the costs to employers. They don't have the cost
at all that are borne by workers in this country. It's only the
cost to employers.
But unfortunately, the Bush administration has done little
or nothing to address those major hazards that are the major
source of job fatalities, injury and disease in this country.
The biggest source of workplace injury is still ergonomic
hazards. Thirty percent of job injuries are caused by this
hazard. The ergonomic standard was repealed in 2001 but since
that time, the Administration has failed to take any meaningful
action. They said they were going to have a comprehensive
ergonomics plan but in the last number of years, they have
issued no new guidelines.
They take no actions under the General Duty Clause. They've
done nothing. Thirty percent of workplace injuries and no
action taken. They've set only one significant safety and
health standard. They've actually cut the enforcement staff and
the staff devoted to setting standards in this country.
I think it is important to realize that OSHA needs to be a
leader in safety and health and they have, indeed, abandoned
their leadership role in safety and health in addressing major
workplace hazards. And instead of addressing the major hazards
through standard setting, through enforcement, that actually
move things on a national basis, they've decided to work
cooperatively with individual employers, trying to get them to
address problems on a voluntary basis. With the level of
disease, injury and death we have in this country, we need
strong leadership and action. We don't need individual
cooperative programs with employers.
So we think that the actions that focus on voluntary
programs, cooperative efforts with individual employers--it's
the wrong emphasis. There is nothing wrong with those programs
but they shouldn't be the centerpiece. The centerpiece, the
foundation still needs to be setting the protections, the legal
protections that protect workers in this country and taking
action to enforce them.
OSHA enforcement, unfortunately, is also very weak. OSHA
has 800 inspectors federally. They can inspect workplaces once
every 133 years. I think it is important to note that since
OSHA was enacted, the workplaces and workers covered under OSHA
have doubled. OSHA today has fewer people on staff than they
did in 1975. Double the workers, double the workplaces, fewer
people working to protect the safety and health of American
workers.
So we believe that the Congress really needs to take action
and provide the kind of leadership that has been lacking to
strengthen and improve workplace safety and health. We urge the
committee to focus attention on major safety and health issues,
including the problems faced by Latino and immigrant workers,
protecting workers from potential pandemic flu, protecting
workers from ergonomic hazards and to a real, in-depth
investigation into the true toll of occupational injuries and
illnesses in this country.
And we urge you to take action to fill the key gaps in
protection that only changes in the OSHA law can bring and that
includes extending coverage to all workers.
As we approach Workers Memorial Day and the 36th
anniversary of OSHA on this April 28th, we ask the Congress and
the Nation to recommit to the promise of the Safe Job for every
American worker that was made more than three decades ago and
to do everything--everything possible to ensure that this
promise is finally fulfilled. Thank you.
[The prepared statement of Ms. Seminario follows:]
Prepared Statement of Peg Seminario
Senator Murray, Ranking Member Isakson and other members of the
committee, my name is Peg Seminario. I am Director of Safety and Health
for the AFL-CIO, where I have worked for the past 30 years on a wide
range of regulatory and legislative initiatives on worker safety and
health. I appreciate the opportunity to testify at today's hearing as
you examine the state of safety and health protections for America's
workers. It is particularly appropriate and timely that you are holding
this hearing this week, several days before April 28th, the anniversary
of when the Occupational Safety and Health Act went into effect. April
28th is also Workers Memorial Day, the day that the unions in the
United States and around the globe remember those who have died or been
injured or diseased due to workplace hazards, and recommit to doing all
we can to protect workers on the job.
The Occupational Safety and Health Act of 1970 was landmark
legislation enacted by the Congress with the goal of assuring ``so far
as possible every working man and woman in the Nation safe and
healthful working conditions.'' Since that time, significant progress
has been made in protecting workers. Job fatalities and injuries have
declined and exposures to many toxic substances have been substantially
reduced. But in recent years progress has slowed, and now may be
reversing.
Since 1970, the economy has changed greatly, with new hazards
presented and new groups of workers at risk. The number of workers and
workplaces covered by the OSH Act today is double what it was in 1970,
but there are fewer resources available to OSHA to meet its
responsibilities.
Health and safety standards are out of date or nonexistent for many
workplace hazards. Millions of workers still are not covered by the OSH
Act, and lack even the most basic safety and health protections.
Under the Bush administration, voluntary efforts and partnerships
with employers have been favored over mandatory standards and industry-
wide enforcement initiatives. With this approach, OSHA has abandoned
its leadership role in safety and health, choosing to work with
individual employers, rather than taking bold action to bring about
broad and meaningful change in working conditions on an industrywide
and national level.
As a result, as a nation we are falling further and further behind
in protecting workers from serious hazards that cause death, injury and
disease.
In 2007, the promise of a safe job for every American worker is far
from being fulfilled.
the toll of workplace deaths, injuries and disease is still enormous
Since the Occupational Safety and Health Act was enacted in 1970,
job fatalities, injuries and illnesses have been reduced significantly
as have exposures to toxic substances such as asbestos, lead, benzene
and cotton dust. But, as vividly demonstrated by the Sago mine disaster
and other worker safety disasters that recently occurred, too many
workers remain at risk, and face death, injury or disease as a result
of their jobs.
In 2005, on an average day, 16 workers were fatally injured and
more than 12,000 workers were injured or made ill each day, according
to BLS reports. These statistics do not include deaths from
occupational diseases, which claim the lives of tens of thousands
additional workers each year. But since most of these workers are
killed or injured one at a time, these events draw little public
attention. These workers include:
Brandon Garrett, a 23-year-old oil rig worker who was killed in
Floyd County Texas on Easter Sunday when he was caught in a winch in
the oil field.
Linda Shearer, age 23, from Clay City, Kentucky who died on April
9th after being struck in the neck by a piece of steel while operating
a 1,000 ton machine press manufacturing bumpers at a steel parts plant.
Damon Huhtala, age 26, killed in Harrison, Idaho on April 19th
while framing a house when a nail from a nail gun pierced his skull.
Cornelia Salvador Moreno, a 22-year-old, who drowned in a tunnel
collapse on his first day on the job on April 3rd, in Harris County
Texas, leaves behind a wife and a 2-week-old daughter.
The devastation to the family members, friends and co-workers
caused by job deaths and injuries is enormous. And like the tragedy at
the Sago mine, the tragedy is compounded because most of these deaths
and injuries could have been prevented.
In 2005, there were 5,734 workers killed as a result of traumatic
injuries and an estimated 50,000 deaths as a result of occupational
diseases, 10,000 of which were the result of asbestos exposures. The
number of job fatalities has fallen dramatically since the passage of
the OSH Act in 1970, when the National Safety Council reported 13,800
work-related deaths. Similarly fatality rates have also declined from
18 deaths per 100,000 workers in 1970 to 4.0 deaths per 100,000 workers
reported in 2005. In recent years, progress in reducing job-related
deaths has slowed and the job fatality rate has largely been unchanged.
But for some groups of workers the situation is getting worse.
Since 1992, when BLS began its Census of Fatal Occupation Injuries
(CFOI), job fatalities among Hispanic or Latino workers have increased
by 73 percent, from 533 to 923 deaths. Hispanic workers experience a
disproportionate number of work-
related fatalities, with a job fatality rate of 4.9/100,000 workers in
2005 compared to the overall rate of 4.0 for all workers. Fatalities
among foreign-born workers have also been on the rise, increasing by 63
percent, from 635 fatalities in 1992 to 1,035 fatalities in 2005.
Latino and immigrant workers have a high rate of fatalities largely
because they work disproportionately in dangerous jobs and dangerous
industries. Many of these workers are unorganized, and do not know or
are unable to exercise their legal rights. Many do not receive training
in safety and health and are not provided adequate protection by their
employers. Moreover, those who are undocumented and lack immigration
status are particularly vulnerable and fearful to speak out.
job injuries and illnesses
For 2005, the Bureau of Labor Statistics reported 4.2 million
injuries and illnesses among private sector workers, a slight decrease
from 4.3 million in 2004. An additional 578,200 injuries and illnesses
occurred among State and local government employees in the 29 States
and territories in which these data were collected. The national injury
and illness rate (private-sector only) in 2005 was 4.6 per 100 workers.
Since the OSH Act was enacted, the reported rates of job injuries and
illnesses have declined from a rate of 11.0/100 workers in 1973, with
biggest declines in manufacturing and construction sectors that have
received the most intensive oversight by OSHA. In 1973 the reported
injury and illness rate in manufacturing was 15.3/100, compared to 6.3/
100 in 2005; and the rate in construction was 19.8/100 in 1973 compared
to a rate of 6.3/100 in 2005.
In 2005, hospitals and nursing homes reported much higher injury
and illness rates than manufacturing and construction, with rates of
8.1/100 and 9.1/100, respectively. And as the economy has shifted
toward a service economy, more and more of the job injury burden is
being born by service sector workers. In 2005, 8 of the 14 industries
that reported more than 100,000 workplace injuries and illnesses were
in the service sector. Despite this shift in the economy OSHA remains
largely focused on the construction and manufacturing sectors, with
major hazards in the service sector industries such as ergonomics,
airborne infectious diseases and violence unregulated and only limited
numbers of inspections conducted in these industries.
Musculoskeletal disorders (MSDs), such as back injuries, carpal
tunnel syndrome, and other repetitive strain injuries, that result from
ergonomic hazards, continue to be the largest source of job injuries,
accounting for nearly one-third of all injuries and illnesses. For
2005, BLS reported 375,540 serious musculoskeletal disorder (MSD) cases
that resulted in days away from work.
OSHA under the Bush administration has totally failed to address
this leading workplace injury problem. In 2002, after the ergonomics
standard was repealed, the Administration announced a ``comprehensive
plan'' on ergonomics that included developing guidelines for hazardous
industries, enforcement under the general duty clause, outreach and
research. But since that time little has been done. Only three industry
guidelines have been issued--on nursing homes, poultry, and retail
groceries--the last one in 2004. Only 17 general duty citations have
been issued, the last one in 2005. The Bush administration has stated
that 408 ergonomic hazard warning letters have been issued to employers
since 2002. But to date no followup inspections have been done to
determine if hazards have been abated.
reported cases greatly understate the job injury and illness problem
While the BLS statistics show that occupational injury and illness
are declining, numerous studies have shown that the government survey
of occupational injury and illness is failing to capture a large
proportion of the job injuries and illnesses that are occurring. The
BLS Annual Survey of Injuries and Illnesses is based upon data that is
recorded by employers on the OSHA Injury and Illness Log. If the
injuries and illnesses are not recorded on the OSHA Log, they are not
captured in the government injury and illness statistics. This is in
contrast to the BLS Census of Fatal Occupational Injuries that collects
data from a number of sources in addition to employers' OSHA Logs.
A recent study published in the April 2006 Journal of Occupational
and Environmental Medicine that examined injury and illness reporting
in Michigan found that the BLS Annual Survey missed more than \2/3\ of
occupational injuries and illnesses.\1\ The study conducted a detailed
comparison of injuries and illnesses reported in five different
databases--the BLS Annual Survey, the OSHA Annual Survey, the Michigan
Bureau of Workers' Compensation, the Michigan Occupational Disease
reports and the OSHA Integrated Management Information System. It found
that during the years 1999, 2000 and 2001, the BLS Annual Survey, which
is based upon employers' OSHA logs, captured approximately 33 percent
of injuries and 31 percent of illnesses reported in the various data
bases in the State of Michigan.
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\1\ Rosenman, K.D., Kalush, A., Reilly, M.J., Gardiner, J.C.,
Reeves, M., and Luo, Z., ``How Much Work-Related Injury and Illness is
Missed by the Current National Surveilance System?'', Journal of
Occupational and Environmental Medicine, Vol. 48, No. 4, April 2006.
---------------------------------------------------------------------------
It is important to note that this undercount does not reflect those
injuries and illnesses that were not reported or included in the
databases examined. For example, injuries among self-employed
individuals who are not covered by OSHA or workers compensation are not
included. Also, injuries not reported by workers are also not accounted
for.
The results of the Michigan study as well as other research
indicate that the true toll of workplace injuries in the United States
is likely to be 3 to 4 times that reported annually by the BLS. Thus
the true toll of injuries is in the range of 13 to 17 million annually.
The causes of underreporting are many and varied. Employers may not
report injuries to keep workers' compensation costs low, to remain
eligible for government contracts that require a good injury record, or
to avoid being placed on OSHA's inspection targeting list, which is
compiled based upon employers' injury rates. Increasingly, employers
are implementing programs that provide incentives to workers not to
report injuries. At the same time, practices and policies are being
implemented that discipline workers (including termination) if they
report injuries.
The underreporting of workplace injuries and illnesses is a
significant problem that must be addressed. Injury and illnesses
statistics are used by OSHA as the primary indicator of an employer's
or industry's safety and health performance. Injury and illness rates
determine what industries and employers are inspected, and what
employers are accepted into agency voluntary compliance programs. These
rates are also used by OSHA to evaluate the effectiveness of its
programs and initiatives.
The Occupational Safety and Health Act directs the Secretary of
Labor to ``compile accurate statistics on work injuries and
illnesses.'' Despite this mandate and despite the mounting evidence
that injury and illness data is woefully incomplete and unreliable,
OSHA has largely ignored the issue of underreporting and undercounting
of workplace injuries and illnesses.
Reliable data is needed to have an accurate picture of the true
nature and toll of workplace injuries and illnesses, to develop
policies and initiatives to address identified problems and to assess
the effectiveness of efforts to reduce this toll and address safety and
health hazards. We ask the Congress to examine in detail the extent and
causes of underreporting of injuries and illnesses and determine the
actions that can be taken to improve reporting and the accuracy of
data.
the cost of occupational injuries and deaths is high
The cost of occupational injuries and death in the United States is
staggering. In March 2007, Liberty Mutual Insurance, the Nation's
largest workers' compensation insurance company, released its 2006
Workplace Safety Index on the leading causes and costs of compensable
work injuries and illnesses based on 2004 data.\2\ The report found
that workplace injuries cost U.S. employers $48.6 billion--nearly $1
billion per week--in direct costs alone (medical and lost wage
payments). When indirect costs (e.g., overtime, training and lost
productivity) are taken into account, the costs rise to between $145.8
billion and $291.6 billion annually. But these costs are only for
disabling injuries, and are based on BLS data; so do not reflect the
cost of the significant number of injuries and illnesses that are not
captured in the BLS system.
---------------------------------------------------------------------------
\2\ 2006 Liberty Mutual Workplace Safety Index. Report available
at: http://www.wausau.com/omapps/
ContentServer?cid=1078452376750&pagename=wcmInter%2FDocument%2FShowDoc&c
=
Document.
---------------------------------------------------------------------------
Moreover, the Liberty Mutual report also does not capture those
costs of workplace injuries and illnesses that are born by workers,
their families and the government, which are growing as workers'
compensation coverage and benefit levels have been reduced.
A 2004 study conducted by researchers at the Rand Institute for
Civil Justice found that 37 percent of those receiving Social Security
Disability were disabled due to a workplace injury or illness.\3\ The
majority of these disabilities were musculoskeletal disorders (58
percent). Few of these individuals--only 4.7 percent--received workers
compensation. The Rand study estimates that occupational injuries and
illnesses account for $22.1 billion annually in Social Security
Disability payments and $11.0 billion in Medicare expenditures.
---------------------------------------------------------------------------
\3\ Reville, R.T. and Schoeni, R., ``The Fraction of Disability
Caused at Work,'' Social Security Bulletin, Vol. 65 No. 4, 2003/2004.
---------------------------------------------------------------------------
job safety resources are woefully inadequate
Under the Occupational Safety and Health Act, Federal OSHA and the
State OSHA plans have responsibility for overseeing the safety and
health of more than 131 million U.S. workers. But OSHA's resources
available are woefully inadequate to meet this responsibility and to
address the enormous toll of workplace death, injury and disease.
Since the passage of the OSH Act, the number of workplaces and
number of workers under OSHA's jurisdiction has more than doubled,
while at the same time the number of OSHA staff and OSHA inspectors has
been reduced. In 1975, Federal OSHA had a total of 2,405 staff
(inspectors and all other OSHA staff) responsible for the safety and
health of 67.8 million workers at more than 3.9 million establishments.
In 2006, there were 2,208 Federal OSHA staff responsible for the safety
and health of 131.5 million workers at 8.5 million workplaces.
For Fiscal Year 2007, the Federal OSHA budget is $485 million. This
amounts to $3.70 per worker.
Since the Bush administration took office in 2001, OSHA's budget
has been reduced by $17.5 million in real dollar terms, and 197
positions eliminated. One-
hundred-forty of these positions have been in Federal enforcement, and
13 in the standard setting program.
The Bush administration's annual OSHA budget requests have
reflected the Administration's policies toward worker protection. They
have repeatedly favored voluntary compliance over enforcement and
programs directed at employers over those for workers. Fiscal year 2008
is no different. This year's budget request seeks $7 million in
additional funding for employer compliance assistance programs,
including a $4.6 million increase and 13 new FTEs for the Voluntary
Protection Program. At the same time, the funding request for Federal
enforcement maintains the program at current levels. And while
significant increases are sought in outreach programs for employers,
the Bush administration has once again proposed to eliminate all
funding for OSHA's worker training and education program.
The Bush administration proposed funding for employer compliance
assistance programs in fiscal year 2008 is $134.1 million with no
funding proposed for worker training and outreach programs. It is worth
noting that when OSHA initiated its employer compliance assistance and
worker training programs in the 1970's that these programs were funded
at similar levels of approximately $17 million/year.
osha enforcement is infrequent and weak
When it comes to job safety enforcement it is clear that OSHA lacks
sufficient resources and teeth. A combination of too few OSHA
inspectors and low penalties makes the threat of an OSHA inspection
hollow for most employers.
In fiscal year 2006, there were 2,112 Federal and State OSHA
inspectors responsible for enforcing job safety and health protections.
In fiscal year 2006, the 818 Federal OSHA inspectors conducted 38,589
inspections and the 1,294 inspectors in State OSHA agencies combined
conducted 58,367 inspections. There were a total of 96,956 inspections
at the 8.5 million workplaces covered by the OSH Act.
At its current staffing and inspection levels, it would take
Federal OSHA 133 years to inspect each workplace under its jurisdiction
just once. Inspection frequency is better in States with OSHA-approved
plans, yet still far from satisfactory. In these States, it would now
take the State OSHA's a combined 62 years to inspect each worksite
under State jurisdiction once. In contrast, in the Nation's mines,
which are subject to the Mine Safety and Health Act, there are regular
inspections--at least four per year in underground mines and two per
year in surface mines.
The current level of Federal and State OSHA inspectors provides one
inspector for every 63,670 workers. This compares to a benchmark of one
labor inspector for every 10,000 workers recommended by the
International Labor Organization for industrialized countries.\4\ In
the States of Arkansas, Florida, Delaware, Nebraska, Georgia, Illinois,
Louisiana, Mississippi and Texas, the ratio of inspectors to employees
is greater than 1/100,000 workers.
---------------------------------------------------------------------------
\4\ International Labor Office. Strategies and Practice for Labor
Inspection, G.B.297/ESP/3. Geneva, November 2006. The ILO benchmark for
labor inspectors is one inspector per 10,000 workers in industrial
market economies.
---------------------------------------------------------------------------
Federal OSHA's ability to provide protection to workers has greatly
diminished over the years as the number of workplaces and workers has
grown, and agency resources have largely stayed the same and for some
programs even declined. When the AFL-CIO first analyzed this issue in
its first report ``Death on the Job: The Toll of Neglect'' in 1992,
Federal OSHA could inspect workplaces under its jurisdiction once every
84 years, compared to once every 133 years at the present time.
The majority of OSHA inspections have always been conducted in
manufacturing and construction, which have traditionally had high
injury and illness rates. But, the service sector now accounts for 83.4
percent of the Nation's employment, with many of these industries, such
as health care and nursing homes experiencing both high rates and
numbers of injuries and illnesses. But the OSHA program has failed to
keep up with these and other changes in the economy, and focuses little
attention on these growing sectors.
The Occupational Safety and Health Act provides for citations and
penalties for employers who violate the law. The maximum penalty for a
serious violation--one which poses a substantial probability of death
or serious physical harm to workers--is $7,000. For violations that are
``willful,'' the maximum penalty is $70,000, with a minimum of
$5,000.\5\ Few willful violations are issued, only 446 by Federal OSHA
and 153 by the State OSHA plans in fiscal year 2006.
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\5\ Maximum OSHA penalties were last increased by Congress in 1990
under the Omnibus Budget Reconciliation Act (Public Law 101-508, 104
Stat. 1388). Penalties for most Federal agencies are increased
regularly for inflation under the Federal Civil Penalties Inflation
Adjustment Act of 1990, but OSHA and the IRS are specifically exempted
from this statute.
---------------------------------------------------------------------------
Penalty levels assessed for violations are well short of the levels
provided under the act. In fiscal year 2006, serious violations of the
OSH Act carried an average penalty of only $881 ($873 for Federal OSHA
and an average of $890 for State OSHA plans). For willful violations
the average penalty was $32,158 for Federal OSHA and $23,519 for the
State plans.
One of the major deficiencies in the OSH Act are its weak
provisions on criminal penalties for violations of the law that cause
harm to workers. Under the OSHA law, criminal penalties only apply in
those instances where an employer willfully violates an OSHA standard
and the violation causes the death of a worker. Even these violations
are classified as a misdemeanor, with a maximum sentence of 6 months in
jail. There are no criminal penalties for violations that cause serious
injury to workers, or for willful violations that put workers in harms
way. In contrast, most environmental laws include substantial criminal
penalties--jail time and fines--for violations of the law that endanger
the public, even if no specific injuries or deaths occur.
As a result of the high threshold for criminal penalties, combined
with the low sanction, few criminal prosecutions are brought under the
OSH Act. According to OSHA, in fiscal year 2006, the Department of
Labor referred 11 enforcement cases to the Justice Department for
criminal prosecution.\6\
---------------------------------------------------------------------------
\6\ Statement of Edwin G. Foulke, Assistant Secretary, Occupational
Safety and Health Administration, Before the Subcommittee on Labor,
Health and Human Services, Education, and Related Agencies, Committee
on Appropriations, U.S. House of Representatives, March 20, 2007.
---------------------------------------------------------------------------
Since taking office in 2001, the Bush administration has maintained
a level of enforcement similar to that during the second term of the
Clinton administration. But there are differences worth noting. While
the number of inspections has increased somewhat from 36,350 in fiscal
year 2000 to 38,589 in fiscal year 2006, the number of workers covered
by Federal OSHA inspections has declined significantly from more than
2.0 million in fiscal year 2000 to 1.2 million in fiscal year 2006. The
length of time spent on inspections has also declined somewhat from 22
hours/safety inspections in fiscal year 2000 to 18.8 hours in fiscal
year 2006.
The average penalty per violation have also declined somewhat from
$960 for a serious violation in fiscal year 2000 to $873 in fiscal year
2006, and from $36,487 for a willful violation in fiscal year 2000
compared to $32,158 in fiscal year 2006.
The biggest change in OSHA's activities under the Bush
administration has been a much greater emphasis on and expansion of
voluntary programs. Since 2001, the number of Voluntary Protection
Programs has more than doubled from 604 to 1,239 in March 2007. (The
VPP is a program started in 1982 that provides recognition to employers
who have better than average injury rates and establish comprehensive
safety and health programs). The Administration is seeking additional
funds and staff in the fiscal year 2008 budget for the expansion of the
VPP program. This request is being made despite findings and
recommendations from a 2004 GAO study that OSHA's voluntary programs
should not be expanded until necessary data was collected to allow for
a full and meaningful evaluation of these programs.
In addition to an expansion of the VPP program, the Bush
administration has instituted other voluntary initiatives including its
``Alliance'' program. These alliances emphasize outreach, education and
the promotion of safety and health. They have no set criteria, no
specific outcomes and are less structured than OSHA's other voluntary
programs (such as consultation and partnerships). Most of the alliances
are between OSHA and employer groups and have excluded unions from
participation.
osha standard setting has come to a halt
One of OSHA's major responsibilities under the OSH Act is setting
occupational safety and health standards to protect workers from
hazards that pose a significant risk of harm. During its first three
decades, the agency issued groundbreaking standards on hazards such as
asbestos, lead, benzene and chemical process safety. These standards
required major action by employers to reduce exposures to hazards and
to provide training, medical surveillance and protective equipment to
workers. Numerous studies have documented that these rules have been
very effective, significantly reducing injuries, fatalities and
exposures, often at costs much lower than anticipated.
But over the years, the standard setting process has become more
difficult and lengthy as court decisions, executive orders and
legislation have imposed layers of new regulatory analysis and review
requirements. Industry opposition has also increased adding to the
difficulty and delays. While in OSHA's early years, major standards
could be completed in a few years, recent standards have taken 6 to 10
years.
But under the Bush administration, the situation has gotten much,
much worse. OSHA standard setting has essentially ground to a halt as
the Administration has failed to move on important hazards, and instead
tried to weaken and roll back protections. The first legislative act of
President Bush in 2001 was to sign legislation repealing the OSHA
ergonomics standard, which was issued in 2000 to address the major
source of workplace injuries. Soon after, the Administration moved to
withdraw dozens of safety and health rules from the regulatory agenda,
ceasing all action on the development of these important safety and
health measures. Rules withdrawn at OSHA included measures on indoor
air quality, safety and health programs, glycol ethers and lock-out of
hazardous equipment in construction. During its first 5 years, the Bush
administration failed to issue any significant safety and health rules,
compiling the worst record on safety and health standards in OSHA
history.
In February 2006, the Bush administration issued its first major
final OSHA rule--a standard on hexavalent chromium, issued as a result
of a lawsuit brought against the agency by Public Citizen and PACE
International Union (now part of the United Steelworkers).
In February 2007, a final standard updating OSHA's electrical
safety requirement was issued. This rule largely codified changes
previously adopted in the National Electrical Code and NFPA standards
that were already required by many States and localities. The rule
addresses an important hazard, but with an economic impact of $9.6
million annually is well under the $100 million OMB threshold for an
economically significant rule.
For other rules on the OSHA regulatory agenda, there has been
little or no action.
A standard on Employer Payment for Personal Protective Equipment,
which has been through the rulemaking process, has languished for 8
years. This rule would require employers to pay for the safety
equipment that must be provided by employers under OSHA standards. This
rule is particularly important for low-wage workers and immigrant
workers who work in dangerous industries like meat-packing, poultry and
construction.
In April 2003 the AFL-CIO and eight other union organizations and
the Congressional Hispanic Caucus petitioned for OSHA to issue the
final payment for PPE standard. Despite repeated promises that final
action was forthcoming, from 2004 to 2006 OSHA missed every announced
target date for completion of the rule. On January 3, 2007, the AFL-CIO
and the United Food and Commercial Workers (UFCW) filed suit in the
U.S. Court of Appeals for the District of Columbia asking the court to
intervene and order OSHA to act. In response to this lawsuit, OSHA has
told the court that it will issue the PPE rule by the end of November
2007, barring unforeseen circumstances. However, the Administration has
refused to commit to issue a final rule that is at least as protective
as the proposal issued in 1999.
There are five economically significant regulations still on the
OSHA regulatory agenda: Crystalline Silica (in the pre-rule stage);
Confined Spaces in Construction (proposed rule stage); Beryllium (pre-
rule stage); Hearing Conservation for Construction Workers (long-term
action with the next action undetermined) and Electric Power
Transmission and Distribution (final rule stage, public hearings held
in March 2006). But, there is no commitment from OSHA as to when and
whether they will finalize these rules or will propose rules that are
in the pre-rule or long-term action stages.
There also has been no agency regulatory action to address newly
identified hazards. In February 2007, OSHA denied a union petition for
an emergency temporary standard to protect health care workers and
emergency responders in the event of a flu pandemic on grounds that a
pandemic had not yet occurred. Instead of issuing an emergency
standard, the Department of Labor instead has decided to rely on
guidelines and recommendations. In February 2007, OSHA issued
guidelines on ``Preparing Workplaces for a Pandemic'' and has stated
that it intends to issue guidelines on protecting health care workers
and responders in the near future. However, such guidelines are only
advisory and cannot take the place of an enforceable infection control
standard, ensuring that comprehensive infection control plans and
measures are developed and put in place before a pandemic occurs. The
result is that millions of health care workers and responders remain in
serious danger and will be unprotected if a pandemic occurs.
The agency has also failed to respond to a petition for an
emergency standard on the chemical diacetyl, a butter flavoring agent
used in microwave popcorn and other foods, that has caused a rare and
fatal lung disease (bronchiolitis obliterans) in exposed workers. In
contrast to Federal OSHA, the State of California, which has received a
similar petition, has moved quickly to draft an emergency diacetyl rule
and has established a special emphasis surveillance and enforcement
program in the flavoring industry.
The result of OSHA's inaction and the slow pace of standard setting
means that for many significant workplace hazards standards are out of
date or completely lacking. This is particularly true for toxic
chemicals. Since the OSH Act was enacted in 1970, OSHA has issued
comprehensive health standards for only 27 substances. Most of these
standards were set in the first two decades of the act.
For approximately 400 additional chemicals, there are permissible
exposure limits (PELs) in place that govern exposure to these
substances. However, there are no requirements for monitoring, medical
exams or other measures that are included in comprehensive OSHA
standards. These PELs were adopted in 1971 under a provision of the act
that allowed OSHA to adopt existing government and industry consensus
standards so a body of regulation could be in place while new standards
were being developed. These PELs codified the ACGIH Threshold Limit
Values from 1968. Most of these limits were set by ACGIH in the 1940's
and 1950's based upon the scientific evidence then available. Many
chemicals now recognized as hazardous were not covered by the 1968
limits. In 1989 OSHA attempted to update these limits, but the revised
rule was overturned by the courts because the agency failed to make the
risk and feasibility determinations for each chemical as required by
the act. The result is that many serious chemical hazards are not
regulated at all by Federal OSHA or subject to weak and out-of-date
requirements. Some States, including California and Washington, have
done a better job updating exposure limits, and as a result workers in
those States have much better protection against exposure to toxic
substances.
In recent years the American Industrial Hygiene Association (AIHA),
major industry groups and labor attempted to reach agreement on a new
approach to update permissible exposure limits through a shorter
process that would allow quick adoption of new limits that were agreed
upon by consensus. Unfortunately those efforts stalled when small
business groups objected to an expedited process that would apply to a
large number of chemicals and the Bush administration refused to take a
leadership role in developing and advancing an improved process for
setting updated exposure limits.
Last year, the State of California, moved to establish a new
process for updating chemical exposure limits, that utilizes a two-part
advisory committee process to recommend revised or new permissible
exposure limits. This process is similar to the draft proposal
developed by the AIHA, groups representing larger employers and labor
to establish exposure limits through an expedited review process.
California and many other States have also moved beyond the hazard-
by-hazard approach to addressing workplace hazards. They have
established standards on workplace safety and health programs that
require employers to have a program to identify and correct workplace
safety hazards and involve workers in the process. This systematic
approach to addressing worker safety problems at the workplace has been
adopted as a legal requirement in the European Union and many other
countries as well. The implementation of safety and health programs are
also the foundation of OSHA's voluntary programs. The development of a
safety and health program rule was high on OSHA's regulatory agenda for
many years, and a draft standard was developed in 1998. But in 2002,
the Bush administration removed the Safety and Health Program rule from
the regulatory agenda, stopping agency efforts to put this systematic
framework in place.
The AFL-CIO urges this committee and the Congress to look closely
at OSHA standard setting, particularly permissible exposure limits and
safety and health programs, and to advance legislative proposals that
will update PELs and put basic requirements for safety and health
programs in place.
millions of workers still lack osha coverage
More than three decades after the passage of the Occupational
Safety and Health Act, millions of workers still lack basic legal
protections. The current OSHA law still does not cover 8.6 million
State and local government employees. The OSH Act only covers State and
local public employees where a State has adopted a State OSHA plan. In
21 States and the District of Columbia public employees are not
covered, despite the fact that they encounter the same hazards as
private-sector workers.
Federal Government workers are provided protection under Executive
Order 12196 that was adopted in 1980. The E.O. applies OSHA standards
to Federal Government executive branch workers and provides for OSHA
inspections. But OSHA has no authority to levy fines or to take action
to enforce the abatement of hazards and violations that are found.
Similarly, millions who work in the transportation and agriculture
industries and at Department of Energy contract facilities lack full
protection under the OSH Act. These workers theoretically are covered
by other laws, which in practice have failed to provide equivalent
protection. The void in protection is particularly serious for flight
attendants. The Federal Aviation Administration (FAA) has claimed legal
jurisdiction for airline cabin crews but has refused to issue necessary
workplace safety rules. Efforts by the FAA and OSHA initiated in 2000
to resolve this situation were jettisoned by the Bush administration,
which instead has announced a program limited to voluntary activities
that will be overseen by the FAA.
congressional leadership and action is needed to strengthen and improve
worker safety and health protections
The safety and health problems faced today by American workers are
significant and growing. Unfortunately, OSHA has failed to address many
well-recognized hazards and has not kept up with new hazards or changes
in the workplace and workforce. After more than three decades since the
OSH Act was enacted its time for the Congress to turn its attention to
these problems and to take action to improve worker safety and health
protections.
The AFL-CIO urges this committee to focus attention on major safety
and health issues and the Administration's policies and initiatives
through ongoing oversight and investigations. Key issues for
examination include the safety and health problems faced by Latino and
immigrant workers, protecting health care workers and responders from
pandemic flu and protecting workers from ergonomic hazards. We also
recommend that the committee conduct an in-depth investigation into the
true toll of occupational injuries and illnesses and the reasons why a
large proportion of job injuries and illnesses are going unreported and
uncounted.
Some of the main gaps in worker protections are a result of
deficiencies in the OSH Act itself. Extending coverage to all workers,
enhancing civil and criminal penalties, and strengthening whistleblower
protections for workers who raise job safety concerns require changes
in the law. The Protecting America's Workers Act that will be
introduced today addresses these fundamental issues and we urge the
Congress to act on it expeditiously.
We also urge the committee to examine the issue of OSHA standard
setting and regulation, why the standard setting process is no longer
working and what can be done to fix it and update protections. We
recommend that the committee examine the standards and standard setting
practices in California and Washington under their State OSHA programs,
which are more effective than Federal OSHA. Given the backlog in
protections at the Federal level, we believe the Congress should
consider updating the permissible exposure limits for toxic substances
through legislative action, similar to the procedure that was utilized
to establish an initial body of regulation under section 6(a) of the
OSH Act in 1971.
Congress should also act to increase the resources available to
OSHA, particularly for its enforcement and standard setting programs,
so that the agency can move more quickly to set needed standards and
expand oversight of dangerous workplaces.
As we approach Workers Memorial Day and the 36th anniversary of
OSHA on this April 28th, we ask the Congress and the Nation to recommit
to the promise of a safe job for every American worker, made more than
three decades ago, and do everything possible to ensure that this
promise is finally fulfilled.
Workplace Fatalities Since the Passage of OSHA \1\ \2\
------------------------------------------------------------------------
Employment Fatality
Year Work deaths (000) \3\ rate \4\
------------------------------------------------------------------------
1970............................. 13,800 77,700 18
1971............................. 13,700 78,500 17
1972............................. 14,000 81,300 17
1973............................. 14,300 84,300 17
1974............................. 13,500 86,200 16
1975............................. 13,000 85,200 15
1976............................. 12,500 88,100 14
1977............................. 12,900 91,500 14
1978............................. 13,100 95,500 14
1979............................. 13,000 98,300 13
1980............................. 13,200 98,800 13
1981............................. 12,500 99,800 13
1982............................. 11,900 98,800 12
1983............................. 11,700 100,100 12
1984............................. 11,500 104,300 11
1985............................. 11,500 106,400 11
1986............................. 11,100 108,900 10
1987............................. 11,300 111,700 10
1988............................. 10,800 114,300 9
1989............................. 10,400 116,700 9
1990............................. 10,500 117,400 9
1991............................. 9,900 116,400 9
1992\2\.......................... 6,217 117,000 7
1993............................. 6,331 118,700 8
1994............................. 6,632 122,400 5
1995............................. 6,275 126,200 5
1996............................. 6,202 127,997 4.8
1997............................. 6,238 130,810 4.7
1998............................. 6,055 132,684 4.5
1999............................. 6,054 134,666 4.5
2000............................. 5,920 136,377 4.3
2001............................. 5,915* 136,252 4.3
2002............................. 5,534 137,700 4.0
2003............................. 5,575 138,928 4.0
2004............................. 5,764 140,411 4.1
2005............................. 5,734 142,894 4.0
------------------------------------------------------------------------
\1\ Fatality information for 1971-1991, from National Safety Council
Accident Facts, 1994.
\2\ Fatality information for 1992 to 2004 is from the Bureau of Labor
Statistics, Census of Fatal Occupational Injuries. In 1994, the
National Safety Council changed their reporting method for workplace
fatalities and adopted the BLS count. The earlier NSC numbers are
based on an estimate, the BLS numbers are based on an actual census.
\3\ Employment is an annual average of employed civilians 16 years of
age and older from the Current Population Survey, adjusted to include
data for resident and armed forces from the Department of Defense.
\4\ Deaths per 100,000 workers.
*Excludes fatalities from the events of September 11, 2001.
Estimates of the True Toll of Workplace Injuries and Illnesses Compared to Bureau of Labor Statistics (BLS)
Reports
[2005]
----------------------------------------------------------------------------------------------------------------
Estimated 2005 Figures
Accounting for Impact 2005 Data Reported by
of Undercounting Bureau of Labor
Injuries and Illnesses Statistics (BLS)
\1\
----------------------------------------------------------------------------------------------------------------
Total Number of Nonfatal Injuries and Illnesses in Private 12.6 million 4.2 million
Industry.....................................................
Total Nonfatal Injury and Illness Case Rate in Private 13.8 4.6
Industry (Cases per 100 workers).............................
Total Number of Injuries and Illnesses Involving Days Away 3.6 million 1.2 million
from Work....................................................
Case Rate for Nonfatal Injuries and Illnesses Involving Days 4.05 1.35
Away from Work (Cases per 100 workers).......................
Total Number of Musculoskeletal Disorders--Cases Involving 1,126,620 375,540
Days Away from Work..........................................
Total Number of Estimated Cases of Musculoskeletal Disorders.. 3,792,780 1,264,260
----------------------------------------------------------------------------------------------------------------
\1\ A detailed comparison of individual injury and illness reports from various reporting systems found that
only one in three workplace injuries and illnesses were reported on the OSHA Log and captured by the Bureau of
Labor Statistics Survey. This study did not address the number of injuries and illnesses that are not reported
to any reporting system in the first place. Thus, this study represents a conservative estimate of
underreporting of the true toll of injuries and illnesses. For more details on the study, see the paper by
Rosenman, et al., ``How Much Work-Related Injury and Illness is Missed by the Current National Surveillance
System?'' Journal of Occupational and Environmental Medicine, Vol. 48, pages 357-365, 2006.
Federal OSH Budget and Personnel
[Budget Fiscal Year 1975-2007]
------------------------------------------------------------------------
Positions Fiscal
Year 1975-2007
Fiscal year Budget (Staff--Full Time
Equivalent
Employment)
------------------------------------------------------------------------
2007.............................. $485,074,000 2,173
2006.............................. 472,427,000 2,173
2005.............................. 464,224,000 2,208
2004.............................. 457,500,000 \2\ 2,236
2003.............................. 453,256,000 2,313
2002.............................. 443,651,000 2,313
2001.............................. 425,886,000 2,370
2000.............................. 381,620,000 2,259
1999.............................. 354,129,000 2,154
1998.............................. 336,480,000 2,171
1997.............................. 324,955,000 2,118
1996.............................. 303,810,000 2,069
1995.............................. 311,660,000 2,196
1994.............................. 296,428,000 2,295
1993.............................. 288,251,000 2,368
1992.............................. 296,540,000 2,473
1991.............................. 285,190,000 2,466
1990.............................. 267,147,000 2,425
1989.............................. 247,746,000 2,441
1988.............................. 235,474,000 \1\ 2,378
1987.............................. 225,811,000 2,211
1986.............................. 208,692,000 2,166
1985.............................. 219,652,000 2,239
1984.............................. 212,560,000 2,285
1983.............................. 206,649,000 2,284
1982.............................. 195,465,000 2,359
1981.............................. 210,077,000 2,655
1980.............................. 186,394,000 2,951
1979.............................. 173,034,000 2,886
1978.............................. 138,625,000 2,684
1977.............................. 130,333,000 2,717
1976.............................. 139,243,000 2,494
1975.............................. 102,327,000 2,435
------------------------------------------------------------------------
Source: Occupational Safety and Administration.
\1\ Budget and personnel were increased when the California State plan
turned back to Federal OSHA jurisdiction.
\2\ Amount after rescission.
Fatal Work Injuries by Race, 1992-2005
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
1992 1993 1994 1995 1996 1997 1998 1999 2000 2001\1\ 2002 2003 2004 2005
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total Fatalities.............................................. 6,217 6,331 6,632 6,275 6,202 6,238 6,055 6,054 5,920 5,900 5,534 5,575 5,764 5,734
White............................................................. 4,711 4,665 4,954 4,599 4,586 4,576 4,478 5,019 4,244 4,175 3,926 3,988 4,066 3,977
Black or African American......................................... 618 649 695 684 615 661 583 627 575 565 491 543 546 584
Hispanic.......................................................... 533 634 624 619 638 658 707 730 815 895 841 794 902 923
Asian or Pacific Islander......................................... 169 190 179 161 170 195 148 192 185 182 140 158 180 163
American Indian or Alaskan Native................................. 36 46 39 27 35 34 28 57 33 48 40 42 28 50
Other Races/Not Reported.......................................... 150 147 141 185 158 114 111 146 68 50 96 50 42 35
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Source: U.S. Department of Labor, Bureau of Labor Statistics, Census of Fatal Occupational Injuries, 1992-2005.
\1\ Excludes September 11 fatalities.
Job Safety and Health Appropriations (Fiscal Year 2001-2008)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fiscal year
Category Fiscal year Fiscal year Fiscal year Fiscal year Fiscal year Fiscal year Fiscal year 2008
2001 2002 2003 2004 2005 \1\ 2006 \6\ 2007 CR \7\ Request
--------------------------------------------------------------------------------------------------------------------------------------------------------
OSHA (in thousands of dollars):
Total....................................... 425,886 443,651 453,256 457,500 464,224 472,427 485,074 490,300
Safety & Health Standards....................... 15,069 16,321 16,119 15,900 15,998 16,462 16,900
Federal Enforcement............................. 151,836 161,768 164,039 166,000 169,601 172,575 183,000
State Enforcement............................... 88,369 89,747 91,139 92,000 90,985 91,093 91,100
Technical Support............................... 20,189 19,562 20,234 21,600 20,735 21,435 22,100
Federal Compliance Assistance................... 56,255 58,783 61,722 67,000 70,837 72,545 79,600
State Compliance Assistance..................... 48,834 51,021 53,552 52,200 53,346 53,357 54,500
Training Grants \3\............................. 11,175 11,175 11,175 10,500 10,423 10,116 10,116 0
Safety & Health Statistics...................... 25,597 26,257 26,063 22,200 22,196 24,253 32,100
Executive Administration/Direction.............. 8,562 9,017 9,213 10,000 10,102 10,591 11,000
-------------------------------------------------------------------------------------------------------
NIOSH (in thousands of dollars):
Total....................................... 260,134 276,460 274,899 278,885 285,357 254,401* 254,401 253,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Includes a .83 percent recission, that was part of the final fiscal year 2005 Consolidated Appropriations bill (Dec 8, 2004).
\2\ From the President's Request, Budget of the United States Government, fiscal year 2006--Appendix (2/7/05).
\3\ This line item was previously combined with Federal Compliance Assistance.
\4\ This line item was added in the Senate Appropriations Committee recommendation January 15, 2003.
\5\ This line item was added in the President's fiscal year 2004 budget request.
* $34.8 million transferred to business services. TAP for administrative services eliminated. Direct comparison with NIOSH funding for earlier years,
which included these administrative costs, cannot be made.
\6\ Reflects 1 percent across the board recission.
\7\ Amounts do not include the 50 percent of costs for salary and benefit increases provided for under the Continuing Resolution for fiscal year 2007
(House Joint Resolution 20) enacted on February 15, 2007.
Federal OSHA Inspection/Enforcement Activity (Fiscal year 2000-2006)
--------------------------------------------------------------------------------------------------------------------------------------------------------
fiscal year fiscal year fiscal year fiscal year fiscal year fiscal year fiscal year
2000 2001 2002 2003 2004 2005 2006
--------------------------------------------------------------------------------------------------------------------------------------------------------
Inspections............................. 36,350 35,941 37,565 39,884 39,246 38,783 38,589
Safety.............................. 27,734 27,989 29,516 31,703 31,499 31,136 31,846
Health.............................. 8,616 7,952 8,049 8,181 7,747 7,647 6,743
Complaints.......................... 8,401 8,362 7,887 7,994 8,082 7,732 7,384
Programmed.......................... 18,343 17,929 20,528 22,452 21,598 21,430 21,497
Construction........................ 19,507 20,238 21,384 22,959 22,404 22,181 22,901
Maritime............................ 472 416 362 379 381 407
Manufacturing....................... 8,536 8,060 8,287 8,576 8,770 8,467 7,691
Other............................... 7,835 7,227 7,532 8,018 7,693 7,754 7,590
Employees Covered by Inspections........ 2,089,546 1,491,212 1,483,319 1,609,833 1,520,885 1,561,399 1,213,707
Average Case Hours/Inspections
Safety.............................. 22.0 20.2 19.1 18.8 18.7 19.0 18.8
Health.............................. 35.0 33.4 32.7 34.7 35.6 34.8 34.4
Violations--Total....................... 80,472 78,715 78,247 83,269 86,475 85,054 83,726
Willfull............................ 524 656 392 391 446 726 466
Repeat.............................. 2,012 1,960 1,953 2,115 2,329 2,326 2,544
Serious............................. 52,489 53,099 54,512 59,474 61,334 60,662 61,085
Unclassified........................ 209 299 263 363 217 70 14
Other............................... 24,954 22,483 20,896 20,706 21,848 20,968 19,339
FTA................................. 284 218 231 220 301 302 278
Penalties--Total ($).................... 86,498,127 79,273,622 70,693,165 79,805,630 82,604,990 98,751,227 82,546,815
Willful............................. 19,119,386 16,469,828 10,540,094 12,419,511 13,339,071 31,431,427 14,985,450
Repeat.............................. 8,876,269 7,816,889 7,479,806 9,094,708 9,327,664 8,454,113 9,559,903
Serious............................. 50,365,620 48,088,016 47,248,283 50,897,990 53,467,165 52,965,118 53,298,790
Unclassified........................ 3,903,859 3,692,309 2,620,058 3,626,250 2,194,084 1,506,735 558,650
Other............................... 2,049,916 2,312,062 2,239,423 2,685,997 2,846,313 3,230,440 3,165,197
FTA................................. 2,183,077 894,518 565,501 1,081,174 1,430,693 1,163,394 978,825
Average Penalty/Violation ($)........... 1,075 1,007 903 958 955 1,161 986
Willfull............................ 36,487 25,106 26,888 31,763 29,908 43,294 32,158
Repeat.............................. 4,412 3,988 3,830 4,300 4,005 3,635 3,758
Serious............................. 960 906 867 856 872 873 873
Unclassified........................ 18,678 12,349 9,962 9,990 10,111 21,525 39,904
Other............................... 82 103 107 130 130 154 164
FTA................................. 7,687 4,103 2,448 4,914 4,753 3,852 3,521
Percent Inspections with Citations 9.6% 9.4% 8.2% 8.6% 8.0% 7.7% 7.2%
Contested
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: OSHA IMIS Inspection 6 Reports, fiscal year 2000, fiscal year 2001, fiscal year 2002, fiscal year 2003, fiscal year 2004, fiscal year 2005,
fiscal year 2006.
Number of U.S. Establishments and Employees Covered Per OSHA Full Time Equivalent (FTE) Staff, 1975-2005
----------------------------------------------------------------------------------------------------------------
OSHA Full Time
Annual Average Annual Average Equivalent Establishments Employees
Fiscal Year Employment \1\ Establishments \1\ (FTE) Staff Covered Per Covered Per
\2\ OSHA FTE OSHA FTE
----------------------------------------------------------------------------------------------------------------
2005........................ 131,571,623 8,571,144 2,208 3,882 59,589
2000........................ 129,877,063 7,879,116 2,259 3,488 57,493
1995........................ 115,487,841 7,040,677 2,196 3,206 52,590
1990........................ 108,657,200 6,076,400 2,425 2,506 44,807
1985........................ 96,314,200 5,305,400 2,239 2,370 43,017
1980........................ 73,395,500 4,544,800 2,951 1,540 24,871
1975........................ 67,801,400 3,947,740 2,435 1,621 27,845
----------------------------------------------------------------------------------------------------------------
\1\ U.S. Department of Labor, Bureau of Labor Statistics, Employment and Wages, Annual Averages (Total Covered).
\2\ U.S. Department of Labor, Occupational Safety and Health Administration (OSHA).
Federal OSHA General Duty Citations and Guidelines on Ergonomic Hazards Under the Bush Administration
----------------------------------------------------------------------------------------------------------------
General Duty
Citations
Year Ergonomic Status--Number Status--Number
Hazards Cases Closed Cases Pending
(Number)
----------------------------------------------------------------------------------------------------------------
2001............................................................ 0
2002............................................................ 0
2003............................................................ 12 11 1
2004............................................................ 4 4 0
2005............................................................ 1 1
2006............................................................ 0
-----------------------------------------------
Total....................................................... 17 16 1
----------------------------------------------------------------------------------------------------------------
Source: OSHA web page www.osha.gov. Search of General Duty Citations/Ergonomic Hazards, April 2007, http://
www.osha.gov/pls/imis/generalsearch.html.
Ergonomics Guidelines Issued By Bush Administration: Nursing
Homes--March 2003; Retail Grocery--May 2004; and Poultry Processing--
September 2004.
Senator Murray. Thank you very much for your testimony.
Ms. Compagna.
STATEMENT OF KONNIE COMPAGNA, R.N., NURSE AT VALLEY MEDICAL
CENTER, KENT, WASHINGTON
Ms. Compagna. Senator Murray, members of the Employment
Workplace Safety Committee, I thank you for this opportunity.
My name is Konnie Compagna. I am a Registered Nurse in the
State of Washington. I work in the birth center of a hospital
that has approximately 250 beds, near Seattle and I've been a
nurse for 38 years.
I'm also a member of the Service Employees International
Union 1199 Northwest. My union represents 21,000 hospital
workers in the State of Washington and 1.8 million members
nationwide.
I am here to testify that my co-workers--what my co-workers
and I want you to know. Our government safety net to protect
workers from health and safety hazards is broken. We lack the
enforcement ability to deal with the numbers of workplaces and
the standards to address the variety of hazards that face
workplace employees today.
It would take 130 years for OSHA to inspect every
workplace, even if they just did it once. If OSHA does inspect,
four or five of these inspectors, I'm told are in the
manufacturing/construction field. They are not experts in the
industry. Yet today's workers in hospitals and nursing homes
have a higher injury rate and illness rate than workers in
mines, manufacturing or construction.
There are no standards to prevent neck, back and shoulder
injury, which is the major cause of injury in our field that
are being caused by manual lifting and transferring of
patients. Yet 12 percent of our nurses are leaving the bedsides
due to these injuries, which is exacerbating the already
critical nursing shortage.
There are no standards to prevent workplace violence, which
is occurring ever more increasingly. A major hazard to the
sector where nearly half of the nonfatal assaults occur to
these workers. There are no standards to protect workers from
pandemic flu, airborne biological agents and the government is
telling us to be prepared for such an event as a national
priority.
In the labor and delivery unit where I work, I estimate
that 25 percent of my co-workers have been disabled by back or
shoulder injuries. I, myself suffer from a shoulder and elbow
injury, which would prevent me from ever going back into the
medical surgical units to lift anybody bigger than a newborn.
As a charge nurse on my unit, I assign our nurses based on
who can lift what, who can push what wheelchairs. It troubles
me mostly that I know that those co-workers that are presently
lifting might likely become the workers who will not be able to
lift tomorrow and it's only a matter of equipment--upfront
investment in the equipment. There is no equipment in our
hospital.
The challenge is even greater for the rest of the hospital
because we do have an aging nursing population and we are also
facing an ever-increasing obesity in our patients. Just last
week, on our 16-bed intensive care unit, we had four patients
that were between 300 and 400 pounds. Americans are getting
bigger and bigger.
A female employee, a worker in the hospital is required to
lift 40 pounds but what is half of a 300 or 400 pound patient?
And if you could get a couple of more workers and four of you
lift, it's still an impossible and very dangerous task.
Armed by what I and my coworkers were experiencing, I
started to work with my union to learn about back injuries and
how to prevent them. We also learned that there are dozens of
studies that show that safe patient handling programs that use
mechanical lifting and transfer devices can dramatically cut
these injuries. Yet despite this overwhelming evidence,
according to OSHA, only 10 to 20 percent of nursing homes or
fewer than 5 percent of hospitals have such equipment in place.
To fill the void of OSHA inaction, last year our union
worked collaboratively with our State legislators and the State
of Washington Hospital Association and I come here today proud
to tell you that the State of Washington now has the most
comprehensive law to protect patients, to protect nurses and
other caregivers by establishing standards for safe patient
handling.
The impact of the Washington State Safe Patient Handling
Act will be No. 1, it is going to stem the accidents of
experienced nurses from the bedside that is so critically
needed. No. 2, it will help attract new nurses to our
profession. No. 3, we will be able to improve the quality of
patient care. No. 4, we will reduce injuries and No. 5, we will
reduce workers' compensation premiums and ultimately save
employers and taxpayers millions of dollars, just by this
simple act of upfront investing in lifting equipment.
Six other States have already passed this Safe Patient
Handling law and six others are considering these laws. In
closing, I just want to share with you what we have learned.
Enacting the Safe Lifting law demonstrates that such a standard
is clearly feasible. It is the right thing to do for workers,
for the industry and for patient care, whether it is safe
lifting, workplace violence prevention, pandemic flu or other
neglected workplace hazards, States are stepping forward, one
at a time, due to the inactivity on the Federal level. These
hazards affect workers nationwide and they cry out for the need
for national standards. Is this not why OSHA was created in the
first place? Thank you.
[The prepared statement of Ms. Compagna follows:]
Prepared Statement of Konnie Compagna, R.N.
Chairwoman Murray and members of the Health, Education, Labor, and
Pensions Subcommittee on Employment and Workplace Safety, thank you for
this opportunity to testify.
My name is Konnie Compagna. I am a registered nurse from Washington
State and a member of Service Employees International Union 1199
Northwest. I work as a labor and delivery nurse at a 250-bed hospital
10 miles south of Seattle. I have been a nurse for 38 years. My union
represents 21,000 hospital workers in Washington State and 1.8 million
members nationwide.
government's safety net is broken
I am here to tell you what my co-workers and I want you to know.
Our government's safety net to protect workers from health and safety
hazards is broken. We lack the enforcement and the standards to deal
with the number of workplaces and the variety of hazards that face
today's workforce.
You already know that it would take more than 130 years for OSHA to
inspect each workplace even just once. However, did you know that while
the majority of workers, as well as on-the-job injuries and illnesses
occur in the service sector, that OSHA continues to operate in an
industrial mindset--still conducting four out of five of their
inspections in manufacturing and construction?
Yet in the past decade, hospital workers have eclipsed the injury
and illness rates of workers in mining, manufacturing or even
construction. The rates for nursing home workers are substantially
higher. And is where 1 in 10 workers work today.
In the rare occasion when OSHA does inspect a hospital or other
service sector workplace, the agency is poorly equipped to address the
leading hazards that are causing the majority of the injuries and
illnesses due to a dearth of relevant health and safety standards.
There are no standards, for instance, to stem the tide of neck,
back and shoulder injuries caused by the manual lifting and
transferring of patients. Yet this problem is so severe that 12 percent
of nurses nationwide leave the bedside due to these preventable
injuries.
There are no standards to prevent workers from being assaulted on-
the-job, even though workers suffer nearly half of all nonfatal
workplace assaults that occur across industry sectors.
And there are no standards to protect workers from tuberculosis,
SARS, weapons of mass destruction, pandemic flu, or other airborne
biological agents, yet we have been told by the government officials
that preparation for such events is a national priority.
Even when OSHA issues voluntary guidelines they can't seem to get
it right. Draft ergonomics guidelines for nursing home workers were
substantially weakened at the behest of the nursing home industry. The
final product was significantly inferior to much more comprehensive
guidelines issued by the U.S. Veterans Administration years earlier.
The issuance of other promised ergonomics guidelines for hospitals and
other industry sectors are years behind schedule or perhaps have
stopped altogether.
Finally, with the relatively small budget available to OSHA, where
it would take more than 130 years to inspect each workplace just once,
we question spending half of a regulatory agency's budget on alliances,
partnerships and other employer assistance efforts. The GAO concluded
that these programs, designed to make a very small percentage of the
best employers better, in fact had no quantifiable benefits. Meanwhile
millions of workers who work for the worst employers go largely
unprotected.
I am sure you will agree with me based on these examples, that OSHA
has clearly lost sight of its mission as envisioned in the first 22
words of the OSH Act: ``To assure safe and healthful working conditions
for working men and women by authorizing enforcement of the standards
developed under the Act.''
too many back injuries to count
On my labor and delivery unit, I estimate that 40 percent of the
nurses have had debilitating back and shoulder injuries, usually
ruptured discs and rotator cuff injuries. After more than 30 years of
lifting patients in ICUs and other units, I suffer from shoulder and
elbow injuries which prevent me from working almost anywhere else in
the hospital.
I serve as the charge nurse for my unit, and every night I have to
make patient assignments to the nurses and nurse aides based on who can
still lift patients or push wheelchairs. But I know that the nurses and
aides who can lift and push today are the nurses who will be injured
tomorrow.
The challenges are even greater in the rest of the hospital. Aging
nurses are facing increasingly obese patients. Just last week on our
16-bed intensive care unit, we had 4 patients who weighed between 300
and 400 pounds. Every nurse on the night shift ended up submitting back
injury reports as they struggled to reposition these sedated patients
every 2 hours as required to prevent bed sores and dangerous skin
tears.
the back injury epidemic among health care workers
I have worked with my union to learn more about back injuries and
how to prevent them. Researchers tell us that the average nurse lifts
and transfers 1.8 tons each 8-hour shift and that the problem is only
getting worse as the average age of a nurse has increased to 47 years
old and that patients are getting heavier, with more than two-thirds of
patients now considered overweight.
Nurse aides suffer the highest number and rates of back injuries as
a percent of their overall injuries of any occupation and that the
rates and numbers of injuries for registered nurses follow close
behind.
Nationwide, we are experiencing a shortage of hundreds of thousands
of nurses, as many former nurses are not willing or not able to work in
hospitals. I know that excessive manual lifting and transferring of
patients is a major reason they are no longer at the bedside.
lifting injuries are preventable
Yet we also know that safe patient handling programs that use
mechanical lifting and transfer devices can dramatically cut these
injuries. The overwhelming evidence is reflected in dozens of peer-
reviewed scientific studies which document dramatic drops in injuries
with the introduction of safe patient handling programs.
These studies show that patient care is improved, as the dropping
of patients is reduced, patients incur fewer serious skin tears, and
patients report feeling more comfortable and secure.
Safe patient lifting equipment literally pays for itself. For
example, OSHA found one nursing home spent $60,000 on mechanical
lifting and transfer devices. A year later this facility reported a
savings in medical and workers compensation costs of $600,000; a
savings of $10 for every dollar invested.
And when you consider that 60 percent of all dollars come from tax
dollars, you can also see how such programs can also save taxpayer
dollars.
Kaiser Permanente, a employer with 150,000 workers, came to my
union in 2000 seeking help in reducing their skyrocketing workers
compensation costs. As they are self insured, every dollar they spend
compensating workers injured on the job comes directly out of their
bottom line.
Our union suggested that they first review their OSHA injury and
illness logs. The vast majority of their reported injuries were neck,
back and shoulder injuries--far and away the leading cause of these
injuries was the manual lifting and transferring of patients. Based on
these findings, we entered into a partnership with Kaiser to implement
safe patient lifting programs in all of their hospitals.
As a 2006 Wall Street Journal article reported, one Kaiser hospital
in Oregon ``bought 14 portable mechanical lifts, trained 700 nurses and
assistants to use them and ordered that no one raise, move, or lower a
patient without the help of these motorized devices that work with a
boom and sling. In 2 years, [this hospital] cut worker-injury rates by
29%.''
Recently Kaiser announced that their injuries caused by patient
lifting and handling have dropped 29 percent among all of their Oregon
hospitals, 38 percent among their 18 northern California hospitals and
an impressive 56 percent among their 11 southern California hospitals.
Yet despite this overwhelming evidence, according to the Federal
National Institute of Occupational Safety and Health ``only 10 percent
to 20 percent of nursing homes and fewer than 5 percent of hospitals
have [safe patient] lift programs.''
my union takes action
In 2006, working with my local union, we decided to try to fill the
vacuum left by inaction by the Federal Government. I wanted to do what
I could to reduce the likelihood that other nurses would incur a
disabling back, neck and/or shoulder injury.
We met and worked with receptive legislators in the Washington
State legislature. I am proud to report that Washington State now has
the most comprehensive law in the country to protect patients, nurses
and other caregivers by establishing standards for safe patient
handling.
The Washington State law, which was also supported by the
Washington State Hospital Association, requires that workers be trained
and that patient lifting devices be available in every unit of every
hospital to lift and transfer patients. In addition, a tax credit of
$1,000 per bed was allocated to hospitals to purchase lifting
equipment.
The impact of the Washington State Safe Patient Handling Act will
be to:
1. Help stem the exodus of experienced nurses from the bedside,
2. Help attract new nurses to the profession,
3. Improve the quality of patient care,
4. Reduce worker injuries,
5. Reduce workers compensation premiums, and
6. Save employers and taxpayers millions of dollars each year.
Right now my hospital has a lift team, but it is not in service on
evenings, nights or weekends. Full implementation of our new law cannot
happen soon enough. My hospital will soon have a comprehensive safe
patient handling program to help take the strain off us.
In addition to my State of Washington, safe patient handling laws
have already passed in Maryland, New York, Ohio, Rhode Island and
Texas. Bills are currently under consideration in California, Florida,
Hawaii, Illinois, Massachusetts, Minnesota, Nevada and New Jersey.
summary and conclusion
In the case of safe patient handling standards, we learned in my
State that they are clearly feasible and the right thing to do for
workers, the industry and for improved patient care. This epidemic of
back injuries caused by manual patient handling is exacerbating our
nurse shortage and costing employers and taxpayers.
However, the most important message I have learned from my
experience and from speaking to nurses and other workers across the
country is that this hazard--and many other hazards that workers face
in the fastest growing sectors of the economy--are hazards that are not
unique to Washington State or any other single State.
Whether it is safe patient handling, workplace violence prevention,
airborne biological agents such as pandemic flu, or a host of other
neglected workplace hazards, States are stepping forward one at a time
due to inaction at the Federal level. However, these hazards cry out
for national standards. Let us remember, this is why OSHA was created
in the first place.
Unfortunately, the Federal Government is essentially ``asleep at
the wheel'' when it comes to conducting inspections in the fastest
growing sectors of the economy, and has failed to issue meaningful
standards that impact the majority of our Nations' workers. The few
resources the agency does possess are squandered disproportionately on
assisting the top \1/2\ of 1 percent of employers with unproven
cooperative programs, instead of committing more resources toward going
after the worst.
I call upon this committee to push the Federal Government to expand
standard setting and enforcement to protect workers in the largely
neglected fastest growing sectors of the economy where the highest
numbers of workers are suffering injuries and illnesses. We also urge
you to evaluate and re-orient OSHA priorities to get the most done with
their very limited budget.
Thank you for this opportunity. I would be glad to respond to your
comments or questions.
Senator Murray. Thank you very much.
Mr. Cecich.
STATEMENT OF THOMAS CECICH, CIH, CSP, PRESIDENT, TFC AND
ASSOCIATES, APEX, NORTH CAROLINA
Mr. Cecich. Thank you, Senator Murray, Senator Isakson. I
have been a practicing safety professional for 35 years and
today, I speak as a volunteer member of the American Society of
Safety Engineers. ASSE represents more than 30,000 safety,
health and environmental professionals. We highly commend the
subcommittee for taking this opportunity to look critically at
OSHA's value to this Nation's workers.
Safety professionals have long understood that no single
approach can make a workplace safer and healthier. To do our
jobs, we work with management to ensure adequate leadership and
resources are available for safety. We develop training
programs to educate workers and management. We help management
set workplace standards and support management to follow
through with firm, consistent enforcements. Organizations that
achieve leading safety performance use all of these approaches.
From this professional perspective, most safety
professionals feel that OSHA--for OSHA to achieve its mission,
OSHA must use a broad array of tools. Consultative services,
alliances, cooperative programs, training and education
resources, standard setting and enforcement are all tools that
OSHA should be using to do its job.
With about 2,300 employees to serve more than 7 million
businesses, OSHA has to leverage its limited resources to reach
wide audiences. Cooperative programs help it to do that. OSHA's
alliances and partnerships, we believe, have helped the agency
become a more open organization that does a better job of
reaching out to its stakeholders. ASSE's alliance with OSHA has
resulted in increased involvement of OSHA staff in the safety
and health of the professional community.
Within industry specific groups, OSHA has been able to
create quality guidance documents, best practices and a broad
array of web-based resources. ASSE members have worked on e-
tools, working groups like Design for Safety and Spanish-
speaking workplace issues. OSHA has worked with ASSE to expand
the North American Occupational Safety and Health Week, helping
employers and schools bring attention to workplace safety. This
year, NAOSH Week begins next week, May 6th.
ASSE has many members who work for companies that
participate in OSHA's Voluntary Protection Program, VPP. VPP
recognizes excellent safety and health management achieved
through a cooperative approach through labor, management and
government. VPP companies have reduced their workplace rates to
below 50 percent of the national average, protect workers and
provide bottom line benefits to companies. Achieving VPP status
requires the investment of significant time and financial
resources. While VPP detractors view the program inspection
exemption as too great a benefit, our view is that VPP
companies get far more OSHA scrutiny during the long, detailed
VPP approval process than could ever occur during program
inspections. The offer of a small incentive to encourage
superior safety and health performance is a positive
investment.
OSHA's Safety and Health Achievement Recognition Program,
SHARP, gives small employers incentives and support to
implement safety and health programs. Participants lack in-
house safety expertise and find it too difficult to comply with
the complexity of OSHA regulations. SHARP participants receive
OSHA-sponsored site inspections and agree to correct safety and
health hazards. The program offers an opportunity to
voluntarily identify and correct workplace hazards, a win-win
for OSHA and small business.
While ASSE supports OSHA's cooperative efforts, our support
does not take away from ASSE's views that OSHA must be given
the resources necessary to fulfill its enforcement
responsibilities. As safety health professionals, we must note
that OSHA's standard setting process is broken and needs to be
fixed. The U.S. workplace is rapidly changing with new
technologies, a changing workforce and globalization. The OSH
Act limitations, congressional and executive branch actions,
OSHA's resource constraints and a litany of court challenges
have resulted in an inability of OSHA to update all regulations
and develop new standards in a timely way to fully protect the
U.S. workforce.
In conclusion, is OSHA working for working people? ASSE
would say, ``yes.'' Is there room for improvement? ASSE would
say, ``yes, definitely.'' Organizations that achieve world-
class status in protecting workers always challenge themselves
to get better. OSHA has succeeded in bringing national focus to
workplace safety, has improved millions of workers lives but
ASSE hopes that Congress can provide OSHA with the guidance and
support it needs to meet the current and future needs of this
Nation's workforce. Thank you for consideration of ASSE's
position.
[The prepared statement of Mr. Cecich follows:]
Prepared Statement of Thomas F. Cecich, on behalf of the American
Society of Safety Engineers (ASSE)
Chairwoman Murray and members of the committee, my name is Thomas
F. Cecich. I have been a practicing safety professional for over 35
years and am a retired vice president of the pharmaceutical company
GlaxoSmithKline where I had responsibility for Environment, Health and
Safety Global Business Support. I am a Certified Safety Professional
and Certified Industrial Hygienist who is currently a safety and health
management consultant. I speak today on behalf of the American Society
of Safety Engineers (ASSE), which I serve as Chair of its Government
Affairs Committee. ASSE represents more than 30,000 safety, health and
environmental (SH&E) professionals dedicated to seeing that every
worker has the best possible opportunity to go home healthy and safe
each day from their jobs. Founded in 1911, the Society is the largest
and oldest safety organization. Our 13 practice specialty areas include
construction, transportation, manufacturing, and health care, and our
members include in-house safety professionals, representatives of
labor, academia, and the public sector.
We highly commend the subcommittee for taking this opportunity
today to look critically at occupational safety and health issues. We
hope that this inquiry can lead to legislative initiatives that proceed
in a bipartisan manner and help cement what should be a meaningful
partnership between the Occupational Safety and Health Administration
(OSHA), labor, management and SH&E professionals like our members. Such
cooperative efforts can work to bring down the number of deaths,
injuries and illnesses among this Nation's working people.
From the viewpoint of an SH&E professional, achieving safe and
healthy workplaces requires the involvement at all levels of an
organization from senior leadership, middle management, line
supervision, workers and contractors. Everyone in an organization has
an appropriate role in minimizing risks in safe workplaces. Likewise,
safety professionals have long understood that there is no single
safety program element that will always work to achieve that goal.
Safety professionals work with management to ensure adequate leadership
and resources are provided to identify and reduce workplace risks.
Safety professionals work to build relationships with all
organizational stakeholders--management, workers, staff professionals,
and contractors--to encourage safe work practices and behaviors.
Safety professionals also develop and present training programs to
educate workers and management about workplace risks and necessary
corrective actions. Safety professionals help management set meaningful
and firm workplace safety and health standards that are designed to
eliminate or minimize the threat of workplace injuries and illnesses.
Finally, safety professionals support management in assessing
compliance with established safety rules and ensure that firm
enforcement and consistent penalties are applied. In short, safety
professional have long understood that there is not one effective
approach to achieving workplace safety. The organizations that have
consistently achieved leading safety performance have utilized all the
above approaches as workplace conditions dictate.
From this perspective, most safety professionals feel that, for
OSHA to achieve its congressional mandate of eliminating occupational
injuries and illnesses, it is essential that OSHA utilize a similar
broad array of tools in order to reach all types of organizations.
Consultative services, alliances, cooperative programs, training and
education, standards setting and enforcement are all tools that OSHA
must utilize. With more than 3,000 employees to serve approximately 6
million businesses, it is vital that OSHA leverage all its resources to
obtain the maximum benefit. While it is true that OSHA is and will
always be a regulatory enforcement agency, practicing safety
professionals have found that enforcement alone is not sufficient in
eliminating workplace injuries and illnesses in this country. As safety
professionals, we recognize that the other organizations testifying
today will focus on standards setting and enforcement. We believe it is
also important to highlight the value we see in the alliance and
cooperative programs that OSHA has developed.
alliances
Through a broad network of alliances and partnerships, ASSE
believes that OSHA has become a more open organization that does a
better job at reaching out to its stakeholders and the safety and
health community. If a history of OSHA on this matter were ever
written, we believe it would state that this Administration found in
John Henshaw a highly capable and experienced SH&E professional to lead
OSHA. Mr. Henshaw, like SH&E professionals do every day in their jobs,
saw the resources given him, the tasks at hand and the resource
limitations and decided to leverage those resources to build a new way
of trying to advance OSHA's mandate. We are pleased that Assistant
Secretary Foulke has continued to advance OSHA's commitment to this
approach.
ASSE itself is proud to have joined in one of the first Alliances
with OSHA that we believe has established a much more positive
cooperative relationship between OSHA and our members. The Alliance has
resulted in better opportunities for OSHA staff to be involved in the
safety and health professional community. For our members, the Alliance
has created a much more positive understanding of the wide-ranging
capabilities OSHA has in helping them achieve workplace safety, and a
much better appreciation for the challenge OSHA has in carrying out its
enforcement responsibilities. Our experience suggests that the Alliance
has resulted in a much more positive view of OSHA's role and has
mitigated the old us-against-them attitude within the safety and health
community.
With industry-specific groups, OSHA has been able to create quality
deliverable guidance documents, best practices, and a broad array of
web-based informational resources. Our members have participated in
various editorial boards for e-tools and other resources offered by
OSHA. We have members who have helped lead OSHA work groups on issues
like design for safety and small business safety. OSHA staff regularly
meets with ASSE's members interested in Spanish-speaking workplace
safety issues.
OSHA, through its alliance staff, has helped promote and expand
North American Occupational Safety and Health (NAOSH) Week to more than
30 meaningful events in more than 25 States that help employers and
even schools bring attention to workplace safety, unlike any other
event in the United States, Canada and Mexico. This year, NAOSH week
begins on May 6, and we invite the subcommittee members to join with
ASSE and OSHA in helping promote workplace safety through this event.
In addition to its national alliance, ASSE chapters have formed
their own alliances with OSHA in four regional offices. For example,
the OSHA Region IV Office formed an Alliance with ASSE's chapter in
Mobile, Alabama, to promote safe and healthy work habits to technical
school students. The Alliance members share information, guidance and
access to training resources to help educate young workers in hazard
recognition before they leave school and prior to taking their places
in the U.S. workforce.
We view the Alliance as a success, and our intent is to continue to
work with OSHA to respond to safety and health workplace issues as they
develop in the millions of workplaces across this country.
other cooperative programs
OSHA's other cooperative activities have likewise helped OSHA
become a more multifaceted participant in safety and health.
OSHA's Voluntary Protection Program (VPP) initiative was
established in 1982, was restructured in 1996 and is still effective.
Over the years, ASSE has submitted comments to the agency to enhance
and expand VPP and is pleased to see that the agency has launched a VPP
program for the construction sector as well as making inroads into
encouraging smaller business involvement. Many ASSE members are safety
professionals at companies that are VPP participants. At VPP ``Star''
worksites, data indicate that lost workday rates are 53 percent below
national averages.
VPP emphasizes the importance of worksite safety and health
programs in meeting the goals of the OSH Act, and provides official
recognition of excellent employer safety and health management through
a cooperative approach among labor, management, and government. Sites
are approved based on their written safety and health program and their
overall performance in meeting the standards set by the program. VPP is
valuable in providing recognition and incentives for companies that are
doing the right things, such as voluntarily implementing proactive,
state-of-the-art safety and health management programs that are
demonstrably effective. VPP participation has been demonstrated to
reduce the incidence and severity of workplace injuries and illnesses,
thus protecting workers while also providing financial benefits to the
companies that go beyond mere compliance with OSHA standards.
Companies that commit to achieving VPP status seek to be recognized
for their leadership in protecting workers. Achieving VPP status also
requires significant time and financial resources. Some detractors of
the VPP program point to the programmed inspection exemption as too
great a benefit for companies to receive for complying with the law.
The truth is that VPP companies routinely exceed regulatory
requirements and voluntarily receive far more OSHA scrutiny during the
long and detailed VPP approval processes than can ever occur through
programmed inspections. Further, companies can still be inspected and
cited if conditions trigger employee complaints or they suffer a
catastrophic event. Companies can also lose VPP status if they let
their standards slip.
Although VPP is site-specific, ASSE was pleased to see OSHA
recently roll out its pilot ``VPP Corporate'' program, which allows
corporations committed to VPP and interested in achieving VPP
recognition at facilities throughout their multisite organization with
a more efficient means to accomplish this goal. ASSE has long advocated
a philosophy of corporate responsibility for occupational safety and
health and this approach may help raise the profile of SH&E activities
to the highest levels. Some of the VPP Corporate participants are
broadly recognized as some of the safest companies in America.
The ASSE strongly submits that programs like VPP that offer small
incentives to encourage superior safety and health performance are good
investments for both companies and taxpayers in that they allow OSHA to
utilize its limited enforcement resources to target bad actors and
those organizations that fail to safeguard their workers.
sharp program
OSHA's Safety and Health Achievement Recognition Program (SHARP)
provides incentives and support to develop, implement and improve
effective safety and health programs for smaller companies.
Participating employers may be exempted from OSHA programmed
inspections for a period of 2 years, and SHARP renewal exemptions will
be for a period of up to 3 years. All consultation and visits are
conducted at employer request.
Typical SHARP participants are smaller high-hazard businesses,
generally with fewer than 250 employees. Participants undergo a
comprehensive site visit and agree to correct all identified safety and
health hazards, which is the preventative, functional equivalent of an
OSHA wall-to-wall inspection except that civil penalties are not
imposed.
Everyone agrees that OSHA does not have the personnel to regularly
inspect every worksite under its jurisdiction--most companies will
never experience an OSHA inspection unless they have a serious incident
or have employees who report problems to the agency. The SHARP program
is a sound method of helping this largely uninspected sector understand
what is needed for compliance, and providing them with qualified
assistance in making improvements to their physical conditions and
safety/health programmatic infrastructure proactively, before an injury
or illness triggers an initial contact with OSHA.
SHARP participants report a successful return on investment when
implementing the recommendations made by the consultants. One SHARP
program participant indicated to OSHA that it reduced its lost workday
incidence rate from 28.5 to 8.3 and reduced insurance claims from
$50,000 to $4,000 through decreases in both direct and indirect losses
through a reduction in its number of back and shoulder injuries. This
is consistent with other research on the value of safety.
a strong osha
While ASSE fully supports the cooperative efforts of OSHA as a
meaningful addition to the tools OSHA is able to use to help advance
safety and health of workers, that support does not take away from
ASSE's view that OSHA must be given all the resources necessary to
fulfill its enforcement responsibilities given to it by Congress.
Unlike some other stakeholders, we do not view this situation as
either/or in nature. An increased commitment to standard-setting and
increased enforcement capacity must also be supported by increased
funding for OSHA by Congress, even when an Administration does not
support such increases. As a Nation, our commitment to workplace safety
should be such that OSHA can do the necessary relationship-building,
resource development and information outreach necessary to build
awareness and commitment to workplace safety and health among
employers, workers and the public and do more in standards development
and enforcement.
As safety and health professionals, we are compelled to note that
the safety and health standards-setting process is broken and needs to
be fixed. The workplace of the 21st Century is rapidly changing due to
new technologies, a changing workforce, and globalization. Limitations
in the original act, subsequent congressional and executive branch
actions, resource constraints at OSHA and a litany of private court
challenges have resulted in an inability of OSHA to update old
regulations and to develop new standards in a timely manner to protect
the U.S. workforce. We encourage Congress to engage in stakeholder
dialogue to improve its standard-setting process to protect workers
while preserving the productivity of American business.
ASSE is aware that legislation is being introduced this month that
will address such areas as increased civil and criminal penalties,
enhancement of whistleblower protections, and coverage of State and
local public sector workers. We applaud Congress for moving these
issues forward and will carefully review all new legislation in light
of our commitment to a strong, effective OSHA. We look forward to
offering our members' perspective.
conclusion
Is OSHA working for working people? Yes. Is there opportunity for
improvement? Yes. The OSH Act has changed little in 36 years. During
that time, huge changes and many advances have occurred in U.S.
workplaces and our workforce. OSHA has evolved during that period to
reach as many stakeholders as possible. In organizations that achieve
world-class status in managing safety and protecting workers, a
characteristic that continuously stands out is that these organizations
are always challenging themselves to get better. Since its beginning,
OSHA has succeeded in bringing a national focus to workplace safety and
positively impacted the lives of millions of workers. However, like
world-class organizations, OSHA must seek continuously to improve its
safety and health processes. ASSE hopes that Congress can provide OSHA
with the guidance and support OSHA needs to continuously reinvent
itself to meet the needs of this Nation's workforce. Today's hearing is
an important part of that continuous improvement process.
Thank you for your consideration of ASSE's position on these
significant issues. I will be pleased to respond to any questions you
may have at this time as well as provide any additional information
that you may request for the record.
Senator Murray. Thank you very much to all of you for your
testimony. I am going to turn to Senator Isakson first for his
questions as he has another engagement and needs to leave.
Senator Isakson. And I apologize and I thank the Chairman
immensely for letting me go first and I apologize that I'm
going to get up and leave after my questions. Please don't take
it as an offense but I have another responsibility I have to
take care of.
Mr. Cecich, I want to associate myself with the last
paragraph of your remarks, which I think is reflective of
precisely how I feel and that is that OSHA has done many good
things and there are many good things it still can do and there
is room for improvement and I think all of us agree with that.
The mechanism is how you get there.
To that end, Dr. Michaels, I am told you have written--now,
I didn't read this so if you didn't write this, you tell me I
was misinformed and I'll talk to that person later.
[Laughter]
Senator Isakson. Uncertainty, you write, should not be an
excuse for inaction. Is that a correct statement?
Mr. Michaels. Correct. Close enough. I don't know if I've
written exactly that but----
Senator Isakson. This is going to sound like a loaded
question but don't over react. Should uncertainty then require
absolute regulation?
Mr. Michaels. No, I mean, obviously I think--probably what
I've written is really in some ways, you flip it over.
Certainty shouldn't be a requirement for regulation. For
example, the artificial butter flavor. We have tons of studies
of people exposed to artificial butter flavor who've gotten
sick. We have animal studies that show they've gotten sick but
we've no one in the country who has been exposed only to that
one chemical, diacetyl.
So we can't know for absolutely sure that that chemical
causes illness. On the other hand, if we're going to wait to do
that study, which we can't do, we're not going to do anything.
So that's why I think you have to think about uncertainty and
see whether the implications of not addressing the problem,
given the uncertainty.
Senator Isakson. Well, that's--I don't disagree at all. I
think that's a great answer because a lot of times when we get
in hearings like this, it's one of these pendulum deals where
the pendulum goes too far the other way based on momentum
rather than actual fact and a lot of times when you have a
situation like that--and I was totally unaware of the microwave
popcorn butter disaster that was going but when four people die
and where there is an association with a common product but
there is no definitive answer, that doesn't mean you do nothing
but it also doesn't mean you might go too far either and so
that was the only point I wanted to make. Both of the ladies
and Ms. Compagna, my daughter informed me last night, she was
dilated to 3 centimeters so I'm so excited I don't know what to
do. I've got another grandchild on the way but both of you
referred to pandemic flu and it's an open question to both of
you. Is that a responsibility of OSHA?
Ms. Seminario. Yes, when it comes to protecting the workers
and responders who will be affected. They certainly have a
major responsibility there. There are a lot of other aspects of
pandemic flu that other parts of the government have
responsibilities for and they are dealing with.
The problem that we have with OSHA is that they are
refusing to move aggressively to put in place the measures in
facilities that will, indeed, be in place before a pandemic, to
protect workers in the event of a pandemic. And we think this
is critical. I've been doing safety and health work for 30
years, dealing with lots of hazards. I can tell you that
personally, I am more concerned and really terrified about this
potential--for a flu pandemic and the risks that the workers
and responders face because we are totally unprepared and OSHA
is refusing to use its authority to step forward, to put in
place the measures, the infectious control programs, the
respirator programs, the training programs--put them in place
now because once a pandemic occurs, it's going to be too late.
Senator Isakson. Well, the reason I asked that question is
that I know how much we are investing and have been in the last
few years, both in trying to be ready for the pandemic when it
comes and the agencies that are already involved in it, like
for example, CDC, which happens to be in my home State of
Georgia, that is investing hundreds of millions of dollars on
working on a lot of this. I didn't--when you referred to OSHA
and pandemic, it kind of came out of right field for me because
I've thought about so much stuff we were doing with CDC.
Ms. Compagna. Yeah, there is no plan at our hospital for
that.
Senator Isakson. The hospital has no plan whatsoever?
Ms. Seminario. No.
Senator Isakson. OK. And one other question, Ms. Seminario.
You said in referring to ergonomics that there had been no--I
think you said this--that there had been no standard put out by
OSHA and then you said there had been only one significant
standard. Was that regarding something else or was that
regarding ergonomics?
Ms. Seminario. No, on ergonomics, there is no standard.
There was a standard. It was repealed in 2001 by the Congress.
The only standard that the Bush administration has put out on a
major safety and health hazard is a standard on hex--chromium,
a carcinogen and they were ordered to do so by the court. In
the last 6 years, there had been no other major significant
rules issued by this Administration.
Senator Isakson. Last, on the non-American workers, the
foreign workers. You state that their injury rate is so much
higher. Is that related to them not being able to speak English
in some cases?
Ms. Seminario. I think there is a lot of different reasons.
I think one of the reasons is that when you look at where these
workers are working, they are working in very dangerous
industries and very dangerous jobs and so they face a lot of
hazards and then there are a whole set of issues with respect
to language problems, cultural issues but also just plain
exploitation. They are working for employers who believe they
can exploit them and don't put the protections in place. And
this is an area that really just needs a lot more focus, a lot
more attention to get a better handle on it, a better
understanding of what's really going on and what needs to be
done.
Senator Isakson. I want to thank the Chairman for letting
me go and apologize that I'm going to have leave and thank all
of our witnesses for taking their time to share with us today.
[Chorus of thank you.]
Senator Murray. Thank you very much, Senator Isakson. I
look forward to working with you on this. Since OSHA was
enacted 37 years ago, on average 16 people have died every day,
and in the past 6 years, one new rule has been put in place and
that was because of a court order. We know there are failures.
You talked about pandemic flu and just the ability to protect
our hospital workers who we are all going to rely on in a
pandemic flu situation. What do they have in place protecting
them? We know the marketplace has changed. We know there are
new chemicals out there. I would like to ask Ms. Seminario and
Mr. Cecich if you could just briefly give us what you think the
priorities for OSHA ought to be as we move forward. Mr. Cecich,
I'll start with you.
Mr. Cecich. Well, as we reflected, I don't know that we can
say there is an individual priority. There certainly needs to
be improvement in the standard setting process. It seems that
that needs to be a direct area with new technologies, nano-
technologies that need to be explored, the Global Harmonization
System, GHS, for the classification and labeling of hazardous
substances in the workplace.
Those are new technology, globalization type issues that
need to be addressed. There are old issues, such as permissible
exposure limits that have existed for 35 years that need to be
addressed and updated. So certainly rulemaking is an important
consideration. But we also think programs like--Voluntary
Protection Program, which has expanded literally exponentially
in the last 5 years--the number of companies that are coming
forth willingly, saying we want to be the best at managing
safety and health and reducing their workplace injuries by 50
percent.
We think those are the types of programs that OSHA should
be encouraging and indeed, they are, to encourage companies to
step forward and not only do these companies demonstrate their
own value to themselves, they are passionate about safety and
spreading that message to their peer companies and industry and
going to meetings and sharing with other companies the value
that safety brings to their organization.
So we think that's a parallel track that also is very
important for OSHA to continue to cultivate.
Senator Murray. Ms. Seminario.
Ms. Seminario. I think the priorities for OSHA need to be
focusing on the major hazards that are killing workers,
injuring them and making them sick. I mean, that is its job and
when you look at that, what you see is basically the biggest
source of job injuries--ergonomic hazards, 30 percent of
injuries. They should really be making that a higher priority.
We think a new standard needs to be set. Toxic chemical
exposures. We have very few chemicals that are regulated. The
permissible exposure limits are out of date. I think there is
agreement among many in the professional groups, unions and the
bigger employers about what needs to be done. I think we could
get together and do something on that, updating those limits.
The area of pandemic flu that I mentioned, as far as a
potential threat that is looming that could have bigger
devastation than anything we have seen. This is something we
all need to be focusing on now and make sure the protections
are in place. And one thing that I would also say is that I
think we have to look at building a foundation in safety and
health so we're not dealing with things one at a time--one
hazard, one chemical. One of the biggest disappointments for me
is under the Bush administration that OSHA abandoned putting in
place a safety and health program rule, a basic requirement
that employers identify hazards and correct them, involve
workers in the process, train their workers. Many States
already have this requirement.
It was a high priority for John Henshaw, the first
Assistant Secretary under President Bush but unfortunately, in
the anti-regulatory attitudes in the Administration, he was
forced to abandon it. So coming back to that particular rule, I
think would be very, very important.
Senator Murray. OK. We go back--and voluntary, I understand
that. It sounds really good. I worry though if we don't have
some rules and regulations, particularly for chemicals and
workplace hazards that there are those who, because of time,
costs, money and everything else, will just simply ignore them.
There is another aspect to a rule and that's enforcement and
consequences for people who don't follow the rules. In
Washington State, researchers have shown that enforcement
actually reduces injury rates in small companies. I wanted to
ask the panel if anybody had any experience with enforcement as
the motivator to get companies to do the right thing. Mr.
Cecich?
Mr. Cecich. Enforcement, at least--and I can only share my
experience and I've been called the Safety Cop in companies
I've worked for. Enforcement is a motivator but only, I think,
at the lower end of motivation. People want to--don't want to
be hurt. They want to feel good about safety and themselves and
safety is about behavior and it is very difficult to enforce
behavior. Standards are important to set workplace conditions,
to remove hazards.
Those are all critical elements and if employers don't do
those voluntarily, then enforcement is responsible for making
that happen. But indeed, it is only one portion of the puzzle,
if you will, of how to prevent injuries and illnesses. There is
a strong behavioral component that it is very difficult to
regulate and create standards around behavior.
Ms. Seminario. Because I think the enforcement, what it
does is it sends the message that these are serious issues that
have to be taken seriously and they also bring attention by
employers to focusing on issues. And I think enforcement needs
to be more than side-by-side, plant by plant. One of the things
we've seen to be most effective by OSHA is when they have an
enforcement initiative that deals over the particular hazard or
a particular industry. For example, the Reagan and Bush
administration--they had a major effort on ergonomics under
their General Duty clause and they took major actions in the
auto industry, in the meatpacking industry and what you had was
very substantial efforts being made by those employers in
putting in place the measures to deal with the problems.
So they sent a message not only to a particular employer
but to the whole industry and this Administration again, has
gotten out of the business of dealing with things on a national
basis and an industry basis and has gotten out of the business
of really leveraging their resources to bring about broad
change on a wide-scale basis.
Ms. Compagna. And in the medical industry, we had two
dramatic examples. One was the Safe Needle. There was an
airplane full of workers dying every year from needle sticks
that were happening in emergencies with getting hepatitis and
HIV and we passed a Safe Needle Stick--you know, they have caps
on needles as soon as the needle comes out of the patient's
body, the cap just goes over it.
So we had the regulation passed and the effect was, it
didn't have to be enforced because the threat of the
enforcement was enough and also, the wonderful thing also I
feel about this particular industry because it's so competitive
is that it strikes every hospital and every health care
industry equally at the same moment in time. So someone who
voluntarily does it is not going to be penalized because
they've got a greater cost than another company and it just
happened overnight, all these safe needles, all these
manufacturing companies just came up with these wonderful ideas
that people thought couldn't be solved.
And also with this safe lifting equipment, the same thing.
It will affect all hospitals simultaneously and yes, you always
have to have the threat of enforcement but we're finding that
the hospitals are responding just with the threat of
enforcement. So we're really, really pleased.
Senator Murray. You've had that legislation--I know it was
just implemented. Have you seen any impact of that yet?
Ms. Compagna. Not quite yet because it was established that
it would be progressive. So we're just about to move at this
point.
Senator Murray. I know that took bipartisan support, both
sides of the isle. Tell me how you did that.
Ms. Compagna. It was initiated by the unions but we worked
closely with our legislators and even the hospital association
got involved also and was willing to work collaboratively with
us. It is a win-win, win-win, win-win situation for everybody
as is everything else because the cost of workplace injuries is
so much more than prevention.
Senator Murray. OK, very good. Dr. Michaels, I wanted to
get back to you. It's really troubling to hear how many work-
related injuries and illnesses are missed in the OSHA and BLS
recordkeeping you referred to in your testimony. The academic
articles that you submitted will be included in the record.
But no matter how tiresome just plain numbers are and
everybody gets tired of hearing about them, they really are
critical for us to be able to understand some of the problems
and help us focus on priorities. What should we do here in
Congress to address this problem of recordkeeping and
underreporting of work-related injuries and illnesses?
Mr. Michaels. Senator, I think that's a very good question.
I would hope that this committee might have a hearing
specifically on this. I think there are a lot of people around
the country who have great expertise in recordkeeping and in
reporting from both in the occupational injury world and
elsewhere and this is the sort of question that--we could
involve the National Academy of Sciences and some of the best
minds in the country to address the problems and say, ``okay,
we know there is a problem.'' It's certainly not BLS's fault.
They've used the same system for a long time. They've attempted
to correct certain issues or make things easier by changing
reporting rules and I think the unforeseen consequence is
essentially this mis-reporting.
This is the sort of issue where we all sit down and really
think about this or maybe even ask the National Academy of
Sciences, which has taken on this issue before, actually in the
seventies or eighties but there were problems with fatality
reportings and there was a whole panel that looked at it and we
got great improvement.
Ms. Seminario. We did. We looked at--actually the fatality
issue was similar. A number of years ago, OSHA and BLS were
capturing half of the fatalities and what the recommendations
were is that we had to look beyond the employer-only reporting
system because if you rely only on that data, there are a lot
of things going on in workplaces that may cause the under
reporting of injuries and so what was done to expand it, to
look in multiple data sources, to look at workers' compensation
records, look at coroner's reports and look to sources that
were independent of the employer and beyond the workplace to
try and get a better picture of it. So I think that Dr.
Michaels is correct that this is an issue that we really need
to focus on, to think about seriously, to bring in other people
and really look at what can be done and also fund some
additional research. NIOSH has funded some of this research so
now we've got some sense of the numbers being--the discrepancy
in the numbers. I think we have to find out what's the cause as
to why the injuries aren't being reported in the workplace and
that's an area we'd like to see NIOSH do some additional work
and funding to look at what's behind injuries not being
recorded by employers and reported by workers.
Senator Murray. OK. I appreciate that.
Ms. Compagna. And employees are afraid of retaliation.
Senator Murray. Mr. Cecich, let me go back to you. You
talked about the Voluntary Protection Program. Is there any
evidence-based research that shows that does reduce the rate of
injury?
Mr. Cecich. Yes. In terms of actual reduction of injuries,
there is data that OSHA has posted on the Websites. I presume
it's accurate data, that companies that participate in the VPP
program, their disability or lost workday case incident rate is
less than 50 percent of the average for that industry group to
which they are in. So yes, there is, I think, pretty solid data
to say that those are the--that the companies in that program
have better records, better injury rates than----
Senator Murray. So because they are voluntarily complying,
they are keeping the records for those companies but those
companies that aren't voluntarily complying may not be keeping
records so we may be comparing apples and oranges when we----
Mr. Cecich. Well, it's possible. May I correct one notion--
the word voluntary compliance is a little misleading to people
because it implies that compliance isn't mandatory and it is.
As safety professionals, we don't like to use the word,
voluntary compliance, because we don't want anybody to have the
misconception that people can choose to comply or not. That's
not an option. We like compliance assistance and terms like
that.
The issue that was brought up--I think, based on the data,
the Michigan study that I've read, I think it's a real issue.
There probably are underreporting issues. I suspect that part
of it, there are certain industry niches or types of businesses
where it might be more of a problem than others. I think
organizations that are part of VPP generally are established
organizations. They are pulp and paper companies that compare
to other pulp and paper companies. I'm--on a personal and
purely antidotal level, I don't believe that comparing a VPP
company to a non-VPP company in the same industry that the data
quality is going to be significantly different. Now, I don't
have data to support that but that would be my supposition.
Senator Murray. Dr. Michaels.
Mr. Michaels. Let me just follow up on that. A little over
3 years ago, when it was still called the General Accounting
Office, the Government Accountability Office, issued a report
evaluating VPP and related programs and essentially said, ``you
know, they look great in that it's the right thing''--it may be
the right thing to do but there actually aren't any data that
would say that they are effective and they asked OSHA to
investigate this, to actually figure out a way to study this
question. As far as I know, nothing has been done. But that
would be a very useful thing to take on. I think we all agree
that VPP programs--and actually, I ran the VPP program when I
was at the Energy Department. There are good things and we
certainly should encourage employers to do them but, what I saw
is, it's the employers who are committed to safety who do a VPP
program. And so I don't know that they're really getting to the
source of the problem and OSHA is not investigating whether
they actually are.
Senator Murray. Yes, I can see where that is a challenge. I
do need to get to the floor. I have to manage a bill but Ms.
Seminario, if I could ask you one last question. I'm concerned
about this pandemic flu you mentioned and this exposure to
artificial butter flavoring. What are the barriers to OSHA
drafting an emergency temporary standard for one or all of
these kinds of exposures? Is that possible?
Ms. Seminario. Well, they've been petitioned to do so. We
petitioned them for----
Senator Murray. And their response back to you has been?
Ms. Seminario. Well, on pandemic flu, they said we can't do
it because a pandemic has not yet occurred and diacetyl, they
have not responded. I might say that in the State of
California, who got a similar petition, they are actually
drafting a standard. They have a draft rule that is being
developed and they've also got legislation moving forward in
their legislatures. So at the State level, there is movement
forward. At the Federal level, we've had no response.
Senator Murray. So you don't see any visible barriers to
it?
Ms. Seminario. No, I think it is a matter of political will
and priorities.
Senator Murray. OK. I appreciate it and I apologize to all
of you for keeping the hearing short. But again, your testimony
is all part of the record. There will be questions from other
members of the committee who were not able to be here this
morning as well as a few more from me. We will submit them to
you and would appreciate a response back. This committee is
adjourned.
Thank you very much.
[Additional material follows.]
ADDITIONAL MATERIAL
Prepared Statement of Senator Kennedy
Today we turn our attention to the important task of
keeping the hardworking men and women of America safer on the
job.
I commend Senator Murray for holding this hearing and
taking a lead on these issues that are vital to the safety and
health of America's workers. We plan a number of hearings this
year on worker safety and health--we've already had hearings on
the health effects of the 9/11 terrorist attacks, and Senator
Murray has convened hearings on the dangers of asbestos and
domestic violence in the workplace. We also will continue to
work on mine safety, an issue we worked closely on with Senator
Enzi and Senator Isakson last year, with the passage of the
MINER Act.
On Saturday, the Nation observes Workers' Memorial Day--the
anniversary of the passage of the Occupational Safety and
Health Act of 1970. It's a time to remember and honor the
workers who have died or been injured on the job. It's also a
time to look to the future and work to strengthen the Nation's
workplace safety and health laws.
Under OSHA, we've made significant progress. Since 1970,
according to the National Safety Council and the Bureau of
Labor Statistics, the overall job fatality rate has been
reduced by 78 percent. In manufacturing, the fatality rate
dropped by 73 percent and the injury rate by 59 percent. In
construction, the fatality rate declined by 84 percent and the
injury rate by 68 percent. The adoption of standards--like
those for confined spaces, dangerous equipment, and grain
dust--have prevented thousands of unnecessary deaths and
illnesses.
But even today, significant numbers of workers are still
not safe. In 2005, over 5,700 workers were killed on the job,
and over 4 million workers became ill or were injured. That's
16 workers who die every day, and nearly 12,000 who are injured
or become ill from dangerous conditions on the job.
Some groups are at greater risk. Hispanic workers are
almost 20 percent more likely to be killed on the job. Many of
them are immigrants who do not know their rights, and do not
receive safety training or protective equipment. This is an
issue that we also need to bear in mind as we look at
comprehensive immigration reform. Exploitation of the most
vulnerable workers puts all workers at risk.
These statistics represent real workers and their families.
They include men like Emanuel Torres-Gomez. Emanuel and his
three brothers lost their father when he was killed in a dryer
at a laundry processing plant in Oklahoma. The company knew it
was putting workers' lives at risk by failing to provide
guardrails, but it did nothing. They include daughters like
Michele Lewis, whose step-father, Mike, lost his life in a
trench collapse in Florida. The company failed to follow OSHA
safety standards that would have saved his life.
These families and thousands like them every year lose
parents, sons, and daughters in preventable workplace
tragedies. One reason is that companies blatantly ignore the
law, but are rarely held accountable. Criminal penalties are so
low that prosecutors don't pursue these cases. Employers who
repeatedly violate the law pay only minimal fines, which they
treat as just another cost of doing business.
Our health and safety laws need to be strengthened so that
fewer workers feel the pain that people like Michele and
Emanuel have suffered.
OSHA must do more to stop serious safety violations before,
not after, workers are injured or killed. It needs to develop
better standards for old hazards, and new standards for new
hazards posed by new technologies and new chemicals. The record
shows that when OSHA issues new standards and enforces them,
lives are saved. Yet over the last 6 years, needed safety
standards have languished, unfinished. It is time for swift
action on strong regulations to protect America's workers.
Many serious issues face us as we try to make American
workers safer on the job. We have an impressive group of
panelists today and I look forward to hearing from them.
Prepared Statement of Senator Enzi
Good morning. I want to thank Chairman Murray and Ranking
Member Isakson for scheduling today's hearing on the very
important topic of occupational safety and health. I have a
long-standing involvement in worker safety legislation and, as
I have noted on many occasions, fostering the development of
safer work places is one of the most important tasks of the
HELP Committee.
In the past decade or so we have witnessed steady progress
toward safer and healthier workplaces. For example, in 1992,
approximately 9 out of every 100 American workers suffered a
workplace injury. By 2003, that injury rate had been cut nearly
in half. Over the same period we have seen more than a 20
percent decline in the annual rate of fatalities from workplace
injuries.
While such progress is certainly encouraging, it should not
cause anyone to become complacent. The number of work-related
deaths and injuries still remains unacceptably high. Workplace
injuries continue to bring hardship to employees and their
families and to impose significant burdens on our economy. All
of us involved in this issue must continue our effort to make
our Nation's workers and workplaces safer.
If we are to be successful in this effort we must be
prepared to cast aside old assumptions, be willing to embrace
new ideas, and be candid enough to agree on some fundamental
realities.
Too often we focus solely on the handful of bad actors
whose behavior is plainly reprehensible. While such anecdotes
make great sound bites they do not make great policy. The fact
is that the overwhelming majority of employers are concerned
about the welfare of their employees; and, are fully prepared
to comply with laws aimed at enhancing their safety on the job.
The idea that employers do not care for their employees' safety
is a dangerously inaccurate myth. It is dangerous because it
creates and fosters an adversarial relationship between
employers and government safety agencies at the very time that
we need precisely the opposite. Cooperation, not confrontation
is essential in making our workplaces safer.
It is fortunate that most employers want to do the right
thing since without their cooperation there is little realistic
hope of continuing to improve workplace safety. Since employer
cooperation is essential, and since the vast majority of
employers are fully prepared to cooperate, it makes little
sense to base a system almost exclusively on inspections and
sanctions.
Simple mathematics makes it clear that we cannot ever hope
to inspect or sanction our way to greater job safety. There are
over 7 million worksites in the United States, and only around
2,400 OSHA inspectors. Since inspectors average around 40
inspections a year the shortcomings of an inspect-and-sanction
system are readily apparent.
If we truly want to continue to improve workplace safety we
need to think creatively; and, to fashion policies aimed at
getting results rather than headlines.
There are at least two areas that merit serious attention
in terms of formulating workplace safety policy. First, we need
to develop ways of leveraging existing resources. In the last
several Congresses I have introduced legislation that would do
precisely this by providing inducements for companies to
utilize the services of private safety consultants. However,
this is just one way of doing so. We must realize that while we
have limited governmental resources, we have a wealth of
private expertise. We need to continue to find practical and
useful ways to harness our private sector resources to leverage
our government efforts.
Second, we must look carefully and critically at the
regulatory model that has traditionally governed matters of
workplace safety. The traditional model has placed principal
emphasis on eliminating unsafe conditions, and placed only
minimal focus on eliminating unsafe behaviors. Engineering and
environment play important roles in workplace safety, but so
too does employee attitude and behavior. We need to develop a
more holistic regulatory model that addresses all the factors
that contribute to a safer workplace. A part of this must be a
regulatory model that reflects the reality that safety is
everybody's business.
It is my hope that the HELP Committee will closely examine
these and other issues related to OSHA regulation as we move
forward with any legislation in this area.
Prepared Statement of Senator Brown
I would like to thank the Chair and Ranking Member for
holding this extremely important hearing. I also want to thank
the witnesses who have joined us today.
Over the last 6 years there has been little congressional
oversight of the Occupational Safety and Health Act and what it
is, and is not doing, to protect workers in our ever-changing
workforce.
Congress passed the OSH Act more than 35 years ago and we
have made progress toward eliminating health and safety issues
at the workplace; however, our economy has changed dramatically
since 1970.
We have a responsibility to ensure that the backbone of our
economy is protected and that workers have the active support
of the Federal Government.
This Administration has ignored its responsibilities to
protect workers, and too often it takes a national tragedy like
the Sago mine disaster and other recent coal mining disasters
to demonstrate that safety measures for miners, and our
country's labor force as a whole, are inadequate.
To put it in perspective, 16 workers, on average, were
fatally injured on the job each day during 2005.
In Ohio, there were 168 workplace deaths in 2005. That's
three workers every week in our State who are victims of
preventable workplace incidents, like trench collapses, falls
from elevated platforms, job-related assault and violence, and
exposure to harmful toxins.
Every week, Ohio families mourn loved ones who do not come
home from work one day because of a horrible accident that
could have been avoided.
The Bush administration's record on worker safety is
dismal.
Under this Administration, workplace inspections have
declined. In 2005 only 57 workplace safety inspectors were
expected to cover the entire State of Ohio. With that level of
staffing, it would take 103 years to inspect each workplace
just once.
Through budget cuts and a shift in emphasis to voluntary
employer programs, the Administration is essentially telling
workers ``you're on your own.'' It harkens back to an era when
workers were treated like disposable goods. Those days are
over.
Congress must ensure OSHA is meeting its responsibilities
and adapting to new challenges.
Today I am proud to support ``The Protecting America's
Workers Act,'' re-introduced by Chairman Kennedy and Chairman
Murray. This bill is an important first step toward meeting the
new challenges workers face in the 21st Century.
The bill will provide OSHA protections to more workers,
including flight attendants, correctional officers and
government workers. It will increase penalties to law breakers,
make it easier for whistleblowers to come forward, and improve
transparency to ensure the public, and Congress, is informed as
we meet both the existing and emerging challenges of our
workforce.
Workplace safety isn't an option, it's an imperative.
American workers built this Nation's prosperity, and it is in
our Nation's interest to protect their health and safety in the
workplace.
Thank you, Madam Chair.
Worker Safety Report
tragedy has a human face*--ten stories of the toll weak safety laws and
enforcement take on workers and their families
All Americans agree that our safety and health laws should protect
employees while they are hard at work. They believe that our laws
should guarantee that employers make every effort to keep workers safe
on the job. This is an American ideal, and this ideal is at the heart
of the Occupational Safety and Health Act of 1970, which seeks to
provide a safe and healthy workplace for Americans.
---------------------------------------------------------------------------
* Worker Safety Report prepared by the Democratic Staff of the
Health, Education, Labor, and Pensions Committee
---------------------------------------------------------------------------
For too many of our hardworking men and women, however, that ideal
is far from the reality. Every day, an average of 16 employees are
killed on the job, and more than 12,000 suffer work-related injuries or
illnesses. These are numbers, but the human toll is real. To protect
the lives of our Nation's workers, and to give them the security of a
safe workplace that they deserve, we must fix the gaps in our safety
laws and the shortcomings in their administration.
The personal stories of workers and their families who have
suffered such workplace tragedies show us what needs to be done. Each
story highlights a weakness in our safety system that, if corrected,
would help prevent such tragedies in the future and make safe and
healthy workplaces a reality for more workers.
mike morrison--low penalties give employers no incentive to improve
workplace safety
In May 2005, Mike Morrison was an experienced, 48-year-old plumber
in Florida. He was installing pipes at a construction site in Pinellas
Park, when the nine-foot-deep trench he was working in collapsed. The
dirt buried him up to his chest, crushing his ribs and pelvis. In pain
and short of breath, he shouted to another worker that he thought his
back was broken. Rescuers arrived, but were called out of the trench
when it became clear that their lives were also in danger. Mike's arms
were free, so they tossed him a shovel so he could try digging himself
out. Mike dug around himself as best he could, but bled to death within
an hour from internal injuries.
An OSHA investigation found that the trench had not been secured
properly before workers were sent into it. There was no sloping,
shoring, or shielding, as required. The agency cited Mike's employer,
B&B Plumbing, with five safety violations. The fines totalled just
$21,000, a slap on the wrist. Two years earlier, the company had been
cited and fined for other safety violations of the OSH Act. As Mike's
step-daughter Michelle says, ``If the penalties had been more
substantial 2 years ago, maybe Mike's company would have complied with
the law and protected him properly, and maybe he'd still be with us
today.''
What America's Workers Deserve: Stiff penalties that make companies
think twice before breaking the law.
eleazar torres-gomez--companies repeatedly ignore known safety hazards
On March 6, 2007, Eleazar Torres-Gomez went to work at a laundry
facility in Tulsa, Oklahoma, where he had been employed for 7 years.
That morning, he was working alone in an area where clothes are washed
by an automated system and then sent up a conveyor belt system to an
industrial dryer.
One of his co-workers heard a banging noise, and came over to the
dryer. He discovered that Eleazar was trapped inside. Apparently, he
had been dragged up the conveyor belt with the wet clothes. For 20
minutes, the laundry worker was subjected to temperatures near 300
degrees. By the time maintenance workers arrived to get the dryer open,
Eleazar had died. OSHA is currently investigating this death.
The company had been fined by OSHA in 2005 for not installing
adequate protective guards on similar machinery at one of its laundry
plants in New York. What's more, OSHA had issued an industry directive
notifying companies of the need for such protective guards. As
Eleazar's eldest son, Emanuel said, ``If the company had added the
guards, which it knew were required by OSHA, my father would be alive
today. The sorrow we feel is overwhelming.''
What America's Workers Deserve: Strong enforcement against bad
actors who repeatedly ignore known safety hazards.
tracee binion--public-sector employees are not protected by safety laws
Tracee Binion is a science teacher in Pinson, Alabama. She is an
energetic person and enjoyed running marathons. In 2003, her school was
being renovated. Blow torches and chemicals were used without any
system of containment; a simultaneous roof replacement project gave off
asphalt fumes. Windows in Tracee's classroom could not be opened; the
regular ventilation system was shut down, and school administrators
said there was no other way to ventilate the building.
At first, Tracee had cold-like symptoms ``that never got better.''
After 5 days, she developed a persistent cough and ``couldn't catch her
breath.'' Soon she had developed headaches, severe disorientation, and
breathlessness. When she sought medical treatment, she was diagnosed
with chemical pneumonitis and chemically-induced asthma, often referred
to as ``occupational asthma.'' Her doctor said her x-rays looked like
she ``had been a heavy smoker all her life.'' Ultimately, she missed 4
weeks of school, underwent outpatient treatments for 6 weeks, and to
this day must manage her asthma with medication. She can no longer run
long distances.
Unfortunately, Tracee teaches in Alabama, a State where public
sector workers are not covered by our safety laws. They have no one to
call when they need protection from workplace hazards. Tracee and other
teachers were told repeatedly that there was nothing to be done.
Finally, the Governor intervened and closed the school.
What America's Workers Deserve: Safety and health laws to protect
Federal, State and other vulnerable workers.
bob julian--safety hazards are recognized in one place and ignored in
another
Bob Julian was an experienced worker at a tire factory in Oklahoma
City, Oklahoma. His co-workers knew him as a very conscientious and
safe worker who was dedicated to his job and his company. He was also a
longtime member of the Rubber Workers Union. In October 1993, he was
setting up a tire-building machine that unexpectedly began operating.
The machine crushed and killed Bob. An investigation revealed that the
company had failed to follow OSHA's lockout, tagout standard, which
requires that hazardous machinery be locked down with the power off and
tagged with a warning sign to protect workers from being injured by an
unexpected start-up. If the company had complied with that OSHA
standard, Bob would not have lost his life.
Earlier that year, the company had been cited for violating OSHA's
lockout, tagout standard at another tire-building plant in Des Moines,
Iowa. The company therefore knew about the deadly hazard to its
workers, but failed to take any action to protect them. After an
investigation, OSHA issued citations and proposed penalties of $7.5
million.
What America's Workers Deserve: Requiring employers to implement
health and safety protections on a national level.
ken marcantonio--workers are penalized for reporting dangerous work
conditions
Ken Marcantonio worked as a physicist and engineer, testing
technology that detects explosives and weapons. While employed by a
government contractor, he was assigned to an underground vault at the
Denver airport. Within days, Ken became terribly ill with a high fever
and vomiting, and began coughing up blood. He later learned that
another employee had previously become ill at the same site.
When Ken was scheduled to return to the site to work, he told his
managers that it needed to be inspected and cleaned before anyone else
became ill from the environmental contamination. His employer refused,
and told him that no inspection would be performed. Meanwhile, Ken's
doctor had became concerned that his symptoms were similar to those of
the hantavirus, which had killed another person recently in the Denver
region.
Alarmed that his employer would require him to return to such a
dangerous job site, Ken contacted OSHA, as well as the CDC, and the
Denver Department of Health. The day after OSHA contacted his employer
to investigate the complaint, Ken was fired, his security clearance was
canceled, and he was escorted off of the facility as though he had
committed a crime--when he had simply reported an unsafe work
environment to his managers and OSHA.
What America's Workers Deserve: Stronger protections for workers
who speak out about dangerous work conditions.
jean lucus--workers have no protection from common musculoskeletal
injuries
Jean Lucus is an experienced registered nurse whose life was
changed forever in February 2004. While caring for an obese, 600-pound
patient recovering from surgery, Jean was assigned to physically move
the patient from a chair to her bed. She called in a patient-care
technician to help her with the lifting. As the patient lay back in
bed, one leg hung painfully over the bedside, and Jean responded
quickly to lift the leg and alleviate the pain. Suddenly, Jean felt a
sharp pain in her lower back, and sought treatment at an emergency room
a few hours later. Jean missed 2 weeks of work. An MRI revealed
multiple herniated and slipped disks in her back and neck.
As Jean put it, ``It doesn't matter how good your lifting technique
might be, the cumulative effect takes its toll. How many years can you
abuse your body before it says `no more?' '' After 24 years of lifting
patients, regularly lifting a total of 2.7 tons in each 12-hour shift,
Jean's body said, ``No more.'' Lifting devices exist to help nurses,
but employers are not required to use them. Despite the fact that such
musculoskeletal injuries account for one-third of all reported injuries
in this country, OSHA has not issued a standard for safe lifting.
What America's Workers Deserve: Federal standards that address
lifting and other musculoskeletal injuries.
eric peoples--no safety standards exist for thousands of toxic
chemicals
In 1997, Eric Peoples began working at the Jasper Popcorn Company
plant. After a few months, he was promoted to work as a mixer,
combining popcorn, oil, butter flavor, and salt into microwaveable
bags. It was a good job, and he was happy to get it. But Eric soon
learned that he was being exposed to high levels of diacetyl.
The chemical gives popcorn a buttery taste, but is also an extreme
health hazard. The company that supplied Jasper Popcorn with the butter
flavor had since 1994 treated it as a hazardous chemical in its own
plant, requiring its own workers to wear respirators and handle it only
in restricted areas. Diacetyl suppliers and other flavor companies had
reported that the chemicals had caused problems in rats and also in
workers. In 1997, the Federal Government had warned flavor companies
about these health hazards. Despite that warning, the buckets of
flavoring that Eric was mixing were labeled as a product with ``no
known health hazards.''
Today, Eric, at age 35, suffers from bronchiolitis obliterans, a
severe and progressive lung disease. He has only 24 percent of his
original lung capacity and is on the inactive lung transplant registry;
a disease like pneumonia could cause him to need an immediate
transplant. The average rate of survival after a lung transplant is
only 5 years. A decade after Eric lost most of his breathing ability,
OSHA has not yet issued a hazardous chemical standard for diacetyl.
What America's Workers Deserve: Standards to protect workers from
toxic substances commonly used in the workplace.
brian pluck--employers ignore their duty to provide a safe workplace
Brian Pluck, a 24-year-old steelworker and brakeman, lost his life
in the early morning of December 27, 2006, at the Mittal Steel plant in
Coatesville, Pennsylvania. When he died, Brian was doing what most
brakemen do in steel plants with in-plant railroads: he was jumping
aboard a train for a ride down the length of the facility. The long
distances in steel mills make it necessary for steelworkers to ride the
cars between locations. Unfortunately, the railcar Brian attempted to
board had no stirrups, ladders, or handrails, and he slipped under the
moving car and was killed.
OSHA has never issued a safety standard for in-plant railroads,
despite the fact that related accidents are the leading cause of death
by traumatic injury in the steel industry. The Federal Railroad
Administration has no jurisdiction over railroads inside an industrial
plant, but its regulations require safety equipment, such as stirrups,
ladders, or handrails, on all outdoor railcars for worker safety. The
dangers of in-plant railcars, and the need for such safety equipment,
are widely known in the steel industry. Under the OSH Act, employers
have a ``general duty'' to protect against such known hazards, but too
often fail to do so.
What America's Workers Deserve: Aggressive enforcement of
employers' duty to provide a safe workplace and eliminate known safety
hazards.
hector rivas--osha inspections: too little, too late
On March 9, 2006, Hector Rivas, a mechanic, was working alone at
the bus yard on Freeport Street in Boston, Massachusetts. As was the
company's regular procedure, Hector used a gasoline-powered jumpstarter
to start school buses on that cold winter morning. He was using the
jumpstarter in an enclosed service truck. The carbon monoxide expelled
by the jumpstarter overwhelmed him. He fell unconscious, then died.
OSHA found that the company had violated multiple safety measures
that would have saved Hector's life. For instance, the company failed
to install adequate ventilation controls to reduce the build-up of
carbon monoxide in the mechanics' work area, failed to train the
mechanics in basic safety procedures, and did not provide them with
personal protective equipment.
All of those routine safety measures would have been identified by
an OSHA inspection, but none had taken place before Hector's death. One
simple OSHA inspection would have saved Hector's life and made his
fellow mechanics safer on the job. What is more, the ventilator for the
service truck that would have prevented this tragedy costs less than
$50.00. Instead, the company faced an OSHA fine of $70,000 for its
willful negligence that led to Hector's death.
What America's Worker's Deserve: Safety inspections that find and
fix dangerous conditions before workers are hurt or killed.
underfunding of osha hurts all workers
A common thread runs through many of these personal stories of
worker injuries and death: OSHA has much more to do to keep America's
workers safe on the job. New standards are needed for existing and
emerging workplace hazards; more inspections are required to find
violations. America's workers also need and deserve stronger
enforcement and tougher penalties to deter the worst actors, as well as
stronger protections for whistleblowers who speak up about safety
concerns.
A serious lack of resources at OSHA makes it much more difficult to
accomplish these tasks. Since 2001, the OSHA budget has been cut by 6
percent in real dollars, and hundreds of positions have been
eliminated. President Bush's recent budget proposals continue to
maintain insufficient funding levels.
The results of this cost-cutting are grim. Today, Federal OSHA has
only 818 safety and health inspectors, and the State OSHAs have 1,294.
Yet OSHA has jurisdiction over 130 million workers in the 8.5 million
workplaces--about one OSHA inspector for every 63,670 workers.
OSHA is a small agency with a large and vital mission: to protect
the hardworking men and women who put their lives at risk when they go
to work to earn a living for their families. We must provide the
resources OSHA needs to accomplish this goal. We owe America's workers
no less.
______
Response to Questions of Senator Kennedy by David Michaels
Question 1. In your testimony, you mention problems in the
collection of data that have led to inaccurate information on
occupational illnesses and injuries. Please explain what the
impediments are to accurate data collection. Can you recommend specific
strategies for overcoming them and improving our data on illness and
injury rates?
Answer 1. Governmental and non-governmental organizations have
examined our Nation's system for collecting and analyzing data on work-
related injuries, illnesses and fatalities,\1\ \2\ \3\ as have numerous
independent researchers.\4\ \5\ \6\ \7\ \8\ \9\ \10\ Without exception,
all of these sources describe one or more of the following limitations
with the existing data: (1) underreporting by employers because of
misunderstandings about the recording and reporting systems; (2)
inaccurate records of work-related injuries and illnesses by employers
because it is not a high priority for them; and (3) intentional under-
reporting by employers.
In 1987, a special panel convened by the National Academy of
Sciences issued its report Counting Injuries and Illnesses in the
Workplace: Proposal for a Better System.\1\ The panel offered 24
specific recommendations to enhance the Bureau of Labor Statistics'
system for collecting and analyzing work-related injuries, illnesses
and deaths. It would be worthwhile for BLS to convene an advisory
committee for a short period of time (e.g., 6 months) for the purpose
of reviewing these 24 recommendations and determining which were
implemented or are no longer relevant. The advisory committee should be
comprised with as many of the original members as possible, along with
a select number of additional members, including relevant officials
from BLS, OSHA (i.e., those most familiar with the agencies'
recordkeeping and reporting regulations) and NIOSH. The committee's
report should identify the specific obstacles (i.e., legal, regulatory,
and financial) which hinder adoption of the recommendations.
Question 2. Similarly, you discuss in your testimony numerous
impediments to OSHA's administration of standard setting and
rulemaking. Could you please expand on those subjects with an eye
towards what Congress and OSHA can do to correct those problems?
Answer 2. There are several problems related to OSHA's inability to
promulgate in a timely manner new health and safety standards. One
needs to look no further than OSHA's rulemaking history for chemical
contaminants: in its 37-year history, the agency has only issued
comprehensive health standards for 31 hazardous substances.\11\ In the
last 10 years (1997-2006), the agency has only issued two of these
protective rules.\12\ The process is cumbersome and time consuming;
many recognized hazards are not addressed by comprehensive OSHA
standards, leaving workers at risk.
One relatively straight-forward solution available to Congress is
to amend 1910.1000, Table Z-1 to conform with adopted value contained
in the American Conference of Governmental Industrial Hygienists 2007
TLVs for time-weighted averages, short-term exposure limits, and
notations.
A second solution is for Congress to require all employers to adopt
a safety and health management program to identify hazards and
potential hazards, adopt controls to prevent workers' exposure to the
hazard, and training, and employee involvement.
References
1. National Research Council, Counting Injuries and Illnesses in
the Workplace: Proposal for a Better System, 1987.
2. The Keystone Center, Keystone National Policy Dialogue on Work-
related Illness and Injury Recordkeeping, 1989.
3. General Accounting Office. Occupational Safety & Health:
Assuring Accuracy in Employer Injury and Illness Records, 1988; Options
for Improving Safety and Health in the Workplace, 1990; Occupational
Safety & Health: Changes Needed in the Combined Federal-State Approach,
1994; Occupational Safety & Health: Efforts to Obtain Establishment-
Specific Data on Injuries and Illnesses, 1998; Workplace Safety and
Health: OSHA Can Strengthen Enforcement through Improved Program
Management, 2002.
4. Azaroff LS, Levenstein C, Wegman DH. Occupational injury and
illness surveillance: conceptual filters explain underreporting. Am J
Pub Health 92(9): 1421-1429 (September 2002).
5. Seligman PJ, Sieber WK, et al. Compliance with OSHA
recordkeeping requirements. Am J Pub Health 78(9): 1218-1219 (September
1988).
6. McNeely EM. Who's counting anyway?: the problem with
occupational safety and health statistics. J Occup Medicine 33(10):
1071-1075 (October 1991).
7. Leigh JP. A report card for occupational injuries and illnesses.
Am J Ind Medicine 33:422-424 (1998).
8. Rosenman KD, Gardiner JC, et al. Why most workers with
occupational repetitive trauma do not file for workers' compensation. J
Occup Environ Med 42(1): 25-34 (January 2000). Friedman LS, Forst L.
The impact of OSHA recordkeeping regulation changes on occupational
injury and illness trends in the U.S.: a time series analysis. Occup
Environ Med (February 2007).
9. Rosenman KD, Kalush A, et al. How much work-related injury and
illness is missed by the current national surveillance system? J Occup
Environ Med 48(4): 357-365 (April 2006).
10. Welch LS, Dong X, Carre F, Ringen K. Is the apparent decrease
in injury and illness rates in construction the result of changes in
reporting? Int J Occup Environ Health 13:39-45 (2007).
11. Asbestos; 3,3 dichlorobenzidine; chloromethyl methyl ether;
ethyleneimine; bis(chloromethyliether); aminodiphenyl; alpha-
naphthylamine; N-nitrosodimethyl amine; beta-naphthylamine; 4-
nitrobiphenyl; benzidine; 4-dimethylaminoazobenz-
ene; 2-acetylaminoflourene; beta-propiolactone; coke-oven emissions;
vinyl chloride;
arsenic; benzene; acrylonitrile; ethylene oxide; formaldehyde; 4,4-
methylenedi-
aniline; cadmium; 1,3 butadiene; methylene chloride. cotton dust, lead,
DBCP, hex-
avalent chromium, bloodborne pathogens, cotton dust.
12. Methylene chloride final rule issued in 1997 and hexavalent
chromium final rule issued in 2006.
______
Response to Questions of Senator Enzi by Peg Seminario
and David Michaels
peg seminario
Question 1. Ms. Seminario, as you know the AFL-CIO publishes an
annual report entitled ``Death on the Job.'' The report includes as
``workplace fatalities'' a substantial number of fatalities that
actually occur away from the workplace, or are not otherwise within
OSHA's jurisdiction. For example, over 25 percent of the fatalities
cited in this year's report involve highway crashes. In some States,
most notably rural ones, the percentage is even higher. Do you believe
that including these fatalities, and/or others over which OSHA does not
have jurisdiction, in the statistical compilation is a fair indicator
of OSHA's effectiveness? Do you think it is a fair indicator of a given
State's effectiveness or commitment to safety in the workplace?
Answer 1. The AFL-CIO annual report ``Death on the Job'' provides a
national and state-by-state review of job safety and health in the
United States. In preparing the report, we rely on and utilize the
occupational fatality and injury data compiled by the Department of
Labor Bureau of Labor Statistics (BLS). Both OSHA and BLS include work-
related fatalities and injuries that occur away from the workplace in
the definition of what is considered work-related for the purpose of
recording and reporting. Fatality rates and injury and illness rates
reported by the BLS are utilized by OSHA and others for measurements of
effectiveness. While there are limitations in this data, particularly
reported injury and illness data which undercount the actual incidence
of work-related cases, this data provides one metric to evaluate
workplace safety.
Question 2. Given the high percentage of highway crashes contained
in the report is it not logical to assume that we could achieve an even
more dramatic reduction in ``workplace'' fatalities through increased
enforcement of traffic laws than through increased OSHA regulation or
enforcement?
Answer 2. According to the final BLS fatality data, in 2005 highway
incidents were responsible for 1,437 of the total 5,734 fatal workplace
injuries, or 25 percent of fatal injuries. Better enforcement of
traffic laws could help reduce these highway fatalities, but would not
address the causes of 75 percent of fatal workplace injuries, nor the
estimated 50,000 occupational disease deaths that occur each year. The
majority of workplace injuries, illnesses and deaths are caused by
exposures to occupational hazards which are firmly in OSHA's
jurisdiction, and not subject to regulation or enforcement by other
agencies. Thus the most effective means to reduce the majority of work-
related injuries, illnesses and fatalities is through OSHA regulation
and enforcement to reduce exposure to major workplace hazards,
supplemented by outreach, education and related activities.
Question 3. The report also references a bill which I introduced in
the 109th Congress that was entitled ``The Occupational Safety and
Partnership Act'' and claims this legislation would have ``weakened''
OSHA. The bill would encourage the use of outside consultants to
leverage OSHA's limited resources and increase compliance. Do you
believe that the extensive review of the workplace by safety experts
and the implementation of a comprehensive safety plan provided for in
the legislation is so outweighed by the penalty exemption that my bill
would ``weaken'' workplace safety? Why?
Answer 3. Strong, effective enforcement is one of the cornerstone's
of the OSHA law and OSHA program. I believe that the Occupational
Safety and Partnership Act would make it much more difficult for OSHA
to exercise its enforcement authority. The bill creates a penalty
exemption for employers who implement a safety and health plan and are
certified as being in compliance by a private consultant. The
judgements and determinations of the consultant create a safe harbor
and supercede the government's determinations. If upon inspection, OSHA
finds that the employer is not in compliance, and that the review and
the determinations made by the consultant deficient, OSHA must none-
the-less accept these determinations.
OSHA's current penalty policies already provide for penalty
adjustments/reductions for employers who have implemented a safety and
health program and for the good faith exhibited by an employer. We do
not agree that a total penalty exemption is wise or warranted.
We agree that implementing comprehensive safety and health programs
in the workplace is important. We believe that the best means to
achieve this is for OSHA to issue a safety and health program rule,
similar to what was issued in California and other States, and to
provide assistance, outreach and training to help employers meet their
obligations. Private consultants could help employers to comply with a
safety and health program rule and implement effective safety and
health programs.
It should be noted that Federal OSHA was in the process of
developing a safety and health program rule and was well into the
regulatory process. The rule was widely supported by safety and health
professionals, unions and many employers. But in 2003, that rule was
withdrawn from the regulatory agenda by the Bush administration, and
efforts by OSHA to implement safety and health programs on a wide-scale
basis ceased.
Question 4. Do you believe that programs such as VPP that provide
some exemption on the enforcement side ``weaken'' workplace safety?
Why?
Answer 4. The AFL-CIO has generally been opposed to any enforcement
exemptions. However, our main concern with VPP is that it is a very
resource intensive program, and we question whether scarce government
resources should be directed toward a recognition program for the
``best'' employers, rather than focusing on employers with poor safety
and health records and unsafe and unhealthful working conditions.
Question 5. The AFL-CIO report previously referenced also
criticizes my bill because it would impose penalties on employees that
violate safety rules by failing to wear protective equipment. Isn't
workplace safety everybody's responsibility? If penalties enhance
compliance then why are penalties aimed at employee compliance
inappropriate?
Answer 5. Under the Occupational Safety and Health Act, the
employer has legal responsibility to provide safe and healthful working
conditions and to comply with OSHA standards, therefore, it is
appropriate that OSHA citations and penalties be directed toward
employers who fail to meet their legal obligations and comply with the
law.
The AFL-CIO does believe that employees have a responsibility to
comply with safety rules, and that disciplinary measures are
appropriate for employees who do not comply with these rules. However,
we believe that employers, and not the government are in the best
position for enforcing compliance with employer safety rules.
Question 6. Do you believe we should eliminate the penalty
provisions that are currently provided for under The Mine Safety Act?
If not, why should there be employee penalties under the Mine Act but
not under the OSH Act?
Answer 6. The AFL-CIO does not have a position on whether the
employee penalty provisions provided under the Mine Safety and Health
Act should be eliminated. This is not something we have advocated.
However, the MSHA provisions are limited to willful violations by an
employee of standards related to smoking or carrying of smoking
materials. Such violations in a mining environment have the potential
to cause a catastrophic event that endangers the lives of many. This is
not analogous to failures of employees to wear personal protective
equipment, which have been the focus of employee penalty proposals
under OSHA.
David Michaels
Question 1. To the extent that workplace injury and fatality
statistics are used as a measure or indication of OSHA's effectiveness
in achieving or improving occupational safety should we be including
deaths and injuries that occur outside of OSHA's jurisdiction in such
statistical compilations?
Answer 1. Collecting and analyzing work-related injury, illness,
near-miss and fatality data serves multiple purposes, many of which
were articulated by Congress when it passed the Occupational Safety and
Health Act of 1970. Within the Statute's ``Congressional Findings and
Purpose,'' lawmakers recognized the value of recordkeeping and
reporting system to ``help achieve the objectives of this Act and
accurately describe the nature of occupational safety and health
problems.''
The need for accurate data on workplace conditions is no less
important today, yet our current system is disjointed and deficient.
One key objective of an occupational health and safety reporting system
is to assess which types of injuries, illnesses and fatalities are
occurring and to develop prevention efforts to address these specific
problem areas. Without complete and accurate data, such efforts are not
as effective.
There may be some components of workplace injury, illness and
fatality statistics that are not used in measuring OSHA's
effectiveness, just as there may be some components that are not used
in evaluating employer safety programs (see answer to Question 2). But
as noted above, recordkeeping and reporting have multiple purposes,
including priority setting and estimating the extent and distribution
of the costs of workplace injuries, illnesses and mortality.
Question 2. To the extent that workplace injury and fatality
statistics are used as a measure or indication of an employer's
effectiveness in securing or improving occupational safety should we be
including in such statistical compilations deaths and injuries that
occur away from the worksite where the employer has no practical
control over employee behavior that is contrary to external law or
employer policy?
Answer 2. As I noted above, there may be some components of
workplace injury, illness and fatality statistics that are not used in
measuring employer safety programs, just as there may be some
components that are not used in evaluating OSHA effectiveness (see
answer to Question 1). But, to repeat the answer above, recordkeeping
and reporting have multiple purposes, including priority setting and
estimating the extant and distribution of the costs of workplace
injuries, illnesses and mortality.
Furthermore, there are many different jobs in which workers are not
at fixed-worksite, including window-washers, landscapers, homecare aids
and visiting nurses, residential roofers and fisherman. Although these
kinds of worksites may pose unique challenges for an employer in terms
of ensuring workers with necessary safety and health protections, it
would make little sense to remove them from any injury or illness
recordkeeping and reporting system.
[Editor's Note: Due to the high cost of printing, previously
published materials submitted for the hearing record are not reprinted.
To review related articles, please see the following: www.occenvmed.com
to review the article entitled, ``The impact of OSHA recordkeeping
regulation changes on occupational injury and illness trends in the US:
a time-series analysis'' by Lee S. Friedman, Linda Forst; ACOEM.org to
review the article entitled, ``How Much Work-Related Injury and Illness
is Missed By the Current National Surveillance System?'' by Kenneth D.
Rosenman et al.; and www.defendingscience.org/SKAPP-Staff.cfm to review
the article entitled, ``Scientific Evidence in the Regulatory System:
Manufacturing Uncertainty and the Demise of the Formal Regulatory
System'' by David Michaels, M.P.H., Ph.D. and Celeste Monforton,
M.P.H.]
[Whereupon, at 10:00 a.m., the hearing was adjourned.]