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Henshaw and Howard: Reform of OSHA is likely
Former OSHA, NIOSH heads predict change
Major reform of the U.S. Occupational Safety and Health Administration may be delayed by the ailing economy, but it is inevitable as the agency needs to adapt to the workplace realities of the 21st century, according to the former heads of OSHA and the National Institute for Occupational Safety and Health (NIOSH).
That is likely to mean tougher penalties and new standards, but also collaboration and flexibility, said John Henshaw , CIH, former assistant secretary of labor, and John Howard , MD, JD, LLM, former director of NIOSH, in a webcast by the American Society of Safety Engineers. Henshaw left OSHA in 2005 and now has his own consulting firm. Howard has been serving as a temporary senior adviser to Julie L. Gerberding, MD, director of the Centers for Disease Control and Prevention in Atlanta, who declined to reappoint him to his post last year.
Henshaw and Howard agreed that OSHA is likely to change significantly during an Obama administration though probably not within the first two years while stabilizing the economy takes priority. "The new OSHA needs to be reworked completely from stem to stern, and it needs to ... [address] our current issues and our current work force," Henshaw said.
Some possible changes predicted by Henshaw and Howard:
Tougher penalties for employers who violate safety standards.
A revision of the permissible exposure limits for chemical exposures.
A change in the balance between cooperative programs and enforcement.
A new approach that requires employers to perform risk reduction but focuses less on standard setting.
Greater involvement of employees in safety and health programs.
A possible reduction in the OSHA resources devoted to voluntary programs.
Restoring the requirement to report musculoskeletal disorders on the OSHA 300 log.
Henshaw and Howard noted that today's workers are more diverse and older, more likely to be independent contractors, and less likely to stay with a single employer over their lifetimes. That is far different from the employment scene in 1970, when the Occupational Safety and Health (OSH) Act was passed.
Over the years, a number of bills have been introduced to reform OSHA. As a U.S. senator, Barack Obama had co-sponsored the "Protecting America's Workers Act," which would raise the penalties for all OSHA citations and would provide for possible criminal penalties for willful violations that result in "serious bodily injury" to employees. The maximum penalty would be $250,000 and 10 years for a willful violation resulting in employee death.
The bill, sponsored by Sen. Edward Kennedy (D-MA), also would extend OSHA coverage to public employees and would provide greater whistle-blower protections to employees.
"I encourage some of the reform legislation, as it pertains to criminal sanctions and increased penalties," said Henshaw. "The companies that are not performing should be hit with the proverbial two-by-four to get them to change."
But he added, "OSHA's objective is not to cite and penalize. Its overall objective has to be to create change, which means a safer workplace [that's] in compliance."
Rethinking the role of OSHA
A new direction for OSHA ultimately will require a new statute, contends Henshaw. "We're tinkering with a process or a statute that is out of date. While the tinkering may be useful long-term, it's not going to serve us well," he said.
OSHA also has been hampered by legislative actions, administrative review panel rulings and court decisions. It can take 10 years for OSHA to promulgate a new standard. There must be a mechanism for responding to new hazards that doesn't require lengthy standard-setting, Henshaw said.
"I do not believe, because of the dynamic nature of our workplaces today, that we can expect any agency to write enough standards to cover all the risks that workers are subjected to," he said. "Our best way to deal with that is coming up with some generic processes or systems that will ensure continuous improvement, continuous risk reduction beyond a specific standard."
Henshaw suggested that might be a standard that requires employers to have an injury and illness program and identifies risks and works to eliminate them.
A standard of that type exists in California, where Howard once headed Cal-OSHA, the state's worker safety and health program. He suggests a "hybrid" approach that includes some standard-setting but also relies on employers to assess and address risks.
Neither Henshaw nor Howard expect to see another comprehensive ergonomics standard similar to the one struck down by Congress in 2001. But Howard asserted that OSHA will need to address MSDs, which are the leading workplace injury. Action may range from increased education and assistance to employers to requirements for risk reduction or increased use of the "general-duty clause" to provide a workplace free of serious hazards.
"OSHA will become irrelevant if it can't handle this most prevalent of recordable injuries," says Howard.