Stymied OSHA is politically incorrect in campaign season

'OSHA regs don't kill jobs, they stop jobs from killing workers.'

Growing anti-regulatory pressure and presidential politics bring new hurdles for the U.S. Occupational Safety and Health Administration, which was already known for its snail-like pace of rulemaking. The agency has delayed the release of several key regulations, and observers expect little to emerge in the midst of an election year.

The recordkeeping rule that would add a column to the OSHA 300 log for musculoskeletal disorders (MSDs) seemed on a fast-track in 2010, with implementation scheduled for 2011. It became mired in an unusually lengthy review in the Office of Management and Budget, and OSHA withdrew the rule. The agency gathered more comments and was expected to reissue it in time for the rule to become effective in 2012.

But by the fall, there was no word on an MSD column.

OSHA administrator David Michaels, MD, MPH, has said that issuing an Injury and Illness Prevention Program standard (I2P2), requiring employers to have a program to address workplace hazards, is his top priority. A draft version was due by June 2011, according to the agency's regulatory agenda. But again, no sign of I2P2 has emerged.

"I've been amazed at the extent to which OSHA's agenda has been affected," says Brad Hammock, an attorney with Jackson Lewis in Reston, VA, who specializes in occupational health law and was counsel for safety standards at OSHA from 2005 to 2008.

"There's never one thing that causes a delay in a regulatory initiative by OSHA. There are things that go on behind the scenes that have nothing to do with politics. It could be something as simple as difficult technical issues with a rule. But I suspect it's a combination of a lot of things [including politics]," he says.

Republicans have put OSHA in their sights as they criticize "job-killing" regulations. "We're coming up to an election year. Jobs are the top issue in the upcoming election and a dominant theme has been government creating an atmosphere where jobs can be created. OSHA has been an easy whipping boy, like the EPA [Environmental Protection Agency], for that theme," says Eric J. Conn, an attorney who heads the OSHA group at Epstein Becker and Green in Washington, DC.

Injuries down, but still high in HC

The criticisms of OSHA came as the agency marked another decline in occupational injury and illness rates. Hospital injury and illness rates also declined, but at 7 per 100 fulltime workers, they remained double the rate for all private industry. Nursing homes were among the most hazardous workplaces. The health care industry was the only one to receive a cautionary comment from U.S. Secretary of Labor Hilda L. Solis.

"We remain concerned that more workers are injured in the health care and social assistance industry sector than in any other, including construction and manufacturing, and this group of workers had one of the highest rates of injuries and illness ... ," she said in a statement. "The Department of Labor's Occupational Safety and Health Administration will continue to work with employers, workers and unions in this industry to reduce these risks."

Solis also highlighted OSHA's recent emphasis on recordkeeping enforcement. (See HEH, September 2011, cover.)

Just a couple of weeks before, House Republicans invited Michaels to a hearing before the House Committee on Education and the Workforce, Subcommittee on Workforce Protections. In his opening statement, chairman Tim Walberg (R-MI) cited the agency's "punitive approach to workplace safety," saying that "... many of us remain concerned whether it is the best approach to worker safety."

In his comments, Michaels detailed OSHA's successes and said, "Clearly, it's not only good business to prevent workplace injuries and illnesses, but the small amount of money that goes to fund this agency is a worthwhile investment for the general welfare of the American people."

He later told the lawmakers, "OSHA regulations don't kill jobs, they stop jobs from killing workers."

Slashing OSHA's budget?

Republicans have taken aim at OSHA by trying to constrain the agency's funding. They attached a rider to the House appropriations bill that would prevent OSHA from issuing the Injury and Illness Prevention Program rule, implementing the MSD column, or enforcing a compliance directive on stiffer fall protection in residential roofing.

Business groups such as the National Federation of Independent Business said OSHA downplayed the time and cost to employers to report work-related MSDs. (These are injuries that must be reported anyway, but employers would need to decide if they meet OSHA's definition of an MSD.) And although OSHA says the recordkeeping is "solely to improve data gathering regarding work-related MSDs," critics fear it is a first step toward a return to an ergonomics regulation. A comprehensive ergonomics rule was rescinded by Congress in 2001.

Meanwhile, U.S. Sen. Tom Coburn (R-OK) has attacked OSHA in the Senate and proposed slashing the agency's budget, saying it should move away from enforcement and toward voluntary compliance programs. House Republicans also have tried to slash OSHA's budget.

How will the anti-OSHA foment impact OSHA? "These riders are political showmanship," says Conn, who said he doesn't expect them to survive the appropriations process.

Rules reduce injuries, deaths

Yet political attacks weaken OSHA, either by making it more timid or by actually altering its ability to regulate, says Justin Feldman, MPH, MSW, worker health and safety advocate at Public Citizen, a Washington, DC-based advocacy group.

Already, OSHA has been constrained by court decisions and corporate backlash that influences Congress and presidential administrations, he says. In a review of OSHA activity, Feldman found that rulemaking slowed under the Bush and Obama administrations. It takes about six years for OSHA to issue a rule, while it once took less than a year, he says.

In fact, contrary to the claims against it, OSHA's regulations save lives and money by preventing injuries, says Feldman. The delay of five pending regulations cost about 100,000 serious injuries, 30,000 occupational illnesses and hundreds of fatalities, based on OSHA's health analysis of the potential impact of the rules, Feldman said in his Public Citizen report.

The Bloodborne Pathogen Standard, which was not included in Feldman's report, is often cited as an example of a successful regulation. In 1983, the year the hepatitis B vaccine became available, 10,721 health care workers acquired hepatitis B. By 1999, seven years after OSHA began requiring health care employers to offer the hepatitis B vaccine, the number had dropped to 384.

The benefits of regulations to employers, employees and society are rarely acknowledged in the political arena, says Feldman.

"Facts are not all that important in politics. They're important in policy, but not in politics," he says. "The message we get from the Republicans [is that] no one's proposing that we cut back existing OSHA regulations. [But] when it comes to proposing a new one, that's too much."

Still moving at 'glacial pace'

So where does this leave OSHA? Despite the opposition from business groups, the MSD recordkeeping rule seems likely to move forward, observers say. It doesn't actually require new reporting, just identification of MSD injuries by checking a box.

Employers can use the information on MSDs to analyze their injuries. But over time, OSHA also could use the information to demonstrate that there was a "recognized hazard," one of the potential hurdles of issuing citations under the general duty clause, says Conn. "This is a major tool for them," he says.

I2P2 remains a priority for Michaels, but its fate may be determined by the presidential election. OSHA may lay low during 2012, especially on a regulation that affects all industries. "It's hard to believe they're going to be pushing [new regulations] out next year if they haven't been able to do that this year," says Hammock.

Yet delayed action is not the same thing as abandoning the regulatory efforts, notes Conn. "They move forward. They just move forward at a glacial pace," he says.

Meanwhile, regulatory action continues at the state level, with new laws on safe patient handling (in California) and workplace violence in hospitals (in Connecticut) and state regulations such as the California Aerosol Transmissible Diseases standard.

Reference

1. Feldman, J. OSHA Inaction: Onerous Requirements Imposed on OSHA Prevent the Agency from Issuing Lifesaving Rules. Public Citizen: Washington, DC, October 2011. Available at http://bit.ly/s8O2QB